G.R. No.
143008 June 10, 2002 The trial court6 (RTC) ruled in favor of Respondent Borja and held
SMITH BELL DODWELL SHIPPING AGENCY
CORPORATION, petitioner,
vs.
CATALINO BORJA and INTERNATIONAL TO WAGE AND
TRANSPORT CORPORATION, respondents.
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is liable
for all natural and proximate damages caused to persons and property
by reason of negligence in its management or navigation. The
liability for the loss of the earning capacity of the deceased is fixed
by taking into account the net income of the victim at the time of
death -- of the incident in this case -- and that person's probable life
expectancy.1âwphi1.nêt
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, challenging the March 6, 2000 Decision1 and the
April 25, 2000 Resolution2 of the Court of Appeals3 (CA) in CA-GR
CV No. 57470. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the instant appeal is
hereby DENIED. The questioned decision of the lower
court is hereby AFFIRMED in toto. No pronouncement as
to costs."4
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
"It appears that on September 23, 1987, Smith Bell [herein
petitioner] filed a written request with the Bureau of
Customs for the attendance of the latter's inspection team
on vessel M/T King Family which was due to arrive at the
port of Manila on September 24, 1987.
"Said vessel contained 750 metric tons of alkyl benzene
and methyl methacrylate monomer.
"On the same day, Supervising Customs Inspector Manuel
Ma. D. Nalgan instructed [Respondent Catalino Borja] to
board said vessel and perform his duties as inspector upon
the vessel's arrival until its departure. At that time, [Borja]
was a customs inspector of the Bureau of Customs
receiving a salary of P31,188.25 per annum.
"At about 11 o'clock in the morning on September 24,
1987, while M/T King Family was unloading chemicals
unto two (2) barges [--] ITTC 101 and CLC-1002 [--]
owned by [Respondent] ITTC, a sudden explosion occurred
setting the vessels afire. Upon hearing the explosion,
[Borja], who was at that time inside the cabin preparing
reports, ran outside to check what happened. Again, another
explosion was heard.
"Seeing the fire and fearing for his life, [Borja] hurriedly
jumped over board to save himself. However, the [water]
[was] likewise on fire due mainly to the spilled chemicals.
Despite the tremendous heat, [Borja] swam his way for one
(1) hour until he was rescued by the people living in the
squatters' area and sent to San Juan De Dios Hospital.
"After weeks of intensive care at the hospital, his attending
physician diagnosed [Borja] to be permanently disabled
due to the incident. [Borja] made demands against Smith
Bell and ITTC for the damages caused by the explosion.
However, both denied liabilities and attributed to each other
negligence."5
petitioner liable for damages and loss of income. The RTC disposed
as follows:
"WHEREFORE, premises considered, judgment is hereby
rendered ordering [Petitioner] Smith Bell Dodwell
[S]hipping Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages
for loss of earning capacity:
2. The amount of P100,000.00 for moral
damages; and
3. The amount of P50,000.00 for and as
reasonable attorney's fees.
"The cross-claim of [Petitioner] Smith Bell Dodwell
Shipping Agency Corporation against co-defendant
International Towage and Transport Corporation and the
latter's counterclaim against [Borja] and cross-claim with
compulsory counterclaim against Smith Bell are hereby
ordered dismissed."7
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner that it
be exonerated from liability for Respondent Borja's injuries. Contrary
to the claim of petitioner that no physical evidence was shown to
prove that the explosion had originated from its vessel, the CA held
that the fire had originated from M/T King Family. This conclusion
was amply supported by the testimonies of Borja and Eulogio
Laurente (the eyewitness of International Towage and Transport
Corporation or ITTC) as well as by the investigation conducted by
the Special Board of Marine Inquiry and affirmed by the secretary of
the Department of National Defense. On the other hand, the RTC,
which the CA sustained, had not given probative value to the
evidence of petitioner, whose sole eyewitness had not shown up for
cross-examination.
Hence, this Petition.8
The Issues
In its Memorandum,9 petitioner raises the following issues:
"1. Whether petitioner should be held liable for the injuries
of Respondent Catalino Borja.
"2. Whether Respondent ITTC should be held liable for the
injuries of Respondent Catalino Borja.
"3. Assuming without admitting that Respondent Catalino
Borja is entitled to damages, whether Respondent Borja is
entitled to the amount of damages awarded to him by the
trial court."10
Simply put, these issues can be summed up in these two questions:
(1) Who, if any, is liable for Borja's injuries? (2) What is the proper
amount of liability?
This Court's Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a
misapprehension of the facts. It claims that the documents adduced in
the RTC conclusively revealed that the explosion that caused the fire
on M/T King Family had originated from the barge ITTC-101, a
conclusion based on three grounds. First, the Survey Report (Exh.
"10") dated October 21, 1987 submitted by the Admiral Surveyors
and Adjusters, Inc., showed that no part of M/T King Family
sustained any sharp or violent damage that would otherwise be
observed if indeed an explosion had occurred on it. On the other
hand, the fact that the vessel sustained cracks on its shell plating was
noted in two Survey Reports from Greutzman Divers Underwater
Specialist, dated October 6, 1987 (Exh. "11"), and during the
underwater inspection on the sunken barge ITTC-101.
Second, external fire damage on the hull of M/T King Family
indicated that the fire had started from outside the vessel and from
ITTC-101. The port side of the vessel to which the ITTC barge was
tied was completely gutted by fire, while the starboard side to which
the barge CLC-1002 was tied sustained only slight fire damage.
Third, testimonial evidence proved that the explosion came from the
barge of the ITTC and not from its vessel. Security Guard Vivencio
Estrella testified that he had seen the sudden explosion of monomer
on the barge with fire that went up to about 60 meters. Third Mate
Choi Seong Hwan and Second Mate Nam Bang Choun of M/T King
Family narrated that while they were discharging the chemicals, they
saw and heard an explosion from the barge ITTC-101. Chief Security
Guard Reynaldo Patron, in turn, testified that he was 7 to 10 meters
away from the barge when he heard the explosion from the port side
of M/T King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire
and the explosion had originated from petitioner's vessel. Said the
trial court:
"The attempts of [Petitioner] Smith Bell to shift the blame
on x x x ITTC were all for naught. First, the testimony of
its alleged eyewitness was stricken off the record for his
failure to appear for cross-examination (p. 361, Record).
Second, the documents offered to prove that the fire
originated from barge ITTC-101 were all denied admission
by the [c]ourt for being, in effect, hearsay (pp. 335 and
362). x x x Thus, there is nothing in the record to support
[petitioner's] contention that the fire and explosion
originated from barge ITTC-101."11
We find no cogent reason to overturn these factual findings. Nothing
is more settled in jurisprudence than that this Court is bound by the
factual findings of the Court of Appeals when these are supported by
substantial evidence and are not under any of the exceptions in
Fuentes v. Court of Appeals;12 more so, when such findings affirm
those of the trial court.13 Verily, this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to another. It is
the failure to observe that degree of care, precaution and vigilance
that the circumstances justly demand, whereby that other person
suffers injury.14 Petitioner's vessel was carrying chemical cargo --
alkyl benzene and methyl methacrylate monomer. 15 While knowing
that their vessel was carrying dangerous inflammable chemicals, its
officers and crew failed to take all the necessary precautions to
prevent an accident. Petitioner was, therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by the
plaintiff, (b) fault or negligence of the defendant, and (c) the
connection of cause and effect between the fault or negligence of the
defendant and the damages inflicted on the plaintiff. 16 All these
elements were established in this case. Knowing fully well that it was
carrying dangerous chemicals, petitioner was negligent in not taking
all the necessary precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of the
chemicals from petitioner's vessel, Respondent Borja suffered the
following damage: and injuries: "(1) chemical burns of the face and
arms; (2) inhalation of fumes from burning chemicals; (3) exposure
to the elements [while] floating in sea water for about three (3) hours;
(4) homonymous hemianopsia or blurring of the right eye [which was
of] possible toxic origin; and (5) [c]erebral infract with neo-
vascularization, left occipital region with right sided headache and
the blurring of vision of right eye."17
Hence, the owner or the person in possession and control of a vessel
and the vessel are liable for all natural and proximate damage caused
to persons and property by reason of negligent management or
navigation.18
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of
damages awarded by the lower courts. It disputes the use of his gross
earning as basis for the computation of the award for loss of earning
capacity. Both courts, in computing the value of such loss, used the
remaining years of the victim as a government employee and the
amount he had been receiving per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that
petitioner had no cause to complain, because the miscomputation had
ironically been in its favor. The multiplier used in the computation
was erroneously based on the remaining years in government service,
instead of the life expectancy, of the victim. Borja's counsel also
points out that the award was based on the former's meager salary in
1987, or about 23 years ago when the foreign exchange was still P14
to $1. Hence, the questioned award is consistent with the primary
purpose of giving what is just, moral and legally due the victim as the
aggrieved party.
Both parties have a point. In determining the reasonableness of the
damages awarded under Article 1764 in conjunction with Article
2206 of the Civil Code, the factors to be considered are: (1) life
expectancy (considering the health of the victim and the mortality
table which is deemed conclusive) and loss of earning capacity; (b)
pecuniary loss, loss of support and service; and (c) moral and mental
sufferings.19 The loss of earning capacity is based mainly on the
number of years remaining in the person's expected life span. In turn,
this number is the basis of the damages that shall be computed and
the rate at which the loss sustained by the heirs shall be fixed. 20
The formula for the computation of loss of earning capacity is as
follows:21
Net earning capacity = Life expectancy x [Gross
Annual Income - Living Expenses (50% of gross annual
income)], where life expectancy = 2/3 (80 - the age
of the deceased).22
Petitioner is correct in arguing that it is net income (or gross income
less living expenses) which is to be used in the computation of the
award for loss of income. Villa Rey Transit v. Court of Appeals23
explained that "the amount recoverable is not the loss of the entire
earning, but rather the loss of that portion of the earnings which the
beneficiary would have received." Hence, in fixing the amount of the
said damages, the necessary expenses of the deceased should be
deducted from his earnings.
In other words, only net earnings, not gross earnings, are to be
considered; that is, the total of the earnings less expenses necessary in
the creation of such earnings or income, less living and other
incidental expenses. When there is no showing that the living
expenses constituted a smaller percentage of the gross income, we fix
the living expenses at half of the gross income. To hold that one
would have used only a small part of the income, with the larger part
going to the support of one's children, would be conjectural and
unreasonable.24
Counsel for Respondent Borja is also correct in saying that life
expectancy should not be based on the retirement age of government
employees, which is pegged at 65. In Negros Navigation Co, Inc. v.
CA,25 the Court resolved that in calculating the life expectancy of an
individual for the purpose of determining loss of earning capacity
under Article 2206(1) of the Civil Code, it is assumed that the
deceased would have earned income even after retirement from a
particular job.1âwphi1.nêt
Respondent Borja should not be situated differently just because he
was a government employee. Private employees, given the retirement
packages provided by their companies, usually retire earlier than
government employees; yet, the life expectancy of the former is not
pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the
incident and, hence, his life expectancy of 80 years should yield to
the reality that he was only 59 when he actually died.
We disagree. The Court uses the American Experience/Expectancy
Table of Mortality or the Actuarial or Combined Experience Table of
Mortality, which consistently pegs the life span of the average
Filipino at 80 years, from which it extrapolates the estimated income
to be earned by the deceased had he or she not been killed. 26

Respondent Borja's demise earlier than the estimated life span is of

no moment. For purposes of determining loss of earning capacity, life
expectancy remains at 80. Otherwise, the computation of loss of
earning capacity will never become final, being always subject to the
eventuality of the victim's death. The computation should not change
even if Borja lived beyond 80 years. Fair is fair.

Based on the foregoing discussion, the award for loss of earning

capacity should be computed as follows:

Loss of earning capacity = [2 (80-50)] x [(P2,752x12)-16,512]

3

= P330,240

Having been duly proven, the moral damages and attorney's fees
awarded are justified under the Civil Code's Article 2219, paragraph
2; and Article 2208, paragraph 11, respectively.

WHEREFORE, the Petition is PARTLY GRANTED. The assailed

Decision is AFFIRMED with the following MODIFICATIONS:
petitioner is ordered to pay the heirs of the victim damages in the
amount of P320,240 as loss of earning capacity, moral damages in the
amount of P100,000, plus another P50,000 as attorney's fees. Costs
against petitioner.

SO ORDERED.
G.R. No. 156034 October 1, 2003 is not liable because it exercised due diligence in the selection of
Capt. Jusep who is a duly licensed and competent Master Mariner. 17
DELSAN TRANSPORT LINES, INC., petitioner,
vs. The issues to be resolved in this petition are as follows – (1) Whether
C & A construction, inc., respondent. or not Capt. Jusep was negligent; (2) If yes, whether or not petitioner
is solidarily liable under Article 2180 of the Civil Code for the quasi-
DECISION delict committed by Capt. Jusep?

YNARES-SANTIAGO, J.: Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or negligence, is
Assailed in this petition for review under Rule 45 of the Revised obliged to pay for the damage done. Such fault or negligence, if there
Rules of Court are the June 14, 2002 decision1 of the Court of is no pre-existing contractual relation between the parties, is called a
Appeals in CA-G.R. CV No. 59034, which reversed the decision2 of quasi-delict. The test for determining the existence of negligence in a
the Regional Trial Court of Manila, Branch 46, in Civil Case No. 95- particular case may be stated as follows: Did the defendant in doing
75565, and its November 7, 2002 resolution3 denying petitioner’s the alleged negligent act use the reasonable care and caution which
motion for reconsideration. an ordinary prudent person would have used in the same situation? If
not, then he is guilty of negligence.18
The undisputed facts reveal that respondent C & A Construction, Inc.
was engaged by the National Housing Authority (NHA) to construct a In the case at bar, the Court of Appeals was correct in holding that
deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila. 4 Capt. Jusep was negligent in deciding to transfer the vessel only at
The project was completed in 1994 but it was not formally turned 8:35 in the morning of October 21, 1994. As early as 12:00 midnight
over to NHA. of October 20, 1994, he received a report from his radio head
operator in Japan19 that a typhoon was going to hit Manila20 after 8
On October 9, 1994, M/V Delsan Express, a ship owned and operated
hours.21 This, notwithstanding, he did nothing, until 8:35 in the
by petitioner Delsan Transport Lines, Inc., anchored at the Navotas
morning of October 21, 1994, when he decided to seek shelter at the
Fish Port for the purpose of installing a cargo pump and clearing the
North Harbor, which unfortunately was already congested. The
cargo oil tank. At around 12:00 midnight of October 20, 1994,
finding of negligence cannot be rebutted upon proof that the ship
Captain Demetrio T. Jusep of M/V Delsan Express received a report
could not have sought refuge at the North Harbor even if the transfer
from his radio head operator in Japan5 that a typhoon was going to hit
was done earlier. It is not the speculative success or failure of a
Manila6 in about eight (8) hours.7 At approximately 8:35 in the
decision that determines the existence of negligence in the present
morning of October 21, 1994, Capt. Jusep tried to seek shelter at the
case, but the failure to take immediate and appropriate action under
North Harbor but could not enter the area because it was already
the circumstances. Capt. Jusep, despite knowledge that the typhoon
congested.8 At 10:00 a.m., Capt. Jusep decided to drop anchor at the
was to hit Manila in 8 hours, complacently waited for the lapse of
vicinity of Vitas mouth, 4 miles away from a Napocor power barge.
more than 8 hours thinking that the typhoon might change direction. 22
At that time, the waves were already reaching 8 to 10 feet high. Capt.
He cannot claim that he waited for the sun to rise instead of moving
Jusep ordered his crew to go full ahead to counter the wind which
the vessel at midnight immediately after receiving the report because
was dragging the ship towards the Napocor power barge. To avoid
of the difficulty of traveling at night. The hour of 8:35 a.m. is way
collision, Capt. Jusep ordered a full stop of the vessel. 9 He succeeded
past sunrise. Furthermore, he did not transfer as soon as the sun rose
in avoiding the power barge, but when the engine was re-started and
because, according to him, it was not very cloudy23 and there was no
the ship was maneuvered full astern, it hit the deflector wall
weather disturbance yet.24
constructed by respondent.10 The damage caused by the incident
amounted to P456,198.24.11 When he ignored the weather report notwithstanding reasonable
foresight of harm, Capt. Jusep showed an inexcusable lack of care
Respondent demanded payment of the damage from petitioner but the
and caution which an ordinary prudent person would have observed
latter refused to pay. Consequently, respondent filed a complaint for
in the same situation.25 Had he moved the vessel earlier, he could
damages with the Regional Trial Court of Manila, Branch 46, which
have had greater chances of finding a space at the North Harbor
was docketed as Civil Case No. 95-75565. In its answer, petitioner
considering that the Navotas Port where they docked was very near
claimed that the damage was caused by a fortuitous event. 12
North Harbor.26 Even if the latter was already congested, he would
On February 13, 1998, the complaint filed by respondent was still have time to seek refuge in other ports.
dismissed. The trial court ruled that petitioner was not guilty of
The trial court erred in applying the emergency rule. Under this rule,
negligence because it had taken all the necessary precautions to avoid
one who suddenly finds himself in a place of danger, and is required
the accident. Applying the "emergency rule", it absolved petitioner of
to act without time to consider the best means that may be adopted to
liability because the latter had no opportunity to adequately weigh the
avoid the impending danger, is not guilty of negligence, if he fails to
best solution to a threatening situation. It further held that even if the
adopt what subsequently and upon reflection may appear to have
maneuver chosen by petitioner was a wrong move, it cannot be held
been a better method, unless the danger in which he finds himself is
liable as the cause of the damage sustained by respondent was
brought about by his own negligence.27 Clearly, the emergency rule is
typhoon "Katring", which is an act of God.13
not applicable to the instant case because the danger where Capt.
On appeal to the Court of Appeals, the decision of the trial court was Jusep found himself was caused by his own negligence.
reversed and set aside.14 It found Capt. Jusep guilty of negligence in
Anent the second issue, we find petitioner vicariously liable for the
deciding to transfer the vessel to the North Harbor only at 8:35 a.m.
negligent act of Capt. Jusep.1awphi1.nét Under Article 2180 of the
of October 21, 1994 and thus held petitioner liable for damages.
Civil Code an employer may be held solidarily liable for the
Hence, petitioner filed the instant petition contending that Capt. Jusep negligent act of his employee. Thus –
was not negligent in waiting until 8:35 in the morning of October 21,
Art. 2180. The obligation imposed in Article 2176 is demandable not
1994 before transferring the vessel to the North Harbor inasmuch as
only for one’s own acts or omissions, but also for those of persons for
it was not shown that had the transfer been made earlier, the vessel
whom one is responsible.
could have sought shelter.15 It further claimed that it cannot be held
vicariously liable under Article 2180 of the Civil Code because xxxxxxxxx
respondent failed to allege in the complaint that petitioner was
negligent in the selection and supervision of its employees. 16 Employers shall be liable for the damages caused by their employees
Granting that Capt. Jusep was indeed guilty of negligence, petitioner and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
xxxxxxxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence
of a good father of a family to prevent damage.
Whenever an employee’s negligence causes damage or injury to
another, there instantly arises a presumption juris tantum that the
employer failed to exercise diligentissimi patris families in the
selection (culpa in eligiendo) or supervision (culpa in vigilando) of
its employees. To avoid liability for a quasi-delict committed by his
employee, an employer must overcome the presumption by
presenting convincing proof that he exercised the care and diligence
of a good father of a family in the selection and supervision of his
employee. 28
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED.1awphi1.nét The June 14, 2002 decision of the Court of
Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan
Transport Lines, Inc., to pay respondent C & A Construction, Inc.,
damages in the amount of P456,198.27, plus P30,000.00 as attorney’s
fees, is AFFIRMED with the MODIFICATION that the award of
P456,198.27 shall earn interest at the rate of 6% per annum from
October 3, 1995, until finality of this decision, and 12% per annum
thereafter on the principal and interest (or any part thereof) until full
payment.
SO ORDERED.

There is no question that petitioner, who is the owner/operator of

M/V Delsan Express, is also the employer of Capt. Jusep who at the
time of the incident acted within the scope of his duty. The defense
raised by petitioner was that it exercised due diligence in the
selection of Capt. Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that the required
diligence of a good father of a family pertains not only to the
selection, but also to the supervision of employees. It is not enough
that the employees chosen be competent and qualified, inasmuch as
the employer is still required to exercise due diligence in supervising
its employees.

In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in

supervision requires the formulation of rules and regulations for the
guidance of employees and the issuance of proper instructions as well
as actual implementation and monitoring of consistent compliance
with the rules. Corollarily, in Ramos v. Court of Appeals,30 the Court
stressed that once negligence on the part of the employees is shown,
the burden of proving that he observed the diligence in the selection
and supervision of its employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it

formulated rules/guidelines for the proper performance of functions
of its employees and that it strictly implemented and monitored
compliance therewith. Failing to discharge the burden, petitioner
should therefore be held liable for the negligent act of Capt. Jusep.

So also, petitioner cannot disclaim liability on the basis of

respondent’s failure to allege in its complaint that the former did not
exercise due diligence in the selection and supervision of its
employees. In Viron Transportation Co., Inc. v. Delos Santos,31 it was
held that it is not necessary to state that petitioner was negligent in
the supervision or selection of its employees, inasmuch as its
negligence is presumed by operation of law. Allegations of
negligence against the employee and that of an employer-employee
relation in the complaint are enough to make out a case of quasi-
delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the
trial court, we find no reason to alter the same. The interest imposed
should, however, be modified. In Eastern Shipping Lines, Inc. v.
Court of Appeals,33 it was held that the rate of interest on obligations
not constituting a loan or forbearance of money is six percent (6%)
per annum. If the purchase price can be established with certainty at
the time of the filing of the complaint, the six percent (6%) interest
should be computed from the date the complaint was filed until
finality of the decision. After the judgment becomes final and
executory until the obligation is satisfied, the amount due shall earn
interest at 12% per year, the interim period being deemed equivalent
to a forbearance of credit.34

Accordingly, the amount of P456,198.27 due the respondent shall

earn 6% interest per annum from October 3, 1995 until the finality of
this decision. If the adjudged principal and the interest (or any part
thereof) remain unpaid thereafter, the interest rate shall be twelve
percent (12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.
G.R. No. 159270. August 22, 2005
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION,
Petitioners,
vs.
HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA
LATAGAN, RICARDO GENERALAO and PAMPANGA
SUGAR DEVELOPMENT COMPANY, INC., CORPORATION,
Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. CV No. 47699 affirming, with
modification, the decision of the Regional Trial Court (RTC) of
Manila in Civil Case No. 93-64803.
The Antecedents
Pampanga Sugar Development Company, Inc. (PASUDECO)
transports sugarcane from Mabalacat and Magalang, Pampanga.
When the Mount Pinatubo eruption of 1991 heavily damaged the
national bridges along Abacan-Angeles and Sapang Maragul via
Magalang, Pampanga, it requested permission from the Toll
Regulatory Board (TRB) for its trucks to enter and pass through the
North Luzon Expressway (NLEX) via Dau-Sta. Ines from Mabalacat,
and via Angeles from Magalang, and exit at San Fernando going to
its milling factory.2 The TRB furnished the Philippine National
Construction Corporation (PNCC) (the franchisee that operates and
maintains the toll facilities in the North and South Luzon Toll
Expressways) with a copy of the said request for it to comment
thereon.3
On November 5, 1991, TRB and PASUDECO entered into a
Memorandum of Agreement4 (MOA), where the latter was allowed to
enter and pass through the NLEX on the following terms and
conditions:
1. PASUDECO trucks should move in convoy;
2. Said trucks will stay on the right lane;
3. A vehicle with blinking lights should be assigned at the rear end of
the convoy with a sign which should read as follows: Caution:
CONVOY AHEAD!!!;
4. Tollway safety measures should be properly observed;
5. Accidents or damages to the toll facilities arising out of any
activity related to this approval shall be the responsibility of
PASUDECO;
6. PASUDECO shall be responsible in towing their stalled trucks
immediately to avoid any inconvenience to the other motorists;
7. This request will be in force only while the national bridges along
Abacan-Angeles and Sapang Maragul via Magalang remain
impassable.
PASUDECO furnished the PNCC with a copy of the MOA.5 In a
Letter6 dated October 22, 1992, the PNCC informed PASUDECO that
it interposed no objection to the MOA.
At around 2:30 a.m. on January 23, 1993, Alex Sendin, the PNCC
security supervisor, and his co-employees Eduardo Ducusin and
Vicente Pascual were patrolling Km. 72 going north of the NLEX.
They saw a pile of sugarcane in the middle portion of the north and
southbound lanes of the road.7 They placed lit cans with diesel oil in
the north and southbound lanes, including lane dividers with
reflectorized markings, to warn motorists of the obstruction. Sendin,
Ducusin and Pascual proceeded to the PASUDECO office, believing
that the pile of sugarcane belonged to it since it was the only milling
company in the area. They requested for a payloader or grader to
clear the area. However, Engineer Oscar Mallari, PASUDECO’s
equipment supervisor and transportation superintendent, told them
that no equipment operator was available as it was still very early. 8
Nonetheless, Mallari told them that he would send someone to clear
the affected area. Thereafter, Sendin and company went back to Km.
72 and manned the traffic. At around 4:00 a.m., five (5) PASUDECO
men arrived, and started clearing the highway of the sugarcane. They
stacked the sugarcane at the side of the road. The men left the area at
around 5:40 a.m., leaving a few flattened sugarcanes scattered on the
road. As the bulk of the sugarcanes had been piled and transferred
along the roadside, Sendin thought there was no longer a need to man
the traffic. As dawn was already approaching, Sendin and company
removed the lighted cans and lane dividers.9 Sendin went to his office
in Sta. Rita, Guiguinto, Bulacan, and made the necessary report. 10
At about 6:30 a.m., Rodrigo S. Arnaiz, a certified mechanic and
marketing manager of JETTY Marketing, Inc.,11 was driving his two-
door Toyota Corolla with plate number FAG 961 along the NLEX at
about 65 kilometers per hour.12 He was with his sister Regina
Latagan, and his friend Ricardo Generalao; they were on their way to
Baguio to attend their grandmother’s first death anniversary. 13 As the
vehicle ran over the scattered sugarcane, it flew out of control and
turned turtle several times. The accident threw the car about fifteen
paces away from the scattered sugarcane.
Police Investigator Demetrio Arcilla investigated the matter and saw
black and white sugarcanes on the road, on both lanes, which
appeared to be flattened.14
On March 4, 1993, Arnaiz, Latagan and Generalao filed a complaint 15
for damages against PASUDECO and PNCC in the RTC of Manila,
Branch 16. The case was docketed as Civil Case No. 93-64803. They
alleged, inter alia, that through its negligence, PNCC failed to keep
and maintain the NLEX safe for motorists when it allowed
PASUDECO trucks with uncovered and unsecured sugarcane to pass
through it; that PASUDECO negligently spilled sugarcanes on the
NLEX, and PNCC failed to put up emergency devices to sufficiently
warn approaching motorists of the existence of such spillage; and that
the combined gross negligence of PASUDECO and PNCC was the
direct and proximate cause of the injuries sustained by Latagan and
the damage to Arnaiz’s car. They prayed, thus:
WHEREFORE, it is respectfully prayed that, after due hearing,
judgment be rendered for the plaintiffs, ordering the defendants
jointly and severally:
(a) To pay unto plaintiff Rodrigo Arnaiz the sum of P100,000.00
representing the value of his car which was totally wrecked;
(b) to pay unto plaintiff Regina Latagan the sum of P100,000.00 by
way of reimbursement for medical expenses, the sum of P50,000.00
by way of moral damages, and the sum of P30,000.00 by way of
exemplary damages;
(c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo Generalao the
sum of P5,000.00 by way of reimbursement for medical expenses;
and
(d) To pay unto the plaintiffs the sum of P30,000.00 by way of
attorney’s fees; plus the costs of suit.
Plaintiffs pray for other reliefs which the Honorable Court may find
due them in the premises.16
In its Answer,17 PNCC admitted that it was under contract to manage
the North Luzon Expressway, to keep it safe for motorists. It averred
that the mishap was due to the "unreasonable speed" at which
Arnaiz’s car was running, causing it to turn turtle when it passed over
some pieces of flattened sugarcane. It claimed that the proximate
cause of the mishap was PASUDECO’s gross negligence in spilling
the sugarcane, and its failure to clear and mop up the area completely.
It also alleged that Arnaiz was guilty of contributory negligence in
driving his car at such speed.
The PNCC interposed a compulsory counterclaim18 against the
plaintiffs and cross-claim19 against its co-defendant PASUDECO.
PASUDECO adduced evidence that aside from it, there were other
sugarcane mills in the area, like the ARCAM Sugar Central (formerly
known as Pampanga Sugar Mills) and the Central Azucarrera de
Tarlac;20 it was only through the expressway that a vehicle could
access these three (3) sugar centrals;21 and PASUDECO was
obligated to clear spillages whether the planters’ truck which caused
the spillage was bound for PASUDECO, ARCAM or Central
Azucarera.22
On rebuttal, PNCC adduced evidence that only planters’ trucks with
"PSD" markings were allowed to use the tollway;23 that all such
trucks would surely enter the PASUDECO compound. Thus, the
truck which spilled sugarcane in January 1993 in Km. 72 was on its
way to the PASUDECO compound.24
On November 11, 1994, the RTC rendered its decision25 in favor of
Latagan, dismissing that of Arnaiz and Generalao for insufficiency of
evidence. The case as against the PNCC was, likewise, dismissed.
The decretal portion of the decision reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered:
I. ORDERING defendant PASUDECO:
1. To pay plaintiff Regina Latagan:
a. P25,000 = for actual damages
b. P15,000 = for moral damages
c. P10,000 = for attorney’s fees
P50,000
2. To pay costs of suit.
II. The case is DISMISSED as to defendant PNCC. No
pronouncement as to costs. Its counterclaim is, likewise,
DISMISSED.
III. The claims for damages of plaintiffs Rodrigo Arnaiz and Ricardo
Generalao are hereby DISMISSED for insufficiency of evidence.
SO ORDERED.26
Both the plaintiffs Arnaiz, Latagan and Generalao and defendant
PASUDECO appealed the decision to the CA. Since the plaintiffs
failed to file their brief, the CA dismissed their appeal. 27
Resolving PASUDECO’s appeal, the CA rendered judgment on April
29, 2003, affirming the RTC decision with modification. The
appellate court ruled that Arnaiz was negligent in driving his car, but
that such negligence was merely contributory to the cause of the
mishap, i.e., PASUDECO’s failure to properly supervise its men in
clearing the affected area. Its supervisor, Mallari, admitted that he
was at his house while their men were clearing Km. 72. Thus, the
appellate court held both PASUDECO and PNCC, jointly and
severally, liable to Latagan. The decretal portion of the decision
reads:
WHEREFORE, premises considered, the assailed DECISION is
hereby MODIFIED and judgment is hereby rendered declaring
PASUDECO and PNCC, jointly and solidarily, liable:
1. To pay plaintiff Regina Latagan:
a. P25,000 = for actual damages
b. P15,000 = for moral damages
c. P10,000 = for attorney’s fees
2. To pay costs of suit.
SO ORDERED. 28
The PNCC, now the petitioner, filed a petition for review on
certiorari under Rule 45 of the Revised Rules of Court, alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN
MODIFYING THE DECISION OF THE TRIAL COURT AND
MAKING PETITIONER PNCC, JOINTLY AND [SOLIDARILY],
LIABLE WITH PRIVATE RESPONDENT PASUDECO. 29
The petitioner asserts that the trial court was correct when it held that
PASUDECO should be held liable for the mishap, since it had
assumed such responsibility based on the MOA between it and the
TRB. The petitioner relies on the trial court’s finding that only
PASUDECO was given a permit to pass through the route.
The petitioner insists that the respondents failed to prove that it was
negligent in the operation and maintenance of the NLEX. It maintains
that it had done its part in clearing the expressway of sugarcane piles,
and that there were no more piles of sugarcane along the road when
its men left Km. 72; only a few scattered sugarcanes flattened by the
passing motorists were left. Any liability arising from any mishap
related to the spilled sugarcanes should be borne by PASUDECO, in
accordance with the MOA which provides that "accidents or
damages to the toll facilities arising out of any activity related to this
approval shall be the responsibility of PASUDECO."
The petitioner also argues that the respondents should bear the
consequences of their own fault or negligence, and that the proximate
and immediate cause of the mishap in question was respondent
Arnaiz’s reckless imprudence or gross negligence.
The Court notes that the issues raised in the petition are factual in
nature. Under Rule 45 of the Rules of Court, only questions of law
may be raised in this Court, and while there are exceptions to the
rule, no such exception is present in this case. On this ground alone,
the petition is destined to fail. The Court, however, has reviewed the
records of the case, and finds that the petition is bereft of merit.
The petitioner is the grantee of a franchise, giving it the right,
privilege and authority to construct, operate and maintain toll
facilities covering the expressways, collectively known as the
NLEX.30 Concomitant thereto is its right to collect toll fees for the
use of the said expressways and its obligation to keep it safe for
motorists.
There are three elements of a quasi-delict: (a) damages suffered by
the plaintiff; (b) fault or negligence of the defendant, or some other
person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant and
the damages incurred by the plaintiff.31 Article 2176 of the New Civil
Code provides:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
Negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something which a
prudent and reasonable man would do.32 It also refers to the conduct
which creates undue risk of harm to another, the failure to observe
that degree of care, precaution and vigilance that the circumstance
justly demand, whereby that other person suffers injury. 33 The Court
declared the test by which to determine the existence of negligence in
Picart v. Smith,34 viz:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence
in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another
is this: could a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to take
precautions to guard against its mischievous results, and the failure to
do so constitutes negligence. Reasonable foresight of harm, followed
by the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist. 35
In the case at bar, it is clear that the petitioner failed to exercise the
requisite diligence in maintaining the NLEX safe for motorists. The
lighted cans and lane dividers on the highway were removed even as
flattened sugarcanes lay scattered on the ground. 36 The highway was
still wet from the juice and sap of the flattened sugarcanes. 37 The
petitioner should have foreseen that the wet condition of the highway
would endanger motorists passing by at night or in the wee hours of
the morning.
The petitioner cannot escape liability under the MOA between
PASUDECO and TRB, since respondent Latagan was not a party
thereto. We agree with the following ruling of the CA:
Both defendants, appellant PASUDECO and appellee PNCC, should
be held liable. PNCC, in charge of the maintenance of the
expressway, has been negligent in the performance of its duties. The
obligation of PNCC should not be relegated to, by virtue of a private
agreement, to other parties.
PNCC declared the area free from obstruction since there were no
piles of sugarcane, but evidence shows there were still pieces of
sugarcane stalks left flattened by motorists. There must be an
observance of that degree of care, precaution, and vigilance which the
situation demands. There should have been sufficient warning
devices considering that there were scattered sugarcane stalks still
left along the tollway.
The records show, and as admitted by the parties, that Arnaiz’s car
ran over scattered sugarcanes spilled from a hauler truck. 38
Moreover, the MOA refers to accidents or damages to the toll
facilities. It does not cover damages to property or injuries caused to
motorists on the NLEX who are not privies to the MOA.
PASUDECO’s negligence in transporting sugarcanes without proper
harness/straps, and that of PNCC in removing the emergency warning
devices, were two successive negligent acts which were the direct
and proximate cause of Latagan’s injuries. As such, PASUDECO and
PNCC are jointly and severally liable. As the Court held in the
vintage case of Sabido v. Custodio:39
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons,
although acting independently of each other, are, in combination, the
direct and proximate cause of a single injury to a third person and it is
impossible to determine in what proportion each contributed to the
injury, either is responsible for the whole injury, even though his act
alone might not have caused the entire injury, or the same damage
might have resulted from the acts of the other tort-feasor. ...
In Far Eastern Shipping Company v. Court of Appeals,40 the Court
declared that the liability of joint tortfeasors is joint and solidary, to
wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is sufficient
that his negligence, concurring with one or more efficient causes
other than plaintiff's, is the proximate cause of the injury.
Accordingly, where several causes combine to produce injuries, a
person is not relieved from liability because he is responsible for only
one of them, it being sufficient that the negligence of the person
charged with injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that such cause is
not attributable to the person injured. It is no defense to one of the
concurrent tortfeasors that the injury would not have resulted from
his negligence alone, without the negligence or wrongful acts of the
other concurrent tortfeasors. Where several causes producing an
injury are concurrent and each is an efficient cause without which the
injury would not have happened, the injury may be attributed to all or
any of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case, it
may appear that one of them was more culpable, and that the duty
owed by them to the injured person was not the same. No actor's
negligence ceases to be a proximate cause merely because it does not
exceed the negligence of other actors. Each wrongdoer is responsible
for the entire result and is liable as though his acts were the sole
cause of the injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination with the
direct and proximate cause of a single injury to a third person, it is
impossible to determine in what proportion each contributed to the
injury and either of them is responsible for the whole injury. Where
their concurring negligence resulted in injury or damage to a third
party, they become joint tortfeasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code.
Thus, with PASUDECO’s and the petitioner’s successive negligent
acts, they are joint tortfeasors who are solidarily liable for the
resulting damage under Article 2194 of the New Civil Code. 41
Anent respondent Arnaiz’s negligence in driving his car, both the trial
court and the CA agreed that it was only contributory, and considered
the same in mitigating the award of damages in his favor as provided
under Article 217942 of the New Civil Code. Contributory negligence
is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to
which he is required to conform for his own protection.43 Even the
petitioner itself described Arnaiz’s negligence as contributory. In its
Answer to the complaint filed with the trial court, the petitioner
asserted that "the direct and proximate cause of the accident was the
gross negligence of PASUDECO personnel which resulted in the
spillage of sugarcane and the apparent failure of the PASUDECO
workers to clear and mop up the area completely, coupled with the
contributory negligence of Arnaiz in driving his car at an
unreasonable speed."44 However, the petitioner changed its theory in
the present recourse, and now claims that the proximate and
immediate cause of the mishap in question was the reckless
imprudence or gross negligence of respondent Arnaiz. 45 Such a
change of theory cannot be allowed. When a party adopts a certain
theory in the trial court, he will not be permitted to change his theory
on appeal, for to permit him to do so would not only be unfair to the
other party but it would also be offensive to the basic rules of fair
play, justice and due process.46
IN LIGHT OF ALL THE FOREGOING, the present petition is
hereby DENIED for lack of merit. The Decision of the Court of
Appeals in CA-G.R. CV No. 47699, dated April 29, 2003, is
AFFIRMED. Costs against the petitioner.
SO ORDERED.
G.R. No. 157658 October 15, 2007
PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J.
BORJA, Petitioners,
vs.
COURT OF APPEALS (Second Division), CORAZON C.
AMORES, MA. EMILIE A. MOJICA, CECILE C. SISON,
DINO C. AMORES, LARISA C. AMORES, ARMAND JINO C.
AMORES and JOHN C. AMORES, Respondents.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure, as amended, seeking to annul
and set aside the Decision1 of the Court of Appeals (CA) in CA-G.R.
CV No. 54906 which reversed the Decision2 of the Regional Trial
Court (RTC) of Manila, Branch 28, in Civil Case No. 92-61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores (Amores) was
traversing the railroad tracks in Kahilum II Street, Pandacan, Manila.
Before crossing the railroad track, he stopped for a while then
proceeded accordingly.3 Unfortunately, just as Amores was at the
intersection, a Philippine National Railways’ (PNR) train with
locomotive number T-517 turned up and collided with the car. 4
At the time of the mishap, there was neither a signal nor a crossing
bar at the intersection to warn motorists of an approaching train.
Aside from the railroad track, the only visible warning sign at that
time was the defective standard signboard "STOP, LOOK and
LISTEN" wherein the sign "Listen" was lacking while that of "Look"
was bent.5 No whistle blow from the train was likewise heard before
it finally bumped the car of Amores.6 After impact, the car was
dragged about ten (10) meters beyond the center of the crossing. 7
Amores died as a consequence thereof.
On July 22, 1992, the heirs of Amores, consisting of his surviving
wife and six children, herein respondents, filed a Complaint for
Damages8 against petitioners PNR and Virgilio J. Borja (Borja),
PNR’s locomotive driver at the time of the incident, before the RTC
of Manila. The case was raffled to Branch 28 and was docketed as
Civil Case No. 92-61987. In their complaint, respondents averred that
the train’s speedometer was defective, and that the petitioners’
negligence was the proximate cause of the mishap for their failure to
take precautions to prevent injury to persons and property despite the
dense population in the vicinity. They then prayed for actual and
moral damages, as well as attorney’s fees. 9
In their Answer,10 the petitioners denied the allegations, stating that
the train was railroad-worthy and without any defect. According to
them, the proximate cause of the death of Amores was his own
carelessness and negligence, and Amores wantonly disregarded
traffic rules and regulations in crossing the railroad tracks and trying
to beat the approaching train. They admitted that there was no
crossing bar at the site of the accident because it was merely a
barangay road.11 PNR stressed that it exercised the diligence of a
good father of a family in the selection and supervision of the
locomotive driver and train engineer, Borja, and that the latter
likewise used extraordinary diligence and caution to avoid the
accident. Petitioners further asserted that respondents had the last
clear chance to avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC rendered
judgment in favor of the petitioners, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered dismissing the
complaint of the plaintiffs and the defendants’ counterclaim.
The costs shall be halved and paid equally by the parties.
The counsel for the defendants is hereby ordered to inform this court
who is the legal representative of the deceased defendant, Virgilio
Borja, within ten (10) days from receipt of a copy of this decision.
SO ORDERED.12
The RTC rationalized that the proximate cause of the collision was
Amores’ fatal misjudgment and the reckless course of action he took
in crossing the railroad track even after seeing or hearing the
oncoming train.
On appeal, the CA reversed the RTC decision, as follows:
WHEREFORE, the assailed Decision of the Regional Trial Court of
Manila, Branch 28 is hereby REVERSED. The defendants PNR and
the estate of Virgilio J. Borja are jointly and severally liable to pay
plaintiffs the following:
1) The amount of P122,300.00 for the cost of damage to the car; and,
2) The amount of P50,000 as moral damages.
For lack of official receipts for funeral expenses and specimen of the
last pay slip of the deceased, the claim for reimbursement of funeral
expenses and claim for payment of support is hereby DENIED for
lack of basis. Costs against Defendants.
SO ORDERED.13
In reversing the trial court’s decision, the appellate court found the
petitioners negligent. The court based the petitioners’ negligence on
the failure of PNR to install a semaphore or at the very least, to post a
flagman, considering that the crossing is located in a thickly
populated area. Moreover, the signboard "Stop, Look and Listen" was
found insufficient because of its defective condition as described
above. Lastly, no negligence could be attributed to Amores as he
exercised reasonable diligence in crossing the railroad track.
Aggrieved by this reversal, the petitioners filed the present petition
for review on certiorari, raising the following grounds:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN RENDERING ITS DECISION REVERSING THE
DECISION OF THE REGIONAL TRIAL COURT OF MANILA
BRANCH 28, IN NOT TAKING INTO CONSIDERATION THE
PROVISION OF SECTION 42, R.A. 4136 OF THE LAND
TRANSPORTATION AND TRAFFIC CODE.
II
THE DECISION OF THE COURT OF APPEALS IS CONTRARY
TO THE EVIDENCE ON RECORD ADDUCED IN THE TRIAL
ON THE MERIT IN CIVIL CASE NO. 92-61987.14
The petitioners insist that Amores must have heard the train’s whistle
and heeded the warning but, noting that the train was still a distance
away and moving slowly, he must have calculated that he could beat
it to the other side of the track before the train would arrive at the
intersection. The petitioners likewise add that the train was railroad-
worthy and that its defective speedometer did not affect the train’s
operation. Lastly, they insist that evidence showed sufficient warning
signs strategically installed at the crossing to alert both motorists and
pedestrians.
Respondents, on the other hand, argue that the cause of the accident
was petitioners’ carelessness, imprudence and laxity in failing to
provide a crossing bar and keeper at the Kahilum II railway
intersection. Considering that Kahilum II Street is in the middle of a
thickly populated squatters’ area, and many pedestrians cross the
railroad track, notwithstanding the fact that it is a public street and a
main thoroughfare utilized in going to Herran Street, the presence of
adequate warning signals would have prevented the untimely death of
Amores. Another crucial point raised by the respondents is the
manner in which Borja applied the brakes of the train only when the
locomotive was already very near Amores’ car, as admitted by
witness Querimit. Finally, respondents claim that Borja’s failure to
blow the locomotive’s horn, pursuant to the usual practice of doing
the same 100 meters before reaching the Kahilum II crossing point is
an earmark of recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is whether the
appellate court was correct in ascribing negligence on the part of the
petitioners. It was ascertained beyond quandary that the proximate
cause of the collision is the negligence and imprudence of the
petitioner PNR and its locomotive driver, Borja, in operating the
passenger train.
As the action is predicated on negligence, the relevant provision is
Article 2176 of the New Civil Code, which states that:
Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there was no pre-existing contractual relation
between the parties, is called quasi-delict and is governed by the
provisions of this chapter.
We have thoroughly reviewed the records of the case and we find no
cogent reason to reverse the appellate court’s decision. Negligence
has been defined as "the failure to observe for the protection of the
interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other
person suffers injury."15 Using the aforementioned philosophy, it may
be reliably concluded that there is no hard and fast rule whereby such
degree of care and vigilance is calibrated; it is dependent upon the
circumstances in which a person finds himself. All that the law
requires is that it is perpetually compelling upon a person to use that
care and diligence expected of sensible men under comparable
circumstances.16
We hold that the petitioners were negligent when the collision took
place. The transcript of stenographic notes reveals that the train was
running at a fast speed because notwithstanding the application of the
ordinary and emergency brakes, the train still dragged the car some
distance away from the point of impact. Evidence likewise unveils
the inadequate precautions taken by petitioner PNR to forewarn the
public of the impending danger. Aside from not having any crossing
bar, no flagman or guard to man the intersection at all times was
posted on the day of the incident. A reliable signaling device in good
condition, not just a dilapidated "Stop, Look and Listen" signage
because of many years of neglect, is needed to give notice to the
public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to
do so would be an indication of negligence.
As held in the case of Philippine National Railway v. Brunty, 17 it may
broadly be stated that railroad companies owe to the public a duty of
exercising a reasonable degree of care to avoid injury to persons and
property at railroad crossings, which duties pertain both to the
operation of trains and to the maintenance of the crossings.
Moreover, every corporation constructing or operating a railway shall
make and construct at all points where such railway crosses any
public road, good, sufficient, and safe crossings, and erect at such
points, at sufficient elevation from such road as to admit a free
passage of vehicles of every kind, a sign with large and distinct letters
placed thereon, to give notice of the proximity of the railway, and
warn persons of the necessity of looking out for trains.18 The failure
of the PNR to put a cross bar, or signal light, flagman or switchman,
or semaphore is evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance requiring it, because
public safety demands that said device or equipment be installed.
The petitioners insist that a train has a right-of-way in a railroad
crossing under the existing laws. They derive their theory from
Section 42 (d), Article III of R.A. 4136, otherwise known as the Land
Transportation and Traffic Code, which states that:
The driver of a vehicle upon a highway shall bring to a full stop such
vehicle before traversing any "through highway" or railroad crossing:
Provided, That when it is apparent that no hazard exists, the vehicle
may be slowed down to five miles per hour instead of bringing it to a
full stop.
They claim that motorists are enjoined by law to stop, look and listen
before crossing railroad tracks and that a heavier responsibility rests
upon the motorists in avoiding accidents at level crossings.
It is true that one driving an automobile must use his faculties of
seeing and hearing when nearing a railroad crossing.1âwphi1
However, the obligation to bring to a full stop vehicles moving in
public highways before traversing any "through street" only accrues
from the time the said "through street" or crossing is so designated
and sign-posted. From the records of the case, it can be inferred that
Amores exercised all the necessary precautions required of him as to
avoid injury to himself and to others.1âwphi1 The witnesses’
testimonies showed that Amores slackened his speed, made a full
stop, and then proceeded to cross the tracks when he saw that there
was no impending danger to his life. Under these circumstances, we
are convinced that Amores did everything, with absolute care and
caution, to avoid the collision.
It is settled that every person or motorist crossing a railroad track
should use ordinary prudence and alertness to determine the
proximity of a train before attempting to cross. We are persuaded that
the circumstances were beyond the control of Amores for no person
would sacrifice his precious life if he had the slightest opportunity to
evade the catastrophe. Besides, the authority in this jurisdiction is that
the failure of a railroad company to install a semaphore or at the very
least, to post a flagman or watchman to warn the public of the passing
train amounts to negligence.191âwphi1
In view of the foregoing, We will now discuss the liability of
petitioner PNR. Article 218020 of the New Civil Code discusses the
liability of the employer once negligence or fault on the part of the
employee has been established. The employer is actually liable on the
assumption of juris tantum that the employer failed to exercise
diligentissimi patris families in
the selection and supervision of its employees. The liability is
primary and can only be negated by showing due diligence in the
selection and supervision of the employee, a factual matter that has
not been demonstrated.21 Even the existence of hiring procedures and
supervisory employees cannot be incidentally invoked to overturn the
presumption of negligence on the part of the employer. 22
WHEREFORE, the petition is DENIED. The Decision of the Court
of Appeals dated March 31, 2003 in CA-G.R. CV No. 54906 is
hereby AFFIRMED.
SO ORDERED.
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-
owned corporation, the sum of P50,000 as damages, P5,000 as
funeral expenses, and P11,000 as attorneys' fees, for the death of their
son Dominador Ong in one of the swimming pools operated by
defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of
its swimming pools but avers that his death was caused by his own
negligence or by unavoidable accident. Defendant also avers that it
had exercised due diligence in the selection of, and supervision over,
its employees and that it had observed the diligence required by law
under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement as to
costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at
its Balara filters, Diliman, Quezon City, to which people are invited
and for which a nominal fee of P0.50 for adults and P0.20 for
children is charged. The main pool it between two small pools of oval
shape known as the "Wading pool" and the "Beginners Pool." There
are diving boards in the big pools and the depths of the water at
different parts are indicated by appropriate marks on the wall. The
care and supervision of the pools and the users thereof is entrusted to
a recreational section composed of Simeon Chongco as chief,
Armando Rule, a male nurse, and six lifeguards who had taken the
life-saving course given by the Philippine Red Cross at the YMCA in
Manila. For the safety of its patrons, defendant has provided the
pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a
clinic established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming
in the pool alone or without any attendant. Although defendant does
not maintain a full-time physician in the swimming pool compound,
it has however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador
Ong, a 14-year old high school student and boy scout, and his
brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said
natatorium for they had already been there four or five times before.
They arrived at the natatorium at about 1:45 p.m. After paying the
requisite admission fee, they immediately went to one of the small
pools where the water was shallow. At about 4:35 p.m., Dominador
Ong told his brothers that he was going to the locker room in an
adjoining building to drink a bottle of coke. Upon hearing this, Ruben
and Eusebio went to the bigger pool leaving Dominador in the small
pool and so they did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two lifeguards on duty in
the pool compound, namely, Manuel Abaño and Mario Villanueva.
The tour of duty of Abaño was from 8:00 to 12:00 in the morning and
from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside the pool area and
Manuel Abaño was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area
informed a bather by the name of Andres Hagad, Jr., that somebody
was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abaño of the same happening and Abaño
immediately jumped into the big swimming pool and retrieved the
apparently lifeless body of Dominador Ong from the bottom. The
body was placed at the edge of the pool and Abaño immediately
applied manual artificial respiration. Soon after, male nurse Armando
Rule came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the clinic
by one of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected the boy
with camphorated oil. After the injection, Vicente left on a jeep in
order to fetch Dr. Ayuyao from the University of the Philippines.
Meanwhile, Abaño continued the artificial manual respiration, and
when this failed to revive him, they applied the resuscitator until the
two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao
arrived with another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered that the
body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was
performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of
the deceased the following: an abrasion on the right elbow lateral
aspect; contusion on the right forehead; hematoma on the scalp,
frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the
nails; the lung was soggy with fine froth in the bronchioles; dark fluid
blood in the heart; congestion in the visceral organs, and brownish
fluid in the stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article
2080 of the new Civil Code. The first article provides that "whoever
by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or
negligence is called quasi-delict. Under the second article, this
obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we
may quote the following authorities cited in the decision of the trial
court:
"The rule is well settled that the owners of resorts to which people
generally are expressly or by implication invited are legally bound to
exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably
safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for injuries to a
patron, resulting from lack of ordinary care in providing for his
safety, without the fault of the patron, he is not, however, in any sense
deemed to be the insurer of the safety of patrons. And the death of a
patron within his premises does not cast upon him the burden of
excusing himself from any presumption of negligence" (Bertalot vs.
Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it
was held that there could be no recovery for the death by drowning of
a fifteen-year boy in defendant's natatorium, where it appeared
merely that he was lastly seen alive in water at the shallow end of the
pool, and some ten or fifteen minutes later was discovered
unconscious, and perhaps lifeless, at the bottom of the pool, all
efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable
negligence, the principle to be observed is that the person claiming
damages has the burden of proving that the damage is caused by the
fault or negligence of the person from whom the damage is claimed,
or of one of his employees (Walter A. Smith & Co. vs. Cadwallader
Gibson Lumber Co., 55 Phil., 517). The question then that arises is:
Have appellants established by sufficient evidence the existence of
fault or negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee
failed to take the necessary precaution to protect the lives of its
patrons by not placing at the swimming pools efficient and competent
employees who may render help at a moment's notice, and they
ascribed such negligence to appellee because the lifeguard it had on
the occasion minor Ong was drowning was not available or was
attending to something else with the result that his help came late.
Thus, appellants tried to prove through the testimony of Andres
Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr.
detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard
Manuel Abaño did not immediately respond to the alarm and it was
only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving
the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was vehemently denied
by lifeguard Abaño, but is belied by the written statements given by
them in the investigation conducted by the Police Department of
Quezon City approximately three hours after the happening of the
accident. Thus, these two boys admitted in the investigation that they
narrated in their statements everything they knew of the accident, but,
as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the
swimming pool or was reading a comic magazine when the alarm
was given for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the
latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court
made this conclusion: "The testimony of Ruben Ong and Andres
Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be disregarded
because they are belied by their written statements. (Emphasis
supplied.)
On the other hand, there is sufficient evidence to show that appellee
has taken all necessary precautions to avoid danger to the lives of its
patrons or prevent accident which may cause their death. Thus, it has
been shown that the swimming pools of appellee are provided with a
ring buoy, toy roof, towing line, oxygen resuscitator and a first aid
medicine kit. The bottom of the pools is painted with black colors so
as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as they had
taken a course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule prepared by their
chief and arranged in such a way as to have two guards at a time on
duty to look after the safety of the bathers. There is a male nurse and
a sanitary inspector with a clinic provided with oxygen resuscitator.
And there are security guards who are available always in case of
emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of appellee did
everything possible to bring him back to life. Thus, after he was
placed at the edge of the pool, lifeguard Abaño immediately gave him
manual artificial respiration. Soon thereafter, nurse Armando Rule
arrived, followed by sanitary inspector Iluminado Vicente who
brought with him an oxygen resuscitator. When they found that the
pulse of the boy was abnormal, the inspector immediately injected
him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were being
made, they sent for Dr. Ayuyao from the University of the Philippines
who however came late because upon examining the body he found
him to be already dead. All of the foregoing shows that appellee has
done what is humanly possible under the circumstances to restore life
to minor Ong and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability of appellee
may not be of much help, appellants now switch to the theory that
even if it be assumed that the deceased is partly to be blamed for the
unfortunate incident, still appellee may be held liable under the
doctrine of "last clear chance" for the reason that, having the last
opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the
record does not show how minor Ong came into the big swimming
pool. The only thing the record discloses is that minor Ong informed
his elder brothers that he was going to the locker room to drink a
bottle of coke but that from that time on nobody knew what happened
to him until his lifeless body was retrieved. The doctrine of last clear
chance simply means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears
that the latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has
the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the negligence
of a third person which is imputed to his opponent, is considered in
law solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting himself
in the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is
to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the last clear chance
to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other
party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming
pool and it being apparent that he went 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 the disposal of appellee had
been put into play in order to bring him back to life, it is clear that
there is no room for the application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party
charged is required to act instantaneously, and if the injury cannot be
avoided by the application of all means at hand after the peril is or
should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to
the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d
1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the
trial court, which we find supported by the evidence: "There is (also)
a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water
was only 5.5 feet deep, and in so doing he might have hit or bumped
his forehead against the bottom of the pool, as a consequence of
which he was stunned, and which to his drowning. As a boy scout he
must have received instructions in swimming. He knew, or have
known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law
and the evidence, we hereby affirm the same, without pronouncement
as to costs.
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C.
AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-
appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE
COURT OF APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the
Court of Appeals, which affirmed that of the Court of First Instance
of Manila dismissing petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903 of the old
Civil Code. It appears that in the afternoon of March 18, 1948 a fire
broke out at the Caltex service station at the corner of Antipolo street
and Rizal Avenue, Manila. It started while gasoline was being hosed
from a tank truck into the underground storage, right at the opening
of the receiving tank where the nozzle of the hose was inserted. The
fire spread to and burned several neighboring houses, including the
personal properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo
Boquiren, the first as alleged owner of the station and the second as
its agent in charge of operation. Negligence on the part of both of
them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed
to prove negligence and that respondents had exercised due care in
the premises and with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain
reports on the fire prepared by the Manila Police and Fire
Departments and by a certain Captain Tinio of the Armed Forces of
the Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No.
T-5292 into the underground tank of the Caltex Gasoline Station
located at the corner of Rizal Avenue and Antipolo Street, this City,
an unknown Filipino lighted a cigarette and threw the burning match
stick near the main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores
in pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was spouting. It
burned the truck and the following accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic)
subleased for the installation of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a photograph taken
during the fire and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline
pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a
certain Benito Morales regarding the history of the gasoline station
and what the chief of the fire department had told him on the same
subject.
The foregoing reports were ruled out as "double hearsay" by the
Court of Appeals and hence inadmissible. This ruling is now assigned
as error. It is contended: first, that said reports were admitted by the
trial court without objection on the part of respondents; secondly, that
with respect to the police report (Exhibit V-Africa) which appears
signed by a Detective Zapanta allegedly "for Salvador Capacillo," the
latter was presented as witness but respondents waived their right to
cross-examine him although they had the opportunity to do so; and
thirdly, that in any event the said reports are admissible as an
exception to the hearsay rule under section 35 of Rule 123, now Rule
130.
The first contention is not borne out by the record. The transcript of
the hearing of September 17, 1953 (pp. 167-170) shows that the
reports in question, when offered as evidence, were objected to by
counsel for each of respondents on the ground that they were hearsay
and that they were "irrelevant, immaterial and impertinent." Indeed,
in the court's resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the
witness stand, he was not examined and he did not testify as to the
facts mentioned in his alleged report (signed by Detective Zapanta).
All he said was that he was one of those who investigated "the
location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was
nothing, therefore, on which he need be cross-examined; and the
contents of the report, as to which he did not testify, did not thereby
become competent evidence. And even if he had testified, his
testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is,
without further testimonial evidence on their contents, fall within the
scope of section 35, Rule 123, which provides that "entries in official
records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or by
another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by
law; and (c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been acquired
by him personally or through official information (Moran, Comments
on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered
here. Obviously the material facts recited in the reports as to the
cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an
employee at the gas station were the fire occurred; to Leandro Flores,
driver of the tank truck from which gasoline was being transferred at
the time to the underground tank of the station; and to respondent
Mateo Boquiren, who could not, according to Exhibit V-Africa, give
any reason as to the origin of the fire. To qualify their statements as
"official information" acquired by the officers who prepared the
reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give
such statements for record.1
The reports in question do not constitute an exception to the hearsay
rule; the facts stated therein were not acquired by the reporting
officers through official information, not having been given by the
informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur should apply so as
to presume negligence on the part of appellees. Both the trial court
and the appellate court refused to apply the doctrine in the instant
case on the grounds that "as to (its) applicability ... in the Philippines,
there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar,
however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R,
September 20, 1949), wherein the decision of the Court of Appeals
was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the municipalities of
Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and Development
Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck.
As a result, plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground. The electric
charge coursed through his body and caused extensive and serious
multiple burns from skull to legs, leaving the bone exposed in some
parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year after
the mishap.
The defendant therein disclaimed liability on the ground that the
plaintiff had failed to show any specific act of negligence, but the
appellate court overruled the defense under the doctrine of res ipsa
loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's
evidence to place appellant on its defense. While it is the rule, as
contended by the appellant, that in case of noncontractual negligence,
or culpa aquiliana, the burden of proof is on the plaintiff to establish
that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principal that "where the thing
which caused injury, without fault of the injured person, is under the
exclusive control of the defendant and the injury is such as in the
ordinary course of things does not occur if he having such control use
proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is
peculiarly applicable to the case at bar, where it is unquestioned that
the plaintiff had every right to be on the highway, and the electric
wire was under the sole control of defendant company. In the
ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain
and stress or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent. (Byrne
v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that
established that rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact that the wire
snapped suffices to raise a reasonable presumption of negligence in
its installation, care and maintenance. Thereafter, as observed by
Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay
down doctrines binding on the Supreme Court, but we do not
consider this a reason for not applying the particular doctrine of res
ipsa loquitur in the case at bar. Gasoline is a highly combustible
material, in the storage and sale of which extreme care must be taken.
On the other hand, fire is not considered a fortuitous event, as it
arises almost invariably from some act of man. A case strikingly
similar to the one before Us is Jones vs. Shell Petroleum Corporation,
et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon
which in the year 1934 was leased to the Shell Petroleum Corporation
for a gasoline filling station. On October 8, 1934, during the term of
the lease, while gasoline was being transferred from the tank wagon,
also operated by the Shell Petroleum Corporation, to the underground
tank of the station, a fire started with resulting damages to the
building owned by Jones. Alleging that the damages to his building
amounted to $516.95, Jones sued the Shell Petroleum Corporation for
the recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for $427.82. The Court
of Appeals for the First Circuit reversed this judgment, on the ground
the testimony failed to show with reasonable certainty any negligence
on the part of the Shell Petroleum Corporation or any of its agents or
employees. Plaintiff applied to this Court for a Writ of Review which
was granted, and the case is now before us for decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court of Louisiana
held:
Plaintiff's petition contains two distinct charges of negligence — one
relating to the cause of the fire and the other relating to the spreading
of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building
by the fire, no witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the
fire, we find it established by the record that the filling station and the
tank truck were under the control of the defendant and operated by its
agents or employees. We further find from the uncontradicted
testimony of plaintiff's witnesses that fire started in the underground
tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of
and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned
by the plaintiff.
Predicated on these circumstances and the further circumstance of
defendant's failure to explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to
be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords
reasonable evidence, in absence of explanation by defendant, that the
accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the cases
in this jurisdiction in which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co.,
115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal
force here. The gasoline station, with all its appliances, equipment
and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons
who knew or could have known how the fire started were appellees
and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident
happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila
Police Department (Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex
Gasoline Station complained of occupies a lot approximately 10 m x
10 m at the southwest corner of Rizal Avenue and Antipolo. The
location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot
be excluded and this constitute a secondary hazard to its operation
which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the
concrete walls south and west adjoining the neighborhood are only 2-
1/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.
Records show that there have been two cases of fire which caused not
only material damages but desperation and also panic in the
neighborhood.
Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair shop
for his fleet of taxicabs numbering ten or more, adding another risk to
the possible outbreak of fire at this already small but crowded
gasoline station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal
observation of the facts reported, may properly be considered as an
exception to the hearsay rule. These facts, descriptive of the location
and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under
the doctrine of res ipsa loquitur, since on their face they called for
more stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances. There is
no more eloquent demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the driver of the
gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when
the fire broke out. He said: "Before loading the underground tank
there were no people, but while the loading was going on, there were
people who went to drink coca-cola (at the coca-cola stand) which is
about a meter from the hole leading to the underground tank." He
added that when the tank was almost filled he went to the tank truck
to close the valve, and while he had his back turned to the "manhole"
he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring
houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants'
negligence, therefore, was not only with respect to the cause of the
fire but also with respect to the spread thereof to the neighboring
houses.
There is an admission on the part of Boquiren in his amended answer
to the second amended complaint that "the fire was caused through
the acts of a stranger who, without authority, or permission of
answering defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No evidence on
this point was adduced, but assuming the allegation to be true —
certainly any unfavorable inference from the admission may be taken
against Boquiren — it does not extenuate his negligence. A decision
of the Supreme Court of Texas, upon facts analogous to those of the
present case, states the rule which we find acceptable here. "It is the
rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate
with a danger involved ... we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct
actively and continuously operate to bring about harm to another, the
fact that the active and substantially simultaneous operation of the
effects of a third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not protect the
actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184,
#439). Stated in another way, "The intention of an unforeseen and
unexpected cause, is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly and
proximately cooperates with the independent cause in the resulting
injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd
442.)
The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the facts
not controverted, is one of law and hence may be passed upon by this
Court. These facts are: (1) Boquiren made an admission that he was
an agent of Caltex; (2) at the time of the fire Caltex owned the
gasoline station and all the equipment therein; (3) Caltex exercised
control over Boquiren in the management of the state; (4) the
delivery truck used in delivering gasoline to the station had the name
of CALTEX painted on it; and (5) the license to store gasoline at the
station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6
Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he
denied that he directed one of his drivers to remove gasoline from the
truck into the tank and alleged that the "alleged driver, if one there
was, was not in his employ, the driver being an employee of the
Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the
changes was one to the effect that he was not acting as agent of
Caltex. But then again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal
liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the
equipment therein, but claims that the business conducted at the
service station in question was owned and operated by Boquiren. But
Caltex did not present any contract with Boquiren that would reveal
the nature of their relationship at the time of the fire. There must have
been one in existence at that time. Instead, what was presented was a
license agreement manifestly tailored for purposes of this case, since
it was entered into shortly before the expiration of the one-year
period it was intended to operate. This so-called license agreement
(Exhibit 5-Caltex) was executed on November 29, 1948, but made
effective as of January 1, 1948 so as to cover the date of the fire,
namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with respect to the
fire, as shown by the clause that Caltex "shall not be liable for any
injury to person or property while in the property herein licensed, it
being understood and agreed that LICENSEE (Boquiren) is not an
employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can
hardly be considered an independent contractor. Under that
agreement Boquiren would pay Caltex the purely nominal sum of
P1.00 for the use of the premises and all the equipment therein. He
could sell only Caltex Products. Maintenance of the station and its
equipment was subject to the approval, in other words control, of
Caltex. Boquiren could not assign or transfer his rights as licensee
without the consent of Caltex. The license agreement was supposed
to be from January 1, 1948 to December 31, 1948, and thereafter
until terminated by Caltex upon two days prior written notice. Caltex
could at any time cancel and terminate the agreement in case
Boquiren ceased to sell Caltex products, or did not conduct the
business with due diligence, in the judgment of Caltex. Termination
of the contract was therefore a right granted only to Caltex but not to
Boquiren. These provisions of the contract show the extent of the
control of Caltex over Boquiren. The control was such that the latter
was virtually an employee of the former.
Wherefore, the decision appealed from is reversed and respondents-
appellees are held liable solidarily to appellants, and ordered to pay
them the aforesaid sum of P9,005.80 and P10,000.00, respectively,
with interest from the filing of the complaint, and costs.

Taking into consideration the fact that the operator owed his position
to the company and the latter could remove him or terminate his
services at will; that the service station belonged to the company and
bore its tradename and the operator sold only the products of the
company; that the equipment used by the operator belonged to the
company and were just loaned to the operator and the company took
charge of their repair and maintenance; that an employee of the
company supervised the operator and conducted periodic inspection
of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by
the operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent
contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not

bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may be
shown and inquired into, and should such performance conflict with
the name or title given the contract by the parties, the former must
prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).

The written contract was apparently drawn for the purpose of creating
the apparent relationship of employer and independent contractor,
and of avoiding liability for the negligence of the employees about
the station; but the company was not satisfied to allow such
relationship to exist. The evidence shows that it immediately assumed
control, and proceeded to direct the method by which the work
contracted for should be performed. By reserving the right to
terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to
direct the means and methods by which the work has to be
performed, it must be held liable for the negligence of those
performing service under its direction. We think the evidence was
sufficient to sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged
to Boquiren. But no cash invoices were presented to show that
Boquiren had bought said gasoline from Caltex. Neither was there a
sales contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80,

after deducting the amount of P2,000.00 collected by them on the
insurance of the house. The deduction is now challenged as erroneous
on the ground that Article 2207 of the New Civil Code, which
provides for the subrogation of the insurer to the rights of the insured,
was not yet in effect when the loss took place. However, regardless of
the silence of the law on this point at that time, the amount that
should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong P7,500.00 was
adjudged by the lower court on the basis of the assessed value of the
property destroyed, namely, P1,500.00, disregarding the testimony of
one of the Ong children that said property was worth P4,000.00. We
agree that the court erred, since it is of common knowledge that the
assessment for taxation purposes is not an accurate gauge of fair
market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.
G.R. No. 162987 May 21, 2009
SOFIA M. GUILLANG, represented by SUSAN GUILLANG-
CABATBAT, REYNALDO, GERARDO, BIENVENIDO, DAWNA, and
NELLIE, all surnamed GUILLANG, GENARO GUILLANG, JOSE
DIGNADICE, and ALVIN LLANILLO, Petitioners,
vs.
RODOLFO BEDANIA and RODOLFO DE SILVA, Respondents.
CARPIO, J.:
The Case
1 2
This is a petition for review of the 3 June 2003 Decision and the 23
March 2004 Resolution3 of the Court of Appeals in CA-G.R. CV No.
69289. The 3 June 2003 Decision set aside the 5 December 2000
Decision4 of the Regional Trial Court, Branch 30, Manila (trial court).
The 23 March 2004 Resolution denied the motion for
reconsideration.
The Facts
On 25 October 1994, at about 5:45 in the afternoon, petitioner
Genaro M. Guillang (Genaro) was driving his brand new Toyota
Corolla GLI sedan with conduction sticker no. 54-DFT (car) along
Emilio Aguinaldo Highway (highway) in Cavite. Genaro, Antero
Guillang (Antero), Felipe Jurilla, Jose Dignadice (Dignadice), and
Alvin Llanillo (Llanillo) had all just left from Golden City,
Dasmariñas, Cavite, and were on their way to Manila. At the other
side of the highway, respondent Rodolfo A. Bedania (Bedania) was
driving a ten-wheeler Isuzu cargo truck with plate no. CAC-923
(truck) towards Tagaytay City. The truck was owned by respondent
Rodolfo de Silva (de Silva).
Along the highway and the road leading to the Orchard Golf Course,
Bedania negotiated a U-turn. When the truck entered the opposite
lane of the highway, Genaro’s car hit the right portion of the truck.
The truck dragged Genaro’s car some five meters to the right of the
road.
As a consequence, all the passengers of the car were rushed to the De
La Salle University Medical Center in Dasmariñas, Cavite for
treatment. Because of severe injuries, Antero was later transferred to
the Philippine General Hospital. However, on 3 November 1994,
Antero died due to the injuries he sustained from the collision. The
car was a total wreck while the truck sustained minor damage.
On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the
heirs of Antero5 instituted a complaint for damages based on quasi-
delict against respondents Bedania and de Silva.
On 5 December 2000, the trial court rendered a decision in favor of
petitioners. The trial court found Bedania grossly negligent for
recklessly maneuvering the truck by making a sudden U-turn in the
highway without due regard to traffic rules and the safety of other
motorists. The trial court also declared de Silva grossly negligent in
the selection and supervision of his driver, Bedania. The dispositive
portion of the decision provides:
WHEREFORE, judgment is hereby rendered ordering defendants
Rodolfo A. Bedania and Rodolfo de Silva, jointly and severally, to
pay plaintiffs, as follows:
1. The sum of P508,566.03 representing the damage/repair costs of
the Toyota to plaintiff Genaro M. Guillang.
2. The sum of P50,000.00 for the death of Antero Guillang plus
P185,000.00 for his burial expenses, to the heirs of Antero Guillang.
3. For hospital and medical expenses as reflected in Exhibits E, E-1
to E-30 to plaintiffs Genaro M. Guillang, Jose Dignadice and Alvin
Llanillo.
4. The sum of P50,000.00 as moral damages for the heirs of the
deceased Antero Guillang.
5. The sum of P50,000.00 as moral damages each to plaintiffs Jose
Dignadice, Alvin Llanillo and Genaro Guillang.
6. The sum of P50,000.00 as exemplary damages.
7. The sum of P100,000.00 as and for attorney’s fess.
8. The costs of the suit.
SO ORDERED.6
Respondents appealed to the Court of Appeals.
On 3 June 2003, the Court of Appeals rendered its decision in favor
of respondents. The dispositive portion of the decision provides:
IN VIEW OF ALL THE FOREGOING, the appealed decision is
REVERSED and SET ASIDE. The complaint of the herein appellees
in Civil Case No. 95-73666 is DISMISSED, for lack of merit. The
appellants’ counterclaims in the instant case are likewise
DISMISSED. No pronouncement as to cost.
SO ORDERED.7
Petitioners filed a motion for reconsideration. On 23 March 2004, the
Court of Appeals denied the motion.
Hence, this petition.
The Ruling of the Regional Trial Court
According to the trial court, there is a presumption that a person
driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. 8 In this case, the trial
court found that the Traffic Accident Investigation Report (report), 9
corroborated by the testimonies of the witnesses, showed that the
truck committed a traffic violation by executing a U-turn without
signal lights. The trial court also declared that Bedania violated
Sections 45(b),10 48,11 and 5412 of Republic Act No. 413613 when he
executed the sudden U-turn. The trial court added that Bedania
violated another traffic rule when he abandoned the victims after the
collision.14 The trial court concluded that Bedania was grossly
negligent in his driving and held him liable for damages.
Moreover, the trial court found that Bedania did not make the U-turn
at an intersection. According to the trial court, vehicles trying to
maneuver to change directions must seek an intersection where it is
safer to maneuver and not recklessly make a U-turn in a highway.
The trial court said Bedania should have observed extreme caution in
making a U-turn because it was unexpected that a long cargo truck
would execute a U-turn along the highway.
The trial court also said that Bedania’s gross negligence raised the
legal presumption that de Silva, as Bedania’s employer, was negligent
in the selection and supervision of his employees. The trial court said
that, under Articles 217615 and 218016 of the Civil Code, de Silva’s
liability was based on culpa aquiliana which holds the employer
primarily liable for tortious acts of his employees, subject to the
defense that he exercised all the diligence of a good father of a family
in the selection and supervision of his employees. The trial court
ruled that de Silva failed to prove this defense and, consequently,
held him liable for damages.
The Ruling of the Court of Appeals
The Court of Appeals reversed the trial court’s decision and said that
the trial court overlooked substantial facts and circumstances which,
if properly considered, would justify a different conclusion and alter
the results of the case.
The Court of Appeals dismissed the testimonies of the witnesses and
declared that they were "contrary to human observation, knowledge
and experience." The Court of Appeals also said that the following
were the physical evidences in the case:
1. It was not yet dark when the incident transpired;
2. The four-lane highway the appellees were cruising on was wide,
straight, dry, relatively plain and with no obstructions to the driver’s
vision;
3. The point of impact of the collision is on the lane where the car
was cruising and the car hit the gas tank of the truck located at its
right middle portion, which indicates that the truck had already
properly positioned itself and had already executed the U-turn before
the impact occurred;
4. Genaro Guillang was not able to stop the car in time and the car’s
front portion was totally wrecked. This negates appellees’ contention
that they were traveling at a moderate speed; and
5. The sheer size of the truck makes it improbable for the said vehicle
to negotiate a U-turn at a sudden and fast speed – as appellees
vigorously suggest – without toppling over on its side.17 (Citations
omitted)
The Court of Appeals concluded that the collision was caused by
Genaro’s negligence. The Court of Appeals declared that the truck
arrived at the intersection way ahead of the car and had already
executed the U-turn when the car, traveling at a fast speed, hit the
truck’s side. The Court of Appeals added that considering the time
and the favorable visibility of the road and the road conditions,
Genaro, if he was alert, had ample time to react to the changing
conditions of the road. The Court of Appeals found no reason for
Genaro not to be prudent because he was approaching an intersection
and there was a great possibility that vehicles would be traversing the
intersection either going to or from Orchard Golf Course. The Court
of Appeals said Genaro should have slowed down upon reaching the
intersection. The Court of Appeals concluded that Genaro’s failure to
observe the necessary precautions was the proximate cause of
Antero’s death and the injuries of the petitioners.
The Court of Appeals also relied on the testimony of Police Traffic
Investigator Efren Videna (Videna) that the car was running at a fast
speed and overtook another vehicle just before the collision
occurred.18 The Court of Appeals concluded that Genaro did not see
the truck as the other vehicle temporarily blocked his view of the
intersection. The Court of Appeals also gave weight to Videna’s
testimony that it was normal for a ten-wheeler truck to make a U-turn
on that part of the highway because the entrance to Orchard Golf
Course was spacious.19
The Issues
Petitioners raise the following issues:
1. Did the Court of Appeals decide a question of substance in this
case in a way probably not in accord with law or with the applicable
decisions of the Honorable Supreme Court?
2. Did the Court of Appeals depart from the accepted and usual
course of judicial proceedings particularly when it revised, and recast
the findings of facts of the trial court pertaining to credibility of
witnesses of which the trial court was at the vantage point to
evaluate?
3. Did the Court of Appeals act with grave abuse of discretion
amounting to lack of jurisdiction when it rendered the palpably
questionable Court of Appeals’ Decision that tampered with the
findings of fact of the trial court for no justifiable reason?
4. Is the Court of Appeals’ judgment and resolution reversing the
decision of the trial court supported by the evidence and the law and
jurisprudence applicable?20
The issue in this case is who is liable for the damages suffered by
petitioners. The trial court held Bedania and de Silva, as Bedania’s
employer, liable because the proximate cause of the collision was the
sudden U-turn executed by Bedania without any signal lights. On the
other hand, the Court of Appeals reversed the trial court’s decision
and held Genaro liable because the proximate cause of the collision
was Genaro’s failure to stop the car despite seeing that Bedania was
making a U-turn.
The Ruling of the Court
The principle is well-established that this Court is not a trier of facts.
Therefore, in an appeal by certiorari under Rule 45 of the Rules of
Court, only questions of law may be raised. The resolution of factual
issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this
Court.21
However, this rule is subject to certain exceptions. One of these is
when the findings of the appellate court are contrary to those of the
trial court.22 Findings of fact of the trial court and the Court of
Appeals may also be set aside when such findings are not supported
by the evidence or where the lower courts’ conclusions are based on a
misapprehension of facts.23 Such is the situation in this case and we
shall re-examine the facts and evidence presented before the lower
courts.
Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relations between the parties, is called a
quasi-delict. To sustain a claim based on quasi-delict, the following
requisites must concur: (a) damage suffered by the plaintiff; (b) fault
or negligence of defendant; and (c) connection of cause and effect
between the fault or negligence of defendant and the damage incurred
by the plaintiff.24
There is no dispute that petitioners suffered damages because of the
collision. However, the issues on negligence and proximate cause are
disputed.
On the Presumption of Negligence and Proximate Cause
Negligence is defined as the failure to observe for the protection of
the interest of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other
person suffers injury. In Picart v. Smith,25 we held that the test of
negligence is whether the defendant in doing the alleged negligent act
used that reasonable care and caution which an ordinary person
would have used in the same situation.
The conclusion of the Court of Appeals that Genaro was negligent is
not supported by the evidence on record. In ruling that Genaro was
negligent, the Court of Appeals gave weight and credence to Videna’s
testimony. However, we find that Videna’s testimony was
inconsistent with the police records and report that he made on the
day of the collision. First, Videna testified that the car was running
fast and overtook another vehicle that already gave way to the truck. 26
But this was not indicated in either the report or the police records.
Moreover, if the car was speeding, there should have been skid marks
on the road when Genaro stepped on the brakes to avoid the collision.
But the sketch of the accident showed no skid marks made by the
car.27 Second, Videna testified that the petitioners came from a
drinking spree because he was able to smell liquor. 28 But in the
report,29 Videna indicated that the condition of Genaro was "normal."
Videna did not indicate in the report that Genaro "had been drinking
liquor" or that Genaro "was obviously drunk." Third, Videna testified
that when he arrived at the scene, Bedania was inside his truck. 30 This
contradicts the police records where Videna stated that after the
collision Bedania escaped and abandoned the victims. 31 The police
records also showed that Bedania was arrested by the police at his
barracks in Anabu, Imus, Cavite and was turned over to the police
only on 26 October 1994.32
Under Article 2185 of the Civil Code, unless there is proof to the
contrary, a person driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic regulation.
In this case, the report33 showed that the truck, while making the U-
turn, failed to signal, a violation of traffic rules. The police records
also stated that, after the collision, Bedania escaped and abandoned
the petitioners and his truck.34 This is another violation of a traffic
regulation.35 Therefore, the presumption arises that Bedania was
negligent at the time of the mishap.
The evidence presented in this case also does not support the
conclusion of the Court of Appeals that the truck had already
executed the U-turn before the impact occurred. If the truck had fully
made the U-turn, it should have been hit on its rear. 36 If the truck had
already negotiated even half of the turn and is almost on the other
side of the highway, then the truck should have been hit in the middle
portion of the trailer or cargo compartment. But the evidence clearly
shows, and the Court of Appeals even declared, that the car hit the
truck’s gas tank, located at the truck’s right middle portion, which
disproves the conclusion of the Court of Appeals that the truck had
already executed the U-turn when it was hit by the car.
Moreover, the Court of Appeals said that the point of impact was on
the lane where the car was cruising. Therefore, the car had every right
to be on that road and the car had the right of way over the truck that
was making a U-turn. Clearly, the truck encroached upon the car’s
lane when it suddenly made the U-turn.
The Court of Appeals also concluded that Bedania made the U-turn at
an intersection. Again, this is not supported by the evidence on
record. The police sketch37 does not indicate an intersection and only
shows that there was a road leading to the Orchard Golf Course near
the place of the collision. Furthermore, U-turns are generally not
advisable particularly on major streets.38 Contrary to Videna’s
testimony, it is not normal for a truck to make a U-turn on a highway.
We agree with the trial court that if Bedania wanted to change
direction, he should seek an intersection where it is safer to maneuver
the truck. Bedania should have also turned on his signal lights and
made sure that the highway was clear of vehicles from the opposite
direction before executing the U-turn.
The finding of the Court of Appeals that it was not yet dark when the
collision occurred is also not supported by the evidence on record.
The report stated that the daylight condition at the time of the
collision was "darkness."39
Contrary to the conclusion of the Court of Appeals, the sheer size of
the truck does not make it improbable for the truck to execute a
sudden U-turn. The trial court’s decision did not state that the truck
was traveling at a fast speed when it made the U-turn. The trial court
said the truck made a "sudden" U-turn, meaning the U-turn was made
unexpectedly and with no warning, as shown by the fact that the
truck’s signal lights were not turned on.
Clearly, Bedania’s negligence was the proximate cause of the
collision which claimed the life of Antero and injured the petitioners.
Proximate cause is that which, in the natural and continuous
sequence, unbroken by any efficient, intervening cause, produces the
injury, and without which the result would not have occurred. 40 The
cause of the collision is traceable to the negligent act of Bedania for
if the U-turn was executed with the proper precaution, the mishap in
all probability would not have happened. The sudden U-turn of the
truck without signal lights posed a serious risk to oncoming
motorists. Bedania failed to prevent or minimize that risk. The truck’s
sudden U-turn triggered a series of events that led to the collision
and, ultimately, to the death of Antero and the injuries of petitioners.
We agree with the trial court that de Silva, as Bedania’s employer, is
also liable for the damages suffered by petitioners. De Silva failed to
prove that he exercised all the diligence of a good father of a family
in the selection and supervision of his employees.On the Award of
Damages and Attorney’s Fees
According to prevailing jurisprudence, civil indemnity for death
caused by a quasi-delict is pegged at P50,000.41 Moral damages in the
amount of P50,000 is also awarded to the heirs of the deceased taking
into consideration the pain and anguish they suffered. 42 Bienvenido
Guillang (Bienvenido), Antero’s son, testified that Sofia, Antero’s
wife and his mother, became depressed after Antero’s death and that
Sofia died a year after.43 Bienvenido also testified on the pain and
anguish their family suffered as a consequence of their father’s
death.44 We sustain the trial court’s award of P50,000 as indemnity for
death and P50,000 as moral damages to the heirs of Antero.
As to funeral and burial expenses, the court can only award such
amount as are supported by proper receipts.45 In this case, petitioners
proved funeral and burial expenses of P55,000 as evidenced by
Receipt No. 1082,46 P65,000 as evidenced by Receipt No. 114647 and
P15,000 as evidenced by Receipt No. 1064,48 all issued by the Manila
South Cemetery Association, Inc., aggregating P135,000. We reduce
the trial court’s award of funeral and burial expenses from P185,000
to P135,000.
As to hospitalization expenses, only substantiated and proven
expenses, or those that appear to have been genuinely incurred in
connection with the hospitalization of the victims will be recognized
in court.49 In this case, the trial court did not specify the amount of
hospitalization expenses to be awarded to the petitioners. Since
petitioners presented receipts for hospitalization expenses during the
trial, we will determine the proper amounts to be awarded to each of
them. We award hospitalization expenses of P27,000.98 to the heirs
of Antero,50 P10,881.60 to Llanillo,51 P5,436.77 to Dignadice,52 and
P300 to Genaro53 because these are the amounts duly substantiated by
receipts.
We affirm the trial court’s award of P508,566.03 for the repair of the
car. The Court notes that there is no dispute that Genaro was driving a
brand new Toyota Corolla GLI sedan and that, after the collision, the
car was a total wreck. In this case, the repair order presented by
Genaro is sufficient proof of the damages sustained by the
car.541avvphi1.zw+
Moral damages may be recovered in quasi-delicts causing physical
injuries.55 However, in accordance with prevailing jurisprudence, we
reduce the award of moral damages from P50,000 to P30,000 each to
Llanillo, Dignadice, and Genaro since they only suffered physical
injuries brought about by the collision.56
In quasi-delicts, exemplary damages may be granted if the defendant
acted with gross negligence.57 While the amount of exemplary
damages need not be proved, the plaintiff must show that he is
entitled to moral, temperate or compensatory damages before the
court may consider the question of whether or not exemplary
damages should be awarded.58 In this case, Bedania was grossly
negligent in suddenly making a U-turn in the highway without signal
lights. To serve as an example for the public good, we affirm the trial
court’s award of exemplary damages in the amount of P50,000.
Finally, we affirm the trial court’s award of attorney’s fees in the
amount of P100,000. Under Article 2208 of the Civil Code, attorney’s
fees may be recovered when, as in this case, exemplary damages are
awarded.WHEREFORE, we REVERSE the 3 June 2003 Decision
and 23 March 2004 Resolution of the Court of Appeals in CA-G.R.
CV No. 69289. We REINSTATE with MODIFICATIONS the 5
December 2000 Decision of the Regional Trial Court, Branch 30,
Manila. We ORDER Rodolfo Bedania and Rodolfo de Silva, jointly
and severally, to pay the following amounts:
1. Funeral and Burial Expenses of P135,000 to the heirs of Antero
Guillang;
2. Hospitalization Expenses of P27,000.98 to the heirs of Antero
Guillang, P10,881.60 to Alvin Llanillo, P5,436.77 to Jose Dignadice,
and P300 to Genaro Guillang; and
3. Moral damages of P30,000 each to Alvin Llanillo, Jose Dignadice,
and Genaro Guillang.
SO ORDERED.
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-
owned corporation, the sum of P50,000 as damages, P5,000 as
funeral expenses, and P11,000 as attorneys' fees, for the death of their
son Dominador Ong in one of the swimming pools operated by
defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of
its swimming pools but avers that his death was caused by his own
negligence or by unavoidable accident. Defendant also avers that it
had exercised due diligence in the selection of, and supervision over,
its employees and that it had observed the diligence required by law
under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement as to
costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at
its Balara filters, Diliman, Quezon City, to which people are invited
and for which a nominal fee of P0.50 for adults and P0.20 for
children is charged. The main pool it between two small pools of oval
shape known as the "Wading pool" and the "Beginners Pool." There
are diving boards in the big pools and the depths of the water at
different parts are indicated by appropriate marks on the wall. The
care and supervision of the pools and the users thereof is entrusted to
a recreational section composed of Simeon Chongco as chief,
Armando Rule, a male nurse, and six lifeguards who had taken the
life-saving course given by the Philippine Red Cross at the YMCA in
Manila. For the safety of its patrons, defendant has provided the
pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a
clinic established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming
in the pool alone or without any attendant. Although defendant does
not maintain a full-time physician in the swimming pool compound,
it has however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador
Ong, a 14-year old high school student and boy scout, and his
brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said
natatorium for they had already been there four or five times before.
They arrived at the natatorium at about 1:45 p.m. After paying the
requisite admission fee, they immediately went to one of the small
pools where the water was shallow. At about 4:35 p.m., Dominador
Ong told his brothers that he was going to the locker room in an
adjoining building to drink a bottle of coke. Upon hearing this, Ruben
and Eusebio went to the bigger pool leaving Dominador in the small
pool and so they did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two lifeguards on duty in
the pool compound, namely, Manuel Abaño and Mario Villanueva.
The tour of duty of Abaño was from 8:00 to 12:00 in the morning and
from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside the pool area and
Manuel Abaño was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area
informed a bather by the name of Andres Hagad, Jr., that somebody
was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abaño of the same happening and Abaño
immediately jumped into the big swimming pool and retrieved the
apparently lifeless body of Dominador Ong from the bottom. The
body was placed at the edge of the pool and Abaño immediately
applied manual artificial respiration. Soon after, male nurse Armando
Rule came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the clinic
by one of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected the boy
with camphorated oil. After the injection, Vicente left on a jeep in
order to fetch Dr. Ayuyao from the University of the Philippines.
Meanwhile, Abaño continued the artificial manual respiration, and
when this failed to revive him, they applied the resuscitator until the
two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao
arrived with another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered that the
body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was
performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of
the deceased the following: an abrasion on the right elbow lateral
aspect; contusion on the right forehead; hematoma on the scalp,
frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the
nails; the lung was soggy with fine froth in the bronchioles; dark fluid
blood in the heart; congestion in the visceral organs, and brownish
fluid in the stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article
2080 of the new Civil Code. The first article provides that "whoever
by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or
negligence is called quasi-delict. Under the second article, this
obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we
may quote the following authorities cited in the decision of the trial
court:
"The rule is well settled that the owners of resorts to which people
generally are expressly or by implication invited are legally bound to
exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably
safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for injuries to a
patron, resulting from lack of ordinary care in providing for his
safety, without the fault of the patron, he is not, however, in any sense
deemed to be the insurer of the safety of patrons. And the death of a
patron within his premises does not cast upon him the burden of
excusing himself from any presumption of negligence" (Bertalot vs.
Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it
was held that there could be no recovery for the death by drowning of
a fifteen-year boy in defendant's natatorium, where it appeared
merely that he was lastly seen alive in water at the shallow end of the
pool, and some ten or fifteen minutes later was discovered
unconscious, and perhaps lifeless, at the bottom of the pool, all
efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable
negligence, the principle to be observed is that the person claiming
damages has the burden of proving that the damage is caused by the
fault or negligence of the person from whom the damage is claimed,
or of one of his employees (Walter A. Smith & Co. vs. Cadwallader
Gibson Lumber Co., 55 Phil., 517). The question then that arises is:
Have appellants established by sufficient evidence the existence of
fault or negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee
failed to take the necessary precaution to protect the lives of its
patrons by not placing at the swimming pools efficient and competent
employees who may render help at a moment's notice, and they
ascribed such negligence to appellee because the lifeguard it had on
the occasion minor Ong was drowning was not available or was
attending to something else with the result that his help came late.
Thus, appellants tried to prove through the testimony of Andres
Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr.
detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard
Manuel Abaño did not immediately respond to the alarm and it was
only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving
the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was vehemently denied
by lifeguard Abaño, but is belied by the written statements given by
them in the investigation conducted by the Police Department of
Quezon City approximately three hours after the happening of the
accident. Thus, these two boys admitted in the investigation that they
narrated in their statements everything they knew of the accident, but,
as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the
swimming pool or was reading a comic magazine when the alarm
was given for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the
latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court
made this conclusion: "The testimony of Ruben Ong and Andres
Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be disregarded
because they are belied by their written statements. (Emphasis
supplied.)
On the other hand, there is sufficient evidence to show that appellee
has taken all necessary precautions to avoid danger to the lives of its
patrons or prevent accident which may cause their death. Thus, it has
been shown that the swimming pools of appellee are provided with a
ring buoy, toy roof, towing line, oxygen resuscitator and a first aid
medicine kit. The bottom of the pools is painted with black colors so
as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as they had
taken a course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule prepared by their
chief and arranged in such a way as to have two guards at a time on
duty to look after the safety of the bathers. There is a male nurse and
a sanitary inspector with a clinic provided with oxygen resuscitator.
And there are security guards who are available always in case of
emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of appellee did
everything possible to bring him back to life. Thus, after he was
placed at the edge of the pool, lifeguard Abaño immediately gave him
manual artificial respiration. Soon thereafter, nurse Armando Rule
arrived, followed by sanitary inspector Iluminado Vicente who
brought with him an oxygen resuscitator. When they found that the
pulse of the boy was abnormal, the inspector immediately injected
him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were being
made, they sent for Dr. Ayuyao from the University of the Philippines
who however came late because upon examining the body he found
him to be already dead. All of the foregoing shows that appellee has
done what is humanly possible under the circumstances to restore life
to minor Ong and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability of appellee
may not be of much help, appellants now switch to the theory that
even if it be assumed that the deceased is partly to be blamed for the
unfortunate incident, still appellee may be held liable under the
doctrine of "last clear chance" for the reason that, having the last
opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the
record does not show how minor Ong came into the big swimming
pool. The only thing the record discloses is that minor Ong informed
his elder brothers that he was going to the locker room to drink a
bottle of coke but that from that time on nobody knew what happened
to him until his lifeless body was retrieved. The doctrine of last clear
chance simply means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears
that the latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has
the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the negligence
of a third person which is imputed to his opponent, is considered in
law solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting himself
in the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is
to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the last clear chance
to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other
party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming
pool and it being apparent that he went 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 the disposal of appellee had
been put into play in order to bring him back to life, it is clear that
there is no room for the application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party
charged is required to act instantaneously, and if the injury cannot be
avoided by the application of all means at hand after the peril is or
should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to
the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d
1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the
trial court, which we find supported by the evidence: "There is (also)
a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water
was only 5.5 feet deep, and in so doing he might have hit or bumped
his forehead against the bottom of the pool, as a consequence of
which he was stunned, and which to his drowning. As a boy scout he
must have received instructions in swimming. He knew, or have
known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law
and the evidence, we hereby affirm the same, without pronouncement
as to costs.
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the
plaintiff, Jose Cangco, was in the employment of Manila Railroad
Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is
located upon the line of the defendant railroad company; and in
coming daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon
the occasion in question, January 20, 1915, the plaintiff arose from
his seat in the second class-car where he was riding and, making, his
exit through the door, took his position upon the steps of the coach,
seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo
station there is a cement platform which begins to rise with a
moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover
the length of several coaches. As the train slowed down another
passenger, named Emilio Zuñiga, also an employee of the railroad
company, got off the same car, alighting safely at the point where the
platform begins to rise from the level of the ground. When the train
had proceeded a little farther the plaintiff Jose Cangco stepped off
also, but one or both of his feet came in contact with a sack of
watermelons with the result that his feet slipped from under him and
he fell violently on the platform. His body at once rolled from the
platform and was drawn under the moving car, where his right arm
was badly crushed and lacerated. It appears that after the plaintiff
alighted from the train the car moved forward possibly six meters
before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and
as the railroad station was lighted dimly by a single light located
some distance away, objects on the platform where the accident
occurred were difficult to discern especially to a person emerging
from a lighted car.
The explanation of the presence of a sack of melons on the platform
where the plaintiff alighted is found in the fact that it was the
customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were
contained in numerous sacks which has been piled on the platform in
a row one upon another. The testimony shows that this row of sacks
was so placed of melons and the edge of platform; and it is clear that
the fall of the plaintiff was due to the fact that his foot alighted upon
one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily
to be credited.
The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received
were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his
arm was amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where a second
operation was performed and the member was again amputated
higher up near the shoulder. It appears in evidence that the plaintiff
expended the sum of P790.25 in the form of medical and surgical fees
and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of
First Instance of the city of Manila to recover damages of the
defendant company, founding his action upon the negligence of the
servants and employees of the defendant in placing the sacks of
melons upon the platform and leaving them so placed as to be a
menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew
therefrom his conclusion to the effect that, although negligence was
attributable to the defendant by reason of the fact that the sacks of
melons were so placed as to obstruct passengers passing to and from
the cars, nevertheless, the plaintiff himself had failed to use due
caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the
defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company
were guilty of negligence in piling these sacks on the platform in the
manner above stated; that their presence caused the plaintiff to fall as
he alighted from the train; and that they therefore constituted an
effective legal cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the
plaintiff's own contributory negligence. In resolving this problem it is
necessary that each of these conceptions of liability, to-wit, the
primary responsibility of the defendant company and the contributory
negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the
defendant is the contract of carriage, and that the obligation to
respond for the damage which plaintiff has suffered arises, if at all,
from the breach of that contract by reason of the failure of defendant
to exercise due care in its performance. That is to say, its liability is
direct and immediate, differing essentially, in legal viewpoint from
that presumptive responsibility for the negligence of its servants,
imposed by article 1903 of the Civil Code, which can be rebutted by
proof of the exercise of due care in their selection and supervision.
Article 1903 of the Civil Code is not applicable to obligations arising
ex contractu, but only to extra-contractual obligations — or to use the
technical form of expression, that article relates only to culpa
aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and
1104 of the Civil Code, clearly points out this distinction, which was
also recognized by this Court in its decision in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting
upon article 1093 Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the
source of an obligation between persons not formerly connected by
any legal tie" and culpa considered as an accident in the performance
of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is
not applicable to acts of negligence which constitute the breach of a
contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code]
are applicable are understood to be those not growing out of pre-
existing duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are subject to article
1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and
Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which,
under the Spanish law, is, in certain cases imposed upon employers
with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the principle of
respondeat superior — if it were, the master would be liable in every
case and unconditionally — but upon the principle announced in
article 1902 of the Civil Code, which imposes upon all persons who
by their fault or negligence, do injury to another, the obligation of
making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant
of the method of managing such a vehicle, is himself guilty of an act
of negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the
very instant that the unskillful servant, while acting within the scope
of his employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any
negligence whatever in the selection and direction of the servant, he
is not liable for the acts of the latter, whatever done within the scope
of his employment or not, if the damage done by the servant does not
amount to a breach of the contract between the master and the person
injured.
It is not accurate to say that proof of diligence and care in the
selection and control of the servant relieves the master from liability
for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the
liability arising from extra-contractual culpa is always based upon a
voluntary act or omission which, without willful intent, but by mere
negligence or inattention, has caused damage to another. A master
who exercises all possible care in the selection of his servant, taking
into consideration the qualifications they should possess for the
discharge of the duties which it is his purpose to confide to them, and
directs them with equal diligence, thereby performs his duty to third
persons to whom he is bound by no contractual ties, and he incurs no
liability whatever if, by reason of the negligence of his servants, even
within the scope of their employment, such third person suffer
damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to
proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions,
as found in the Porto Rico Code, has held that these articles are
applicable to cases of extra-contractual culpa exclusively. (Carmona
vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in
the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which
was an action brought upon the theory of the extra-contractual
liability of the defendant to respond for the damage caused by the
carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903
of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of
the master or employer either in selection of the servant or employee,
or in supervision over him after the selection, or both; and (2) that
that presumption is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father
of a family, the presumption is overcome and he is relieved from
liability.
This theory bases the responsibility of the master ultimately on his
own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in
striking contrast to the American doctrine that, in relations with
strangers, the negligence of the servant in conclusively the negligence
of the master.
The opinion there expressed by this Court, to the effect that in case of
extra-contractual culpa based upon negligence, it is necessary that
there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p. 611) that the
liability created by article 1903 is imposed by reason of the breach of
the duties inherent in the special relations of authority or superiority
existing between the person called upon to repair the damage and the
one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the
negligent acts or omissions of their servants or agents, when such acts
or omissions cause damages which amount to the breach of a contact,
is not based upon a mere presumption of the master's negligence in
their selection or control, and proof of exercise of the utmost
diligence and care in this regard does not relieve the master of his
liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the breach
or omission of those mutual duties which civilized society imposes
upon it members, or which arise from these relations, other than
contractual, of certain members of society to others, generally
embraced in the concept of status. The legal rights of each member of
society constitute the measure of the corresponding legal duties,
mainly negative in character, which the existence of those rights
imposes upon all other members of society. The breach of these
general duties whether due to willful intent or to mere inattention, if
productive of injury, give rise to an obligation to indemnify the
injured party. The fundamental distinction between obligations of this
character and those which arise from contract, rests upon the fact that
in cases of non-contractual obligation it is the wrongful or negligent
act or omission itself which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently of the breach
of the voluntary duty assumed by the parties when entering into the
contractual relation.
With respect to extra-contractual obligation arising from negligence,
whether of act or omission, it is competent for the legislature to elect
— and our Legislature has so elected — whom such an obligation is
imposed is morally culpable, or, on the contrary, for reasons of public
policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those
person who acts or mission are imputable, by a legal fiction, to others
who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to
limit extra-contractual liability — with certain well-defined
exceptions — to cases in which moral culpability can be directly
imputed to the persons to be charged. This moral responsibility may
consist in having failed to exercise due care in the selection and
control of one's agents or servants, or in the control of persons who,
by reason of their status, occupy a position of dependency with
respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by
contract to render service to another, is wholly different from that to
which article 1903 relates. When the sources of the obligation upon
which plaintiff's cause of action depends is a negligent act or
omission, the burden of proof rests upon plaintiff to prove the
negligence — if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the benefit
of plaintiff, and it is alleged that plaintiff has failed or refused to
perform the contract, it is not necessary for plaintiff to specify in his
pleadings whether the breach of the contract is due to willful fault or
to negligence on the part of the defendant, or of his servants or
agents. Proof of the contract and of its nonperformance is sufficient
prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual
culpa, a suing creditor should assume the burden of proof of its
existence, as the only fact upon which his action is based; while on
the contrary, in a case of negligence which presupposes the existence
of a contractual obligation, if the creditor shows that it exists and that
it has been broken, it is not necessary for him to prove negligence.
(Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a
contract to show that the breach was due to the negligent conduct of
defendant or of his servants, even though such be in fact the actual
cause of the breach, it is obvious that proof on the part of defendant
that the negligence or omission of his servants or agents caused the
breach of the contract would not constitute a defense to the action. If
the negligence of servants or agents could be invoked as a means of
discharging the liability arising from contract, the anomalous result
would be that person acting through the medium of agents or servants
in the performance of their contracts, would be in a better position
than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal
negligent act causes its destruction, he is unquestionably liable.
Would it be logical to free him from his liability for the breach of his
contract, which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his servant whose
negligence caused the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete immunity from
damages arising from the breach of their contracts if caused by
negligent acts as such juridical persons can of necessity only act
through agents or servants, and it would no doubt be true in most
instances that reasonable care had been taken in selection and
direction of such servants. If one delivers securities to a banking
corporation as collateral, and they are lost by reason of the negligence
of some clerk employed by the bank, would it be just and reasonable
to permit the bank to relieve itself of liability for the breach of its
contract to return the collateral upon the payment of the debt by
proving that due care had been exercised in the selection and
direction of the clerk?
This distinction between culpa aquiliana, as the source of an
obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the
supreme court of Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20,
1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court rejected
defendant's contention, saying:
These are not cases of injury caused, without any pre-existing
obligation, by fault or negligence, such as those to which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the
liability of employers for damage done by the negligent acts of their
servants will show that in no case has the court ever decided that the
negligence of the defendant's servants has been held to constitute a
defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held
that the owner of a carriage was not liable for the damages caused by
the negligence of his driver. In that case the court commented on the
fact that no evidence had been adduced in the trial court that the
defendant had been negligent in the employment of the driver, or that
he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima
(6 Phil. Rep., 215), the plaintiff sued the defendant for damages
caused by the loss of a barge belonging to plaintiff which was
allowed to get adrift by the negligence of defendant's servants in the
course of the performance of a contract of towage. The court held,
citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the
defendant grew out of a contract made between it and the plaintiff . . .
we do not think that the provisions of articles 1902 and 1903 are
applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff
sued the defendant to recover damages for the personal injuries
caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time.
The court found that the damages were caused by the negligence of
the driver of the automobile, but held that the master was not liable,
although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length
of time as to give the owner a reasonable opportunity to observe them
and to direct the driver to desist therefrom. . . . The act complained of
must be continued in the presence of the owner for such length of
time that the owner by his acquiescence, makes the driver's acts his
own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage
& Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its
conclusion as to the liability of the defendant upon article 1903,
although the facts disclosed that the injury complaint of by plaintiff
constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was
that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between private
individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of negligence
had not been overcome.
It is evident, therefore that in its decision Yamada case, the court
treated plaintiff's action as though founded in tort rather than as based
upon the breach of the contract of carriage, and an examination of the
pleadings and of the briefs shows that the questions of law were in
fact discussed upon this theory. Viewed from the standpoint of the
defendant the practical result must have been the same in any event.
The proof disclosed beyond doubt that the defendant's servant was
grossly negligent and that his negligence was the proximate cause of
plaintiff's injury. It also affirmatively appeared that defendant had
been guilty of negligence in its failure to exercise proper discretion in
the direction of the servant. Defendant was, therefore, liable for the
injury suffered by plaintiff, whether the breach of the duty were to be
regarded as constituting culpa aquiliana or culpa contractual. As
Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs
an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking
obligation, its essential characteristics are identical. There is always
an act or omission productive of damage due to carelessness or
inattention on the part of the defendant. Consequently, when the court
holds that a defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to exercise proper care
in the selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be
inferred, because the court held in the Yamada case that defendant
was liable for the damages negligently caused by its servants to a
person to whom it was bound by contract, and made reference to the
fact that the defendant was negligent in the selection and control of
its servants, that in such a case the court would have held that it
would have been a good defense to the action, if presented squarely
upon the theory of the breach of the contract, for defendant to have
proved that it did in fact exercise care in the selection and control of
the servant.
The true explanation of such cases is to be found by directing the
attention to the relative spheres of contractual and extra-contractual
obligations. The field of non- contractual obligation is much more
broader than that of contractual obligations, comprising, as it does,
the whole extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere fact that a
person is bound to another by contract does not relieve him from
extra-contractual liability to such person. When such a contractual
relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-
contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe means
of entering and leaving its trains (civil code, article 1258). That duty,
being contractual, was direct and immediate, and its non-performance
could not be excused by proof that the fault was morally imputable to
defendant's servants.
The railroad company's defense involves the assumption that even
granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its
trains, the direct and proximate cause of the injury suffered by
plaintiff was his own contributory negligence in failing to wait until
the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case
(supra), if the accident was caused by plaintiff's own negligence, no
liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be
apportioned. It is, therefore, important to ascertain if defendant was
in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come
to a full stop before alighting, the particular injury suffered by him
could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for
a passenger to alight from a moving train. We are not disposed to
subscribe to this doctrine in its absolute form. We are of the opinion
that this proposition is too badly stated and is at variance with the
experience of every-day life. In this particular instance, that the train
was barely moving when plaintiff alighted is shown conclusively by
the fact that it came to stop within six meters from the place where he
stepped from it. Thousands of person alight from trains under these
conditions every day of the year, and sustain no injury where the
company has kept its platform free from dangerous obstructions.
There is no reason to believe that plaintiff would have suffered any
injury whatever in alighting as he did had it not been for defendant's
negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject
is that expressed in Thompson's work on Negligence (vol. 3, sec.
3010) as follows:
The test by which to determine whether the passenger has been guilty
of negligence in attempting to alight from a moving railway train, is
that of ordinary or reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the
circumstances disclosed by the evidence. This care has been defined
to be, not the care which may or should be used by the prudent man
generally, but the care which a man of ordinary prudence would use
under similar circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in
Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this;
Was there anything in the circumstances surrounding the plaintiff at
the time he alighted from the train which would have admonished a
person of average prudence that to get off the train under the
conditions then existing was dangerous? If so, the plaintiff should
have desisted from alighting; and his failure so to desist was
contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the
train was yet slowly moving. In considering the situation thus
presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by the
sacks of melons piled on the platform existed; and as the defendant
was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a
right to assume, in the absence of some circumstance to warn him to
the contrary, that the platform was clear. The place, as we have
already stated, was dark, or dimly lighted, and this also is proof of a
failure upon the part of the defendant in the performance of a duty
owing by it to the plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of alighting passengers,
the placing of them adequately so that their presence would be
revealed.
As pertinent to the question of contributory negligence on the part of
the plaintiff in this case the following circumstances are to be noted:
The company's platform was constructed upon a level higher than
that of the roadbed and the surrounding ground. The distance from
the steps of the car to the spot where the alighting passenger would
place his feet on the platform was thus reduced, thereby decreasing
the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the
passenger a stable and even surface on which to alight. Furthermore,
the plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off while
the train was yet moving as the same act would have been in an aged
or feeble person. In determining the question of contributory
negligence in performing such act — that is to say, whether the
passenger acted prudently or recklessly — the age, sex, and physical
condition of the passenger are circumstances necessarily affecting the
safety of the passenger, and should be considered. Women, it has
been observed, as a general rule are less capable than men of
alighting with safety under such conditions, as the nature of their
wearing apparel obstructs the free movement of the limbs. Again, it
may be noted that the place was perfectly familiar to the plaintiff as it
was his daily custom to get on and of the train at this station. There
could, therefore, be no uncertainty in his mind with regard either to
the length of the step which he was required to take or the character
of the platform where he was alighting. Our conclusion is that the
conduct of the plaintiff in undertaking to alight while the train was
yet slightly under way was not characterized by imprudence and that
therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was
earning P25 a month as a copyist clerk, and that the injuries he has
suffered have permanently disabled him from continuing that
employment. Defendant has not shown that any other gainful
occupation is open to plaintiff. His expectancy of life, according to
the standard mortality tables, is approximately thirty-three years. We
are of the opinion that a fair compensation for the damage suffered by
him for his permanent disability is the sum of P2,500, and that he is
also entitled to recover of defendant the additional sum of P790.25
for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby
rendered plaintiff for the sum of P3,290.25, and for the costs of both
instances. So ordered.
G.R. No. 152040 March 31, 2006
MARIKINA AUTO LINE TRANSPORT CORPORATION and
FREDDIE L. SUELTO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V.
VALDELLON, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review on Certiorari of the
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 16739
affirming the Joint Decision of the Regional Trial Court (RTC) in
Criminal Case No. Q-93-42629 and Civil Case No. Q-93-16051,
where Freddie Suelto was convicted of reckless imprudence resulting
in damages to property.
Erlinda V. Valdellon is the owner of a two-door commercial
apartment located at No. 31 Kamias Road, Quezon City. The
Marikina Auto Line Transport Corporation (MALTC) is the owner-
operator of a passenger bus with Plate Number NCV-849. Suelto, its
employee, was assigned as the regular driver of the bus. 2
At around 2:00 p.m. on October 3, 1992, Suelto was driving the
aforementioned passenger bus along Kamias Road, Kamuning,
Quezon City, going towards Epifanio de los Santos Avenue (EDSA).
The bus suddenly swerved to the right and struck the terrace of the
commercial apartment owned by Valdellon located along Kamuning
Road.3 Upon Valdellon’s request, the court ordered Sergio Pontiveros,
the Senior Building Inspection Officer of the City Engineer’s Office,
to inspect the damaged terrace. Pontiveros submitted a report
enumerating and describing the damages:
(1) The front exterior and the right side concrete columns of the
covered terrace were vertically displaced from its original position
causing exposure of the vertical reinforcement.
(2) The beams supporting the roof and parapet walls are found with
cracks on top of the displaced columns.
(3) The 6″ CHB walls at [the] right side of the covered terrace were
found with cracks caused by this accident.
(4) The front iron grills and concrete balusters were found totally
damaged and the later [sic] beyond repair.4
He recommended that since the structural members made of concrete
had been displaced, the terrace would have to be demolished "to keep
its monolithicness, and to insure the safety and stability of the
building."5
Photographs6 of the damaged terrace were taken. Valdellon
commissioned Engr. Jesus R. Regal, Jr. to estimate the cost of repairs,
inclusive of labor and painting, and the latter pegged the cost at
P171,088.46.7
In a letter dated October 19, 1992 addressed to the bus company and
Suelto, Valdellon demanded payment of P148,440.00, within 10 days
from receipt thereof, to cover the cost of the damage to the terrace. 8
The bus company and Suelto offered a P30,000.00 settlement which
Valdellon refused.9
Valdellon filed a criminal complaint for reckless imprudence
resulting in damage to property against Suelto. After the requisite
preliminary investigation, an Information was filed with the RTC of
Quezon City. The accusatory portion of the Information reads:
That on or about the 3rd day of October 1992, in Quezon City,
Philippines, the said accused, being then the driver and/or person in
charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did
then and there unlawfully, and feloniously drive, manage, and operate
the same along Kamias Road, in said City, in a careless, reckless,
negligent, and imprudent manner, by then and there making the said
vehicle run at a speed greater than was reasonable and proper without
taking the necessary precaution to avoid accident to person/s and
damage to property, and considering the condition of the traffic at
said place at the time, causing as a consequence of his said
carelessness, negligence, imprudence and lack of precaution, the said
vehicle so driven, managed and operated by him to hit and bump, as
in fact it hit and bump a commercial apartment belonging to
ERLINDA V. VALDELLON located at No. 31 Kamias Road, this
City, thereby causing damages to said apartment in the total amount
of P171,088.46, Philippine Currency, to her damage and prejudice in
the total amount aforementioned.
CONTRARY TO LAW.10
Valdellon also filed a separate civil complaint against Suelto and the
bus company for damages. She prayed that after due proceedings,
judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Court to
issue a writ of preliminary attachment against the defendants upon
approval of plaintiff’s bond, and after trial on the merits, to render a
decision in favor of the plaintiff, ordering the defendants, jointly and
severally, to pay –
a) the total sum of P171,088.46 constituting the expenses for the
repair of the damaged apartment of plaintiff, with interests to be
charged thereon at the legal rate from the date of the formal demand
until the whole obligation is fully paid;
b) the sum of not less than P20,000.00 each as compensatory and
exemplary damages;
c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00
for each appearance of plaintiff’s counsel; and costs of suit;
PLAINTIFF further prays for such other reliefs as may be just and
equitable in the premises.11
A joint trial of the two cases was ordered by the trial court. 12
The trial court conducted an ocular inspection of the damaged
terrace, where defendants offered to have it repaired and restored to
its original state. Valdellon, however, disagreed because she wanted
the building demolished to give way for the construction of a new
one.13
During the trial, Valdellon testified on the damage caused to the
terrace of her apartment, and, in support thereof, adduced in evidence
a receipt for P35,000.00, dated October 20, 1993, issued by the BB
Construction and Steel Fabricator for "carpentry, masonry, welding
job and electrical [work]."14
Pontiveros of the Office of the City Engineer testified that there was a
need to change the column of the terrace, but that the building should
also be demolished because "if concrete is destroyed, [one] cannot
have it restored to its original position."15
Engr. Jesus Regal, Jr., the proprietor of the SSP Construction,
declared that he inspected the terrace and estimated the cost of
repairs, including labor, at P171,088.46.
Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving
the bus on its way to Ayala Avenue, Makati, Metro Manila. When he
reached the corner of K-H Street at Kamias Road, Quezon City, a
passenger jeepney suddenly crossed from EDSA going to V. Luna
and swerved to the lane occupied by the bus. Suelto had to swerve the
bus to the right upon which it hit the side front of the terrace of
Valdellon’s two-door apartment.16 Based on his estimate, the cost to
the damage on the terrace of the apartment amounted to P40,000.00. 17
On cross-examination, Suelto declared that he saw the passenger
jeepney when it was a meter away from the bus. Before then, he had
seen some passenger jeepneys on the right trying to overtake one
another.18
Architect Arnulfo Galapate testified that the cost of the repair of the
damaged terrace amounted to P55,000.00.19
On April 28, 1994, the trial court rendered judgment finding Suelto
guilty beyond reasonable doubt of reckless imprudence resulting in
damage to property, and ordered MALTC and Suelto to pay, jointly
and severally, P150,000.00 to Valdellon, by way of actual and
compensatory damages, as well as attorney’s fees and costs of suit.
The fallo of the decision reads:
WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG
guilty beyond reasonable doubt of the crime of Reckless Imprudence
Resulting in Damage to Property, said accused is hereby sentenced to
suffer imprisonment of ONE (1) YEAR.
With respect to the civil liability, judgment is hereby rendered in
favor of plaintiff Erlinda Valdellon and against defendant Marikina
Auto Line Transport Corporation and accused Freddie Suelto, where
both are ordered, jointly and severally, to pay plaintiff:
a. the sum of P150,000.00, as reasonable compensation sustained by
plaintiff for her damaged apartment;
b. the sum of P20,000.00, as compensatory and exemplary damages;
c. the sum of P20,000.00, as attorney’s fees; and,
d. the costs of suit.
SO ORDERED.20
MALTC and Suelto, now appellants, appealed the decision to the CA,
alleging that the prosecution failed to prove Suelto’s guilt beyond
reasonable doubt. They averred that the prosecution merely relied on
Valdellon, who testified only on the damage caused to the terrace of
her apartment which appellants also alleged was excessive. Appellant
Suelto further alleged that he should be acquitted in the criminal case
for the prosecution’s failure to prove his guilt beyond reasonable
doubt. He maintained that, in an emergency case, he was not, in law,
negligent. Even if the appellate court affirmed his conviction, the
penalty of imprisonment imposed on him by the trial court is contrary
to law.
In its Brief for the People of the Philippines, the Office of the
Solicitor General (OSG) submitted that the appealed decision should
be affirmed with modification. On Suelto’s claim that the prosecution
failed to prove his guilt for the crime of reckless imprudence
resulting in damage to property, the OSG contended that, applying
the principle of res ipsa loquitur, the prosecution was able to prove
that he drove the bus with negligence and recklessness. The OSG
averred that the prosecution was able to prove that Suelto’s act of
swerving the bus to the right was the cause of damage to the terrace
of Valdellon’s apartment, and in the absence of an explanation to the
contrary, the accident was evidently due to appellant’s want of care.
Consequently, the OSG posited, the burden was on the appellant to
prove that, in swerving the bus to the right, he acted on an
emergency, and failed to discharge this burden. However, the OSG
averred that the trial court erred in sentencing appellant to a straight
penalty of one year, and recommended a penalty of fine.
On June 20, 2000, the CA rendered judgment affirming the decision
of the trial court, but the award for actual damages was reduced to
P100,000.00. The fallo of the decision reads:
WHEREFORE, premises considered, the decision dated April 28,
1994, rendered by the court a quo is AFFIRMED with the
modification that the sum of P150,000.00 as compensation sustained
by the plaintiff-appellee for her damaged apartment be reduced to
P100,000.00 without pronouncement as to costs.
SO ORDERED.21
Appellants filed a Motion for Reconsideration, but the CA denied the
same.22
MALTC and Suelto, now petitioners, filed the instant petition
reiterating its submissions in the CA: (a) the prosecution failed to
prove the crime charged against petitioner Suelto; (b) the prosecution
failed to adduce evidence to prove that respondent suffered actual
damages in the amount of P100,000.00; and (c) the trial court erred in
sentencing petitioner Suelto to one (1) year prison term.
On the first issue, petitioners aver that the prosecution was mandated
to prove that petitioner Suelto acted with recklessness in swerving the
bus to the right thereby hitting the terrace of private respondent’s
apartment. However, the prosecution failed to discharge its burden.
On the other hand, petitioner Suelto was able to prove that he acted in
an emergency when a passenger jeepney coming from EDSA towards
the direction of the bus overtook another vehicle and, in the process,
intruded into the lane of the bus.
On the second issue, petitioners insist that private respondent was
able to prove only the amount of P35,000.00 by way of actual
damages; hence, the award of P100,000.00 is barren of factual basis.
On the third issue, petitioner Suelto posits that the straight penalty of
imprisonment recommended by the trial court, and affirmed by the
CA, is contrary to Article 365 of the Revised Penal Code.
The petition is partially granted.
On the first issue, we find and so resolve that respondent People of
the Philippines was able to prove beyond reasonable doubt that
petitioner Suelto swerved the bus to the right with recklessness,
thereby causing damage to the terrace of private respondent’s
apartment. Although she did not testify to seeing the incident as it
happened, petitioner Suelto himself admitted this in his answer to the
complaint in Civil Case No. Q-93-16051, and when he testified in the
trial court.
Suelto narrated that he suddenly swerved the bus to the right of the
road causing it to hit the column of the terrace of private respondent.
Petitioners were burdened to prove that the damage to the terrace of
private respondent was not the fault of petitioner Suelto.
We have reviewed the evidence on record and find that, as ruled by
the trial court and the appellate court, petitioners failed to prove that
petitioner acted on an emergency caused by the sudden intrusion of a
passenger jeepney into the lane of the bus he was driving.
It was the burden of petitioners herein to prove petitioner Suelto’s
defense that he acted on an emergency, that is, he had to swerve the
bus to the right to avoid colliding with a passenger jeep coming from
EDSA that had overtaken another vehicle and intruded into the lane
of the bus. The sudden emergency rule was enunciated by this Court
in Gan v. Court of Appeals,23 thus:
[O]ne who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of negligence if
he fails to adopt what subsequently and upon reflection may appear
to have been a better method unless the emergency in which he finds
himself is brought about by his own negligence.
Under Section 37 of Republic Act No. 4136, as amended, otherwise
known as the Land Transportation and Traffic Code, motorists are
mandated to drive and operate vehicles on the right side of the road
or highway:
SEC. 37. Driving on right side of highway. – Unless a different
course of action is required in the interest of the safety and the
security of life, person or property, or because of unreasonable
difficulty of operation in compliance herewith, every person
operating a motor vehicle or an animal-drawn vehicle on a highway
shall pass to the right when meeting persons or vehicles coming
toward him, and to the left when overtaking persons or vehicles going
the same direction, and when turning to the left in going from one
highway to another, every vehicle shall be conducted to the right of
the center of the intersection of the highway.
Section 35 of the law provides, thus:
Sec. 35. Restriction as to speed.—(a) Any person driving a motor
vehicle on a highway shall drive the same at a careful and prudent
speed, not greater nor less than is reasonable and proper, having due
regard for the traffic, the width of the highway, and of any other
condition then and there existing; and no person shall drive any
motor vehicle upon a highway at such a speed as to endanger the life,
limb and property of any person, nor at a speed greater than will
permit him to bring the vehicle to a stop within the assured clear
distance ahead (emphasis supplied).
In relation thereto, Article 2185 of the New Civil Code provides that
"unless there is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent, if at the time of mishap,
he was violating any traffic regulation." By his own admission,
petitioner Suelto violated the Land Transportation and Traffic Code
when he suddenly swerved the bus to the right, thereby causing
damage to the property of private respondent.
However, the trial court correctly rejected petitioner Suelto’s defense,
in light of his contradictory testimony vis-à-vis his Counter-Affidavit
submitted during the preliminary investigation:
It is clear from the photographs submitted by the prosecution (Exhs.
C, D, G, H & I) that the commercial apartment of Dr. Valdellon
sustained heavy damage caused by the bus being driven by Suelto. "It
seems highly improbable that the said damages were not caused by a
strong impact. And, it is quite reasonable to conclude that, at the time
of the impact, the bus was traveling at a high speed when Suelto tried
to avoid the passenger jeepney." Such a conclusion finds support in
the decision of the Supreme Court in People vs. Ison, 173 SCRA 118,
where the Court stated that "physical evidence is of the highest order.
It speaks more eloquently than a hundred witnesses." The pictures
submitted do not lie, having been taken immediately after the
incident. The damages could not have been caused except by a
speeding bus. Had the accused not been speeding, he could have
easily reduced his speed and come to a full stop when he noticed the
jeep. Were he more prudent in driving, he could have avoided the
incident or even if he could not avoid the incident, the damages
would have been less severe.
In addition to this, the accused has made conflicting statements in his
counter-affidavit and his testimony in court. In the former, he stated
that the reason why he swerved to the right was because he wanted to
avoid the passenger jeepney in front of him that made a sudden stop.
But, in his testimony in court, he said that it was to avoid a passenger
jeepney coming from EDSA that was overtaking by occupying his
lane. Such glaring inconsistencies on material points render the
testimony of the witness doubtful and shatter his credibility.
Furthermore, the variance between testimony and prior statements
renders the witness unreliable. Such inconsistency results in the loss
in the credibility of the witness and his testimony as to his prudence
and diligence.
As already maintained and concluded, the severe damages sustained
could not have resulted had the accused acted as a reasonable and
prudent man would. The accused was not diligent as he claims to be.
What is more probable is that the accused had to swerve to the right
and hit the commercial apartment of the plaintiff because he could
not make a full stop as he was driving too fast in a usually crowded
street.24
Moreover, if the claim of petitioners were true, they should have filed
a third-party complaint against the driver of the offending passenger
jeepney and the owner/operator thereof.
Petitioner Suelto’s reliance on the sudden emergency rule to escape
conviction for the crime charged and his civil liabilities based thereon
is, thus, futile.
On the second issue, we agree with the contention of petitioners that
respondents failed to prove that the damages to the terrace caused by
the incident amounted to P100,000.00. The only evidence adduced by
respondents to prove actual damages claimed by private respondent
were the summary computation of damage made by Engr. Jesus R.
Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB
Construction and Steel Fabricator to private respondent for
P35,000.00 representing cost for carpentry works, masonry, welding,
and electrical works. Respondents failed to present Regal to testify on
his estimation. In its five-page decision, the trial court awarded
P150,000.00 as actual damages to private respondent but failed to
state the factual basis for such award. Indeed, the trial court merely
declared in the decretal portion of its decision that the "sum of
P150,000.00 as reasonable compensation sustained by plaintiff for
her damaged apartment." The appellate court, for its part, failed to
explain how it arrived at the amount of P100,000.00 in its three-page
decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that
there was no urgent necessity to completely demolish the apartment
in question considering the nature of the damages sustained as a
result of the accident. Consequently, appellants continue, the award
of P150,000.00 as compensation sustained by the plaintiff-appellee
for her damaged apartment is an unconscionable amount.
The damaged portions of the apartment in question are not disputed.
Considering the aforesaid damages which are the direct result of the
accident, the reasonable, and adequate compensation due is hereby
fixed at P100,000.00.25
Under Article 2199 of the New Civil Code, actual damages include
all the natural and probable consequences of the act or omission
complained of, classified as one for the loss of what a person already
possesses (daño emergente) and the other, for the failure to receive,
as a benefit, that which would have pertained to him (lucro cesante).
As expostulated by the Court in PNOC Shipping and Transport
Corporation v. Court of Appeals:26
Under Article 2199 of the Civil Code, actual or compensatory
damages are those awarded in satisfaction of, or in recompense for,
loss or injury sustained. They proceed from a sense of natural justice
and are designed to repair the wrong that has been done, to
compensate for the injury inflicted and not to impose a penalty. In
actions based on torts or quasi-delicts, actual damages include all the
natural and probable consequences of the act or omission complained
of. There are two kinds of actual or compensatory damages: one is
the loss of what a person already possesses (daño emergente), and the
other is the failure to receive as a benefit that which would have
pertained to him (lucro cesante).27
The burden of proof is on the party who would be defeated if no
evidence would be presented on either side. The burden is to establish
one’s case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side, is superior to that of the
other. Actual damages are not presumed. The claimant must prove the
actual amount of loss with a reasonable degree of certainty premised
upon competent proof and on the best evidence obtainable. Specific
facts that could afford a basis for measuring whatever compensatory
or actual damages are borne must be pointed out. Actual damages
cannot be anchored on mere surmises, speculations or conjectures. As
the Court declared:
As stated at the outset, to enable an injured party to recover actual or
compensatory damages, he is required to prove the actual amount of
loss with reasonable degree of certainty premised upon competent
proof and on the best evidence available. The burden of proof is on
the party who would be defeated if no evidence would be presented
on either side. He must establish his case by a preponderance of
evidence which means that the evidence, as a whole, adduced by one
side is superior to that of the other. In other words, damages cannot
be presumed and courts, in making an award, must point out specific
facts that could afford a basis for measuring whatever compensatory
or actual damages are borne.28
The Court further declared that "where goods are destroyed by the
wrongful act of defendant, the plaintiff is entitled to their value at the
time of the destruction, that is, normally, the sum of money which he
would have to pay in the market for identical or essentially similar
goods, plus in a proper case, damages for the loss of the use during
the period before replacement.29
While claimants’ bare testimonial assertions in support of their claims
for damages should not be discarded altogether, however, the same
should be admitted with extreme caution. Their testimonies should be
viewed in light of claimants’ self-interest, hence, should not be taken
as gospel truth. Such assertion should be buttressed by independent
evidence. In the language of the Court:
For this reason, Del Rosario’s claim that private respondent incurred
losses in the total amount of P6,438,048.00 should be admitted with
extreme caution considering that, because it was a bare assertion, it
should be supported by independent evidence. Moreover, because he
was the owner of private respondent corporation whatever testimony
he would give with regard to the value of the lost vessel, its
equipment and cargoes should be viewed in the light of his self-
interest therein. We agree with the Court of Appeals that his
testimony as to the equipment installed and the cargoes loaded on the
vessel should be given credence considering his familiarity thereto.
However, we do not subscribe to the conclusion that his valuation of
such equipment, cargo, and the vessel itself should be accepted as
gospel truth. We must, therefore, examine the documentary evidence
presented to support Del Rosario’s claim as regards the amount of
losses.30
An estimate of the damage cost will not suffice:
A fine not exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence or negligence,
shall cause some wrong which, if done maliciously, would have
constituted a light felony.
In the imposition of these penalties, the courts shall exercise their
sound discretion, without regard to the rules prescribed in Article 64
(Emphasis supplied).
In the present case, the only damage caused by petitioner Suelto’s act
was to the terrace of private respondent’s apartment, costing
P55,000.00. Consequently, petitioner’s contention that the CA erred
in awarding P100,000.00 by way of actual damages to private
respondent is correct. We agree that private respondent is entitled to
exemplary damages, and find that the award given by the trial court,
as affirmed by the CA, is reasonable. Considering the attendant
circumstances, we rule that private respondent Valdellon is entitled to
only P20,000.00 by way of exemplary damages.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY
GRANTED. The joint decision of the Regional Trial Court of
Quezon City is AFFIRMED WITH THE MODIFICATION that
petitioner Suelto is sentenced to pay a fine of P55,000.00 with
subsidiary imprisonment in case of insolvency. Petitioners are
ORDERED to pay to Erlinda V. Valdellon, jointly and severally, the
total amount of P55,000.00 by way of actual damages, and
P20,000.00 by way of exemplary damages.

Private respondents failed to adduce adequate and competent proof of No pronouncement as to costs.
the pecuniary loss they actually incurred. It is not enough that the
damage be capable of proof but must be actually proved with a SO ORDERED.
reasonable degree of certainty, pointing out specific facts that afford a
basis for measuring whatever compensatory damages are borne.
Private respondents merely sustained an estimated amount needed for
the repair of the roof of their subject building. What is more, whether
the necessary repairs were caused only by petitioner’s alleged
negligence in the maintenance of its school building, or included the
ordinary wear and tear of the house itself, is an essential question that
remains indeterminable.31

We note, however, that petitioners adduced evidence that, in their

view, the cost of the damage to the terrace of private respondent
would amount to P55,000.00.32 Accordingly, private respondent is
entitled to P55,000.00 actual damages.

We also agree with petitioner Suelto’s contention that the trial court
erred in sentencing him to suffer a straight penalty of one (1) year.
This is so because under the third paragraph of Article 365 of the
Revised Penal Code, the offender must be sentenced to pay a fine
when the execution of the act shall have only resulted in damage to
property. The said provision reads in full:

ART. 365. Imprudence and negligence. – Any person who, by

reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period, to prision correccional in its
medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of
arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit

an act which would, otherwise, constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and maximum periods; if
it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less
than 25 pesos.
G.R. No. 121964 June 17, 1997
DRA. ABDULIA RODRIGUEZ, LEONOR PRIETOS, LEONORA
RODRIGUEZ NOLASCO, LUZVIMINDA ANTIG and JUANITA
RODRIGUEZ, petitioners,
vs.
COURT OF APPEALS, HARRY VILORIA, MARGARITA
MILAGROS VILORIA and JOHN P. YOUNG, respondents.
DAVIDE, JR. J.:
In this petition for review under Rule 45 of the Rules of Court,
petitioners seek reversal of that portion of the 14 March 1995
decision 1 of respondent Court of Appeals in CA-G.R. CV No. 36247 2
dismissing petitioners' complaint in Civil Case No. CEB-8095 of the
Cebu Regional Trial Court, Branch 21. The latter was an action for
damages based on quasi-delict filed by petitioners against private
respondents due to a fire which allegedly started in private
respondents' construction site and damaged petitioners' building.
After trial on the merits, the trial court found that the fire was not
caused by an instrumentality within the exclusive control of
defendants (private respondents) and rendered a decisions 3 against
petitioners. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered:
(1) Dismissing plaintiff's complaint;
(2) Condemning plaintiffs to pay defendants,
(a) Moral damages of P500,000 for defendants Vilorias, and moral
damages of P200,000 for defendant John P. Young;
(b) Exemplary damages of P75,000;
(c) Attorney's fees of P30,000
(3) Ordering plaintiffs to pay, jointly and severally, the costs.
SO ORDERED. 4
Plaintiffs, herein petitioners, appealed from the judgment to
respondent Court of Appeals which docketed the appeal as CA-G.R.
CV No. 36247. In asking for the reversal of the judgment they
imputed upon the trial court the commission of the following errors:
I
THE LOWER COURT GRAVELY ERRED IN EVALUATING THE
TESTIMONY OF EYEWITNESSES.
II
THE TRIAL COURT ERRED IN NOT ADMITTING IN
EVIDENCE THE FIRE INVESTIGATION REPORT DONE BY
THE FIRE DEPARTMENT OFFICIAL.
III
THE TRIAL COURT ERRED IN AWARDING DAMAGES TO
DEFENDANTS-APPELLEES (PRIVATE RESPONDENTS
HEREIN).
IV
ASSUMING ARGUENDO THAT DEFENDANTS-APPELLEES
COULD LAWFULLY PRESENT EVIDENCE ON THEIR
COUNTERCLAIM, THE TRIAL COURT SERIOUSLY ERRED IN
AWARDING ASTRONOMICAL DAMAGES.
V place. Admittedly, the said report was merely hearsay as it failed to
THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR
DAMAGES IN FAVOR OF PLAINTIFFS (HEREIN
PETITIONERS). 5
Respondent Court of Appeals summarized the antecedents in this
case as follows:
On March 15, 1989, a fire broke out which razed two apartment
buildings, owned by plaintiffs-appellants Abdulia Rodriguez,
Leonora Rodriguez Nolasco and Juanita Rodriguez, and partially
destroying a commercial building.
Plaintiffs-appellants, with co-plaintiffs-appellants Leonora Prietos
and Luzviminda Antig who were lessees of the apartment units, filed
a case for damages against defendants-appellees Harry John Viloriam
[sic], Margarita Milagros Viloria, and John P. Young. The complaint
alleged that by reason of the gross negligence and want of care of the
construction workers and employees of the defendants-appellees, the
bunkhouse or workers' quarters in the construction site caught fire
spreading rapidly, burning the adjacent buildings owned by plaintiffs-
appellants. Due to the negligence of defendants-appellees which
resulted in the fire, plaintiffs-appellants suffered actual damages
representing the value of the buildings and other personal properties.
Defendant-appellee John Young, the building contractor, in his
answer, contended that he can not be held responsible even if there
was negligence on the part of the employees for he had exercised the
diligence of a good father of a family in the selection and supervision
of his workers. Plaintiffs-appellants had no cause of action against
him. As counterclaim, defendant-appellee Young sought for moral
damages in the amount of P200,000.00, and exemplary damages of
P50,000.00 and attorney's fees of P10,000.00.
Defendants-appell[ees] Harry and Margarita Viloria also alleged that
plaintiffs-appellants had no cause of action against them. The fire
court not have been caused by gross negligence of their workers for
they did not have any worker in the construction of their building.
The said construction was being undertaken by the independent
contractor, John Young, who hired and supervised his own workers.
The newly constructed building was partially destroyed by the fire.
As counterclaim, defendants-appell[ees] prayed for moral damages in
the sum of P2,500,000.00, exemplary damages of P100,000.00 and
attorney's fees of P20,000.00.
After trial and reception of evidence, the court a quo resolved that the
fire was not caused by an instrumentality within the exclusive control
of the defendants-appellants. The decision stated that plaintiffs-
appellants failed to establish that the fire was the result of defendants-
appellees' or their workers' negligence. 6
Respondent Court of Appeals sustained petitioners only on the third
assigned error. Its discussion on the assigned errors was as follows:
As to the first assigned error, the trial court did not err in the
evaluation of the testimonies of the witnesses, specially in the
testimony of applicants' witness, Noel Villarin. It seemed
unbelievable that witness Villarin was able to see Paner pour gasoline
on the generator through a five-inch wide hole which was four meters
away from where the former was eating. As pointed out by the
appellees how could Villarin see what was going on at the ground
floor which is about ten or eleven feet below. No other witness had
testified having seen the same. No one had even pinpointed the real
source of the fire. As it is, the conclusions reached by the trial court
which has the opportunity to observe the witnesses when they
testified as to what transpired [is] entitled to full respect 7 is applied.
Where the issue is on the credibility of witnesses, generally the
findings of a court a quo will not be disturbed on appeal. 8
As to the second assigned error stating that the report was an
exception to the hearsay rule is [sic] untenable. The report was not
obtained from informants who had the duty to do so. Even the
reporting officer had no personal knowledge of what actually took
comply with the third requisite of admissibility pursuant to Sec. 35,
Rule 123, to the effect that a public officer or other person had
sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information. 9 To
qualify the statements as "official information" acquired by the
officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated
but must have the duty to give such statements for [the] record. 10
We find the third assigned error to be meritorious. In the absence of a
wrongful act or omission or of fraud or bad faith, moral damages
cannot be awarded and that the adverse result of an action does not
per se make the action wrongful and subject the actor to the payment
of damages for the law could not have meant to impose a penalty on
the right to litigate. 11 Neither may exemplary damages be awarded
where there is no evidence of the other party having acted in [a]
wanton, fraudulent or reckless or oppressive manner. 12 Since the
award of exemplary damages is unwarranted, the award of attorney's
fees must necessarily be disallowed. 13 We find the award of damages
to be without adequate evidential [sic] basis.
And more, appellants failed to establish that the proximate cause of
their loss was due to defendants-appellees' negligence. Strangely
however, it was not even ascertained with definiteness the actual
cause or even source of the fire. In sum, appellants failed to prove
that the fire which damaged their apartment buildings was due to the
fault of the appellees.
Considering the foregoing premises, We find as proper the dismissal
of the complaint, however, as to the damages awarded to defendants-
appellees, We find no legal basis to grant the same.
In Dela Paz vs. Intermediate Appellate Court, [G.R. No. L-71537, 17
September 1987] it was held that —
The questioned decision, however, is silent as to how the court
arrived at these damages. Nowhere in the decision did the trial court
discuss the merit of the damages prayed for by the petitioners. There
should be clear factual and legal bases for any award of considerable
damages. 14
The Court of Appeals thus decreed:
ACCORDINGLY, the decision dated September 19, 1991 is hereby
AFFIRMED. The award of damages in favor of defendants-appellees
including the award of attorney's fees are hereby DELETED and SET
ASIDE. 15
Rebuffed in their bid for reconsideration of the decision, petitioners
filed the instant petition, and as grounds therefor allege that:
I
THE COURT OF APPEALS ERRED IN MISAPPLYING FACTS
OF WEIGHT AND SUBSTANCE AFFECTING THE CASE AT
BAR.
II
THE COURT OF APPEALS ERRED IN RULING THAT THE FIRE
INVESTIGATION REPORT IS INADMISSIBLE IN EVIDENCE.
III
THE COURT OF APPEALS ERRED IN RULING THAT SECTION
44, RULE 130 OF THE RULES OF COURT IS NOT APPLICABLE
TO THE CASE AT BAR.
After private respondents filed their respective comments to the
petition as required, we resolved to give due course to the petition
and required the parties to submit their respective memoranda, which
they subsequently did.
Under the first assigned error petitioners want us to give full credit to
the testimony of Noel Villarin, their principal witness, who, they
claimed, "maintained his straight-forward and undisguised manner of
answering the questions" despite the "intense cross-examination."
The trial court, however, refused to believe Villarin, not only because
he had an ulterior motive to testify against private respondent Young,
for which reason the trial court observed:
It may be worth recalling that principal and lone plaintiff's witness
Noel Villarin did testify that only during the hearing did he tell his
story about the fire because all his tools were burned, and John Young
neither had replenish [sic] those tools with sympathy on [sic] him nor
had visited him in the hospital (supra, p. 4). The Court, observing
Villarin, could only sense the spitful tone in his voice, manifesting
released pent-up'ill-will against defendant Young. 16
but more importantly, because the trial court found that "defendants"
witnesses have belied Villarin's word," thus:
"Talino" Reville told the Court that it was impossible to see the
generator when one was upstairs of the bunkhouse — "it could not be
seen because it was under the floor of the bunkhouse; it was not
possible for Villarin to see it." He was with Villarin eating their
supper then, and they were "already through eating but we were still
sitting down" and so, how could Villarin have "peeped" through that
"hole on the wall" high above them? All defendants's [sic] witnesses
testified that the generator never caught fire, and no one at all had
heard any explosion anywhere before the fire was discerned. Exhibit
1 (a photograph of the fire while it was raging) reveals that the
bunkhouse was intact.
And Paner — who, said Villarin, brought the gasoline which caught
fire from a stove as it was poured by Villarin to [sic] the generator —
was neither impleaded as another defendant nor called as a witness,
or charged as an accused in a criminal action. Which omission also
strikes the Court as strange. Such suppression of evidence gives rise
to the presumption that if presented Paner would prove to be adverse
to the plaintiffs (by analogy: People v. Camalog, G.R. 77116, 31
January 1989). 17
The trial court explained why it had to accept the version of
defendants' witnesses in this wise:
The Court needs [sic] not suffer a paralysis of analysis as it compares
the two conflicting claims. Plaintiffs have relied so much on their
own assessment of the integrity and weight of Villarin's testimony.
But the court has found the same to be, under close scrutiny, not only
less weighty but also a piece of evidence that taxes belief. Villarin
said he saw Paner pour the gasoline, this while he and three other
fellow-workers were sitting on the second floor of the bunkhouse and
eating their supper, and Villarin elaborated by adding that he saw
Paner doing this through a hole on the wall. What wall? Paner said
the hole on the wall was at least four (4) meters from the floor of the
bunkhouse on which they were eating, and he could "peep" through
that hole which was higher than by more than double his height! And
he did not reveal all this to the firemen who investigated him. The
credibility of the witness may be affected where he tends to
exaggerate, or displays propensity for needlessly detailed observation
(People v. Wong, 23 SCRA 146). 18
One of the highly revered dicta in our jurisprudence is that this Court
will not interfere with the judgment of the trial court in passing on the
credibility of opposing witnesses unless there appears in the record
some facts or circumstances of weight and influence which have been
overlooked, which, if considered, could affect the result of the case.
The reason therefor is founded on practical and empirical
considerations. The trial judge is in a better position to decide the
question of credibility since he personally heard the witnesses and
observed their deportment and manner of testifying. 19 Petitioners
have offered no convincing arguments to accommodate their case
within the exception; they did not even dare to refute the above
observations and findings of the trial court.
The second and third assigned error are interrelated, involving the
application of Section 44 of Rule 130, which reads as follows:
Sec. 44. Entries in official records. — Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.
20
Petitioners assert that the Fire Investigation Report 21 by an official of
the Cebu City Fire Station should have been admitted in evidence as
an exception to the hearsay rule. The trial and appellate courts
rejected this applying Africa v. Caltex (Phil.) Inc., 22 wherein this
Court laid down the three requisites for admissibility under the
aforesaid section, viz.:
(1) that the entry was made by a police officer, or by another person
especially enjoined by law to do so;
(2) that it was made by the police officer in the performance of his
duties, or by such other person in the performance of a duty
especially enjoined by law; and
(3) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him
personally or through official information. 23
Elaborating on the third requisite, this Court further stated that for the
statements acquired by the public officer under the third requisite to
qualify as "official information," it is necessary that the persons who
gave the statements "not only must have personal knowledge of the
facts stated but must have the duty to give such statements for
record." 24
The Court of Appeals ruled here that the reporting officer who
prepared the Fire Investigation Report "had no personal knowledge of
what actually took place;" besides, the information he received did
not qualify as "official information" since those who gave the
statements to the reporting officer had no personal knowledge of the
facts stated and no duty to give such statements for the record.
Some confusion surrounds the issue of admissibility of the Fire
Investigation Report (Exhibits "A," "A-1" to "A-4" inclusive). The
record discloses that the officer who signed the report, Fire Major
Eduardo P. Enriquez, was subpoenaed at the request of and testified
in open court for petitioners. He identified the Report, which
petitioners offered in their Offer of Exhibits 25 as:
(1) Part of the testimony of Major Eduardo P. Enriquez;
(2) To prove that an impartial investigation has determined that the
"fire started at the generator . . . within the construction site" (Exhibit
"A-3").
Private respondents objected to Exhibits "A," "A-1" to "A-4,"
inclusive, for being "hearsay and incompetent evidence." 26 The trial
court then denied their admission "for being hearsay, this fact
admitted by witness himself, F/Maj. Eduardo Enriquez, as part of
whose testimony said exhibits were offered." 27
In light of the purposes for which the exhibits in question were
offered, as aforestated, the trial court erred in rejecting all of them as
hearsay. Since Major Enriquez himself took the witness stand and
was available for cross-examination, the portions of the report which
were of his personal knowledge or which consisted of his perceptions
and conclusions were not hearsay. The rest of the report, such as the
summary of the statements of the parties based on their sworn
statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer, may then be
considered as independently relevant statements which were gathered
in the course of the investigation and may thus be admitted as such,
but not necessarily to prove the truth thereof. It has been said that:
Where, regardless of the truth or falsity of a statement, the fact that it
has been made is relevant, the hearsay rule does not apply, but the
statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant as to the
existence of such a fact. 28
When Major Enriquez took the witness stand, testified for petitioners
on his Report and made himself available for cross-examination by
the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed
from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in
open court of the officer who made the official record, considers the
matter as an exception to the hearsay rule and makes the entries in
said official record admissible in evidence as prima facie evidence of
the facts therein stated. The underlying reasons for this exceptionary
rule are necessity and trustworthiness, as explained in Antillon v.
Barcelon. 29
The litigation is unlimited in which testimony by officials is daily
needed; the occasions in which the officials would be summoned
from his ordinary duties to declare as a witness are numberless. The
public officers are few in whose daily work something is not done in
which testimony is not needed from official sources. Were there no
exception for official statements, hosts of officials would be found
devoting the greater part of their time to attending as witnesses in
court or delivering their deposition before an officer. The work of
administration of government and the interest of the public having
business with officials would alike suffer in consequence. For these
reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore
on Evidence, sec. 1631).
The law reposes a particular confidence in public officers that it
presumes they will discharge their several trusts with accuracy and
fidelity; and, therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to be true under
such a degree of caution as the nature and circumstances of each case
may appear to require.
It would have been an entirely different matter if Major Enriquez was
not presented to testify on his report. In that case the applicability of
Section 44 of Rule 130 would have been ripe for determination, and
this Court would have agreed with the Court of Appeals that said
report was inadmissible since the aforementioned third requisite was
not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being
no showing that, at the very least, they were under a duty to give the
statements for record.
What appears to us to be the underlying purpose of petitioners in
soliciting affirmance of their thesis that the Report of Major Enriquez
should be admitted as an exception to the hearsay rule, is to shift the
burden of evidence to private respondents under the doctrine of res
ipsa loquitur in negligence cases. They claim, as stated in their offer
of Exhibits, that "the fire started at the generator. . . within the
construction site." This quotation is based on the penultimate
paragraph of page 4 of the Report of Major Enriquez and is obviously
misleading as there is nothing in said paragraph that unequivocally
asserts that the generator was located within the construction site. The
paragraph reads:
After analyzing the evidences [sic] and the circumstances underlying
the situation, one can easily came [sic] to the conclusion that the fire
started at the generator and extended to the bunkhouse and spread
among the combustible stored materials within the construction site.
Among the combustible materials were the plastic (PVC) pipes and
plywoods [sic].
Clearly, the phrase within the construction site could only refer to the
immediately preceding term "combustible stored materials."
The trial court itself concluded that the fire could not have started at
the generator and that the bunkhouse was not burned, thus:
All the defendants's witness testified that the generator never caught
fire, and no one at all had heard any explosion anywhere before the
fire was discerned. Exhibit 1 (a photograph of the fire while it was
raging reveals that the bunkhouse was intact. 30 (emphasis supplied)

It then declared that "the fire was not caused by an instrumentality

within the exclusive control of defendants," 31 which is one of the
requisites for the application of the doctrine of res ipsa loquitur in the
law of negligence. 32 It may further be emphasized that this doctrine
is not intended to and does not dispense with the requirement of proof
of culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and facilitates
the burden of plaintiff of proving a breach of the duty of due care.
The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent or not readily
available. 33

More damaging to petitioners, which could have been enough reason

for them to desist from insisting that the Report of Major Enriquez be
admitted as an exception to the hearsay rule, are the officer's
conclusion and recommendation in his report, viz.:

V. CONCLUSION:

From the foregoing facts and all other evidences [sic] on hand, the
investigator discerned that the cause of the fire was ACCIDENTAL in
nature.

VI. RECOMMENDATION:

It is hereby recommended that the investigation of the case shall be

closed.

Obviously then, the second and third assigned errors are likewise
without merit.

IN VIEW OF THE FOREGOING, the instant petition is DENIED

and the challenged decision of respondent Court of Appeals in CA-
G.R CV No. 36247 is AFFIRMED in toto.

Cost against petitioners.

SO ORDERED.
G.R. No. 141910 August 6, 2002
FGU INSURANCE CORPORATION, petitioner,
vs.
G.P. SARMIENTO TRUCKING CORPORATION and
LAMBERT M. EROLES, respondents.
VITUG, J.:
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on
18 June 1994 thirty (30) units of Condura S.D. white refrigerators
aboard one of its Isuzu truck, driven by Lambert Eroles, from the
plant site of Concepcion Industries, Inc., along South Superhighway
in Alabang, Metro Manila, to the Central Luzon Appliances in
Dagupan City. While the truck was traversing the north diversion
road along McArthur highway in Barangay Anupol, Bamban, Tarlac,
it collided with an unidentified truck, causing it to fall into a deep
canal, resulting in damage to the cargoes.
FGU Insurance Corporation (FGU), an insurer of the shipment, paid
to Concepcion Industries, Inc., the value of the covered cargoes in the
sum of P204,450.00. FGU, in turn, being the subrogee of the rights
and interests of Concepcion Industries, Inc., sought reimbursement of
the amount it had paid to the latter from GPS. Since the trucking
company failed to heed the claim, FGU filed a complaint for damages
and breach of contract of carriage against GPS and its driver Lambert
Eroles with the Regional Trial Court, Branch 66, of Makati City. In
its answer, respondents asserted that GPS was the exclusive hauler
only of Concepcion Industries, Inc., since 1988, and it was not so
engaged in business as a common carrier. Respondents further
claimed that the cause of damage was purely accidental.1âwphi1.nêt
The issues having thus been joined, FGU presented its evidence,
establishing the extent of damage to the cargoes and the amount it
had paid to the assured. GPS, instead of submitting its evidence, filed
with leave of court a motion to dismiss the complaint by way of
demurrer to evidence on the ground that petitioner had failed to prove
that it was a common carrier.
The trial court, in its order of 30 April 1996,1 granted the motion to
dismiss, explaining thusly:
"Under Section 1 of Rule 131 of the Rules of Court, it is provided
that ‘Each party must prove his own affirmative allegation, xxx.’
"In the instant case, plaintiff did not present any single evidence that
would prove that defendant is a common carrier.
"x x x xxx xxx
"Accordingly, the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part of a
common carrier in case of loss, damage or deterioration of goods
during transport under 1735 of the Civil Code is not availing.
"Thus, the laws governing the contract between the owner of the
cargo to whom the plaintiff was subrogated and the owner of the
vehicle which transports the cargo are the laws on obligation and
contract of the Civil Code as well as the law on quasi delicts.
"Under the law on obligation and contract, negligence or fault is not
presumed. The law on quasi delict provides for some presumption of
negligence but only upon the attendance of some circumstances.
Thus, Article 2185 provides:
‘Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.’
"Evidence for the plaintiff shows no proof that defendant was
violating any traffic regulation. Hence, the presumption of negligence
is not obtaining.
"Considering that plaintiff failed to adduce evidence that defendant is
a common carrier and defendant’s driver was the one negligent,
defendant cannot be made liable for the damages of the subject
cargoes."2
The subsequent motion for reconsideration having been denied, 3
plaintiff interposed an appeal to the Court of Appeals, contending that
the trial court had erred (a) in holding that the appellee corporation
was not a common carrier defined under the law and existing
jurisprudence; and (b) in dismissing the complaint on a demurrer to
evidence.
The Court of Appeals rejected the appeal of petitioner and ruled in
favor of GPS. The appellate court, in its decision of 10 June 1999, 4
discoursed, among other things, that -
"x x x in order for the presumption of negligence provided for under
the law governing common carrier (Article 1735, Civil Code) to
arise, the appellant must first prove that the appellee is a common
carrier. Should the appellant fail to prove that the appellee is a
common carrier, the presumption would not arise; consequently, the
appellant would have to prove that the carrier was negligent.
"x x x xxx xxx
"Because it is the appellant who insists that the appellees can still be
considered as a common carrier, despite its `limited clientele,’
(assuming it was really a common carrier), it follows that it
(appellant) has the burden of proving the same. It (plaintiff-appellant)
`must establish his case by a preponderance of evidence, which
means that the evidence as a whole adduced by one side is superior to
that of the other.’ (Summa Insurance Corporation vs. Court of
Appeals, 243 SCRA 175). This, unfortunately, the appellant failed to
do -- hence, the dismissal of the plaintiff’s complaint by the trial
court is justified.
"x x x xxx xxx
"Based on the foregoing disquisitions and considering the
circumstances that the appellee trucking corporation has been `its
exclusive contractor, hauler since 1970, defendant has no choice but
to comply with the directive of its principal,’ the inevitable
conclusion is that the appellee is a private carrier.
"x x x xxx xxx
"x x x the lower court correctly ruled that 'the application of the law
on common carriers is not warranted and the presumption of fault or
negligence on the part of a common carrier in case of loss, damage or
deterioration of good[s] during transport under [article] 1735 of the
Civil Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions and
findings of fact of a trial court are entitled to great weight on appeal
and should not be disturbed unless for strong and valid reasons."5
Petitioner's motion for reconsideration was likewise denied; 6 hence,
the instant petition,7 raising the following issues:
I
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A
COMMON CARRIER AS DEFINED UNDER THE LAW AND
EXISTING JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON
CARRIER OR A PRIVATE CARRIER, MAY BE PRESUMED TO
HAVE BEEN NEGLIGENT WHEN THE GOODS IT
UNDERTOOK TO TRANSPORT SAFELY WERE
SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE
CUSTODY AND POSSESSION.
III
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS
APPLICABLE IN THE INSTANT CASE.
On the first issue, the Court finds the conclusion of the trial court and
the Court of Appeals to be amply justified. GPS, being an exclusive
contractor and hauler of Concepcion Industries, Inc., rendering or
offering its services to no other individual or entity, cannot be
considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of
carrying or transporting passengers or goods or both, by land, water,
or air, for hire or compensation, offering their services to the public,8
whether to the public in general or to a limited clientele in particular,
but never on an exclusive basis.9 The true test of a common carrier is
the carriage of passengers or goods, providing space for those who
opt to avail themselves of its transportation service for a fee. 10 Given
accepted standards, GPS scarcely falls within the term "common
carrier."
The above conclusion nothwithstanding, GPS cannot escape from
liability.
In culpa contractual, upon which the action of petitioner rests as
being the subrogee of Concepcion Industries, Inc., the mere proof of
the existence of the contract and the failure of its compliance justify,
prima facie, a corresponding right of relief.11 The law, recognizing the
obligatory force of contracts,12 will not permit a party to be set free
from liability for any kind of misperformance of the contractual
undertaking or a contravention of the tenor thereof. 13 A breach upon
the contract confers upon the injured party a valid cause for
recovering that which may have been lost or suffered. The remedy
serves to preserve the interests of the promisee that may include his
"expectation interest," which is his interest in having the benefit of
his bargain by being put in as good a position as he would have been
in had the contract been performed, or his "reliance interest," which is
his interest in being reimbursed for loss caused by reliance on the
contract by being put in as good a position as he would have been in
had the contract not been made; or his "restitution interest," which is
his interest in having restored to him any benefit that he has conferred
on the other party.14 Indeed, agreements can accomplish little, either
for their makers or for society, unless they are made the basis for
action.15 The effect of every infraction is to create a new duty, that is,
to make recompense to the one who has been injured by the failure of
another to observe his contractual obligation16 unless he can show
extenuating circumstances, like proof of his exercise of due diligence
(normally that of the diligence of a good father of a family or,
exceptionally by stipulation or by law such as in the case of common
carriers, that of extraordinary diligence) or of the attendance of
fortuitous event, to excuse him from his ensuing liability.
Respondent trucking corporation recognizes the existence of a
contract of carriage between it and petitioner’s assured, and admits
that the cargoes it has assumed to deliver have been lost or damaged
while in its custody. In such a situation, a default on, or failure of
compliance with, the obligation – in this case, the delivery of the
goods in its custody to the place of destination - gives rise to a
presumption of lack of care and corresponding liability on the part of
the contractual obligor the burden being on him to establish
otherwise. GPS has failed to do so.
Respondent driver, on the other hand, without concrete proof of his
negligence or fault, may not himself be ordered to pay petitioner. The
driver, not being a party to the contract of carriage between
petitioner’s principal and defendant, may not be held liable under the
agreement. A contract can only bind the parties who have entered into
it or their successors who have assumed their personality or their
juridical position.17 Consonantly with the axiom res inter alios acta
aliis neque nocet prodest, such contract can neither favor nor
prejudice a third person. Petitioner’s civil action against the driver
can only be based on culpa aquiliana, which, unlike culpa
contractual, would require the claimant for damages to prove
negligence or fault on the part of the defendant. 18
A word in passing. Res ipsa loquitur, a doctrine being invoked by
petitioner, holds a defendant liable where the thing which caused the
injury complained of is shown to be under the latter’s management
and the accident is such that, in the ordinary course of things, cannot
be expected to happen if those who have its management or control
use proper care. It affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of
care.19 It is not a rule of substantive law and, as such, it does not
create an independent ground of liability. Instead, it is regarded as a
mode of proof, or a mere procedural convenience since it furnishes a
substitute for, and relieves the plaintiff of, the burden of producing
specific proof of negligence. The maxim simply places on the
defendant the burden of going forward with the proof.20 Resort to the
doctrine, however, may be allowed only when (a) the event is of a
kind which does not ordinarily occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and
third persons, are sufficiently eliminated by the evidence; and (c) the
indicated negligence is within the scope of the defendant's duty to the
plaintiff.21 Thus, it is not applicable when an unexplained accident
may be attributable to one of several causes, for some of which the
defendant could not be responsible.22
Res ipsa loquitur generally finds relevance whether or not a
contractual relationship exists between the plaintiff and the
defendant, for the inference of negligence arises from the
circumstances and nature of the occurrence and not from the nature
of the relation of the parties.23 Nevertheless, the requirement that
responsible causes other than those due to defendant’s conduct must
first be eliminated, for the doctrine to apply, should be understood as
being confined only to cases of pure (non-contractual) tort since
obviously the presumption of negligence in culpa contractual, as
previously so pointed out, immediately attaches by a failure of the
covenant or its tenor. In the case of the truck driver, whose liability in
a civil action is predicated on culpa acquiliana, while he admittedly
can be said to have been in control and management of the vehicle
which figured in the accident, it is not equally shown, however, that
the accident could have been exclusively due to his negligence, a
matter that can allow, forthwith, res ipsa loquitur to work against
him.
If a demurrer to evidence is granted but on appeal the order of
dismissal is reversed, the movant shall be deemed to have waived the
right to present evidence.24 Thus, respondent corporation may no
longer offer proof to establish that it has exercised due care in
transporting the cargoes of the assured so as to still warrant a remand
of the case to the trial court.1âwphi1.nêt
WHEREFORE, the order, dated 30 April 1996, of the Regional Trial
Court, Branch 66, of Makati City, and the decision, dated 10 June
1999, of the Court of Appeals, are AFFIRMED only insofar as
respondent Lambert M. Eroles is concerned, but said assailed order of
the trial court and decision of the appellate court are REVERSED as
regards G.P. Sarmiento Trucking Corporation which, instead, is
hereby ordered to pay FGU Insurance Corporation the value of the
damaged and lost cargoes in the amount of P204,450.00. No costs.
SO ORDERED.
G.R. No. 147746 October 25, 2005
PERLA COMPANIA DE SEGUROS, INC. and BIENVENIDO S.
PASCUAL, Petitioners,
vs.
SPS. GAUDENCIO SARANGAYA III and PRIMITIVA B.
SARANGAYA, Respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the 1997 Rules of
Civil Procedure seeking to annul the decisions of the Court of
Appeals (CA) dated June 29, 2000 and March 31, 2001, respectively,
which affirmed the decision of the Regional Trial Court (RTC),
Branch 21 of Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva
Sarangaya erected a semi-concrete, semi-narra, one-storey
commercial building fronting the provincial road of Santiago, Isabela.
The building was known as "Super A Building" and was subdivided
into three doors, each of which was leased out. The two-storey
residence of the Sarangayas was behind the second and third doors of
the building. On the left side of the commercial building stood the
office of the Matsushita Electric Philippine Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-
corporation), through its branch manager and co-petitioner
Bienvenido Pascual, entered into a contract of lease of the first door
of the "Super A Building," abutting the office of Matsushita.
Petitioner-corporation renovated its rented space and divided it into
two. The left side was converted into an office while the right was
used by Pascual as a garage for a 1981 model 4-door Ford Cortina, a
company-provided vehicle he used in covering the different towns
within his area of supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but did not
bring the car with him. Three days later, he returned to Santiago and,
after checking his appointments the next day, decided to "warm up"
the car. When he pulled up the handbrake and switched on the
ignition key, the engine made an "odd" sound and did not start.
Thinking it was just the gasoline percolating into the engine, he again
stepped on the accelerator and started the car. This revved the engine
but petitioner again heard an unusual sound. He then saw a small
flame coming out of the engine. Startled, he turned it off, alighted
from the vehicle and started to push it out of the garage when
suddenly, fire spewed out of its rear compartment and engulfed the
whole garage. Pascual was trapped inside and suffered burns on his
face, legs and arms.
Meanwhile, respondents were busy watching television when they
heard two loud explosions. The smell of gasoline permeated the air
and, in no time, fire spread inside their house, destroying all their
belongings, furniture and appliances.
The city fire marshall conducted an investigation and thereafter
submitted a report to the provincial fire marshall. He concluded that
the fire was "accidental." The report also disclosed that petitioner-
corporation had no fire permit as required by law.
Based on the same report, a criminal complaint for "Reckless
Imprudence Resulting to (sic) Damage in (sic) Property"1 was filed
against petitioner Pascual. On the other hand, petitioner-corporation
was asked to pay the amount of P7,992,350, inclusive of the value of
the commercial building. At the prosecutor’s office, petitioner
Pascual moved for the withdrawal of the complaint, which was
granted.
Respondents later on filed a civil complaint based on quasi-delict
against petitioners for a "sum of money and damages," alleging that
Pascual acted with gross negligence while petitioner-corporation
lacked the required diligence in the selection and supervision of
Pascual as its employee. They prayed for payment of the following
damages:
1. P2,070,000.00 - representing the value of the 2-storey residential
building and the 3-door apartment;
2. P5,922,350.00 - representing the value of the jewelries, appliances,
[furniture], fixtures and cash;
3. P8,300.00 – a month for [lost rental] income from July 1995 until
such time that the premises is restored to its former condition or
payment for its value, whichever comes first;
4. P2,000,000.00 – for moral damages;
5. P1,000,000.00 – for exemplary damages, and
6. Attorney’s fees equivalent to 15% of the total amount to be
awarded to the plaintiffs.2
During the trial, respondents presented witnesses who testified that a
few days before the incident, Pascual was seen buying gasoline in a
container from a nearby gas station. He then placed the container in
the rear compartment of the car.
In his answer, Pascual insisted that the fire was purely an accident, a
caso fortuito, hence, he was not liable for damages. He also denied
putting a container of gasoline in the car’s rear compartment. For its
part, petitioner-corporation refused liability for the accident on the
ground that it exercised due diligence of a good father of a family in
the selection and supervision of Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents. The
decretal portion of the decision read:
WHEREFORE, in the light of the foregoing considerations judgment
is hereby rendered ORDERING the defendants, Bienvenido Pascual
and Perla Compania de Seguros, Inc. to pay jointly and solidarily to
the plaintiffs spouses Gaudencio and Primitiva Sarangaya the total
sum of Two Million Nine Hundred Four Thousand Eight Hundred
and Eighty Pesos ([P]2,904,880.00) as actual damages with legal
interest thereon from December 12, 1995 until fully paid. 3 (emphasis
supplied)
The court a quo declared that, although the respondents failed to
prove the precise cause of the fire that engulfed the garage, Pascual
was nevertheless negligent based on the doctrine of res ipsa loquitur.4
It did not, however, categorically rule that the gasoline container
allegedly placed in the rear compartment of the car caused the fire.
The trial court instead declared that both petitioners failed to adduce
sufficient evidence to prove that they employed the necessary care
and diligence in the upkeep of the car.5 Contrary to the claims of
petitioner-corporation, the trial court also found that it failed to
employ the diligence of a good father of a family, as required by law,
in the selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded to
respondents no more than their claim for actual damages covering the
cost of the 2-storey residential building and the commercial building,
including their personal properties. It explained:
According to the plaintiff Gaudencio Sarangaya III, he made a list of
what was lost. His list includes the commercial building that was
burned which he valued at P2,070,000.00. The defendants take
exception to the value given by the plaintiff and for this purpose they
submitted the tax declaration of the building which states that the
market value is P183,770.00. The Court takes judicial notice that the
valuation appearing on the tax declaration of property is always lower
[than] the correct value thereof. Considering that the building that
was burned was a two-storey residential house with a commercial
building annex with a total floor area of 241 square meters as stated
in the tax declaration, mostly concrete mixed with narra and other
lumber materials, the value given by the plaintiffs of P2,070,000.00 is
reasonable and credible and it shall be awarded to the plaintiffs.
The other items listed are assorted [furniture] and fixtures totaling
P307,000.00 assorted appliances worth P358,350.00; two filing
cabinets worth P7,000.00 and clothing and other personal effects
costing P350,000.00, household utensils costing P15,000.00. The
Court finds them reasonable and credible considering the social and
financial stature of the plaintiffs who are businessmen. There could
be no question that they were able to acquire and own quite a lot of
home furnishings and personal belongings. The costing however is
high considering that these belongings were already used for quite
some time so a 20% depreciation should be equitably deducted from
the cost of acquisition submitted by plaintiffs. Thus, the total amount
recoverable would be P1,037,350.00 less 20% or a total of
P829,880.00. The P5,000.00 representing foodstock can also be
ordered paid to the plaintiffs. x x x.6
On appeal to the Court of Appeals, the appellate court again ruled in
favor of respondents but modified the amount of damages awarded
by the trial court. It held:
x x x the Decision of the Court a quo is AFFIRMED, with the
modification that the Appellants are hereby ordered to pay the
Appellees, jointly and severally, the total amount of P600,000.00 by
way of nominal damages under Articles 2222 and 2223 of the New
Civil Code, with interest thereon, at the rate of 6% per annum from
the date of the Decision of this Court.7
The appellate court was in accord with the trial court’s findings that
the doctrine of res ipsa loquitur was correctly applied in determining
the liability of Pascual and that petitioner-corporation, as the
employer, was vicariously liable to respondents. Nonetheless, for
respondents’ failure to substantiate their actual loss, the appellate
court granted nominal damages of P600,000 to them.
Petitioners and respondents filed their respective motions for
reconsideration.
In their MR, petitioners contested the findings of fact of the appellate
court. They denied any liability whatsoever to respondents but this
was rejected by the CA for lack of merit. Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the award of
nominal damages was erroneous. They prayed that, in lieu of the
award of nominal damages, the case should instead be remanded to
the trial court for reception of additional evidence on their claim for
actual damages. The CA granted respondents’ MR. Hence they did
not appeal the CA’s decision to us. According to the CA:
Anent Plaintiffs-Appellees’ plea that, in lieu of the Court’s award of
nominal damages, the case be remanded to the Court a quo, in the
interest of justice, to enable them to adduce evidence to prove their
claim for actual damages, we find the same meritorious.
Accordingly, the Decision of the Court is hereby amended to read as
follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the
Court a quo appealed from is AFFIRMED. The award of nominal
damages is set aside. Let the records be remanded to the Court a
quo for the reception of additional evidence by the Plaintiffs-
Appellees and the Defendants-Appellants anent Plaintiffs-
Appellees’ claim for actual damages.8 (emphasis supplied)
Via this petition, petitioners ascribe the following errors to the
appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE
DOCTRINE OF ["RES IPSA LOQUITUR"] IN THE PRESENT
CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND PERLA
NEGLIGENT IN THE SUPERVISION OF PASCUAL, AND
CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE FIRE
BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF
SUPERVISION OF EMPLOYEE’S CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE SUPREME COURT
ON TRANSPORTATION COMPANIES; AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED THE
REMAND OF THE CASE TO RTC ISABELA FOR RECEPTION
OF ADDITIONAL EVIDENCE BY THE SARANGAYA SPOUSES
ON THEIR CLAIM FOR ACTUAL DAMAGES.9
Res ipsa loquitur is a Latin phrase which literally means "the thing or
the transaction speaks for itself."10 It relates to the fact of an injury
that sets out an inference to the cause thereof or establishes the
plaintiff’s prima facie case.11 The doctrine rests on inference and not
on presumption.12 The facts of the occurrence warrant the supposition
of negligence and they furnish circumstantial evidence of negligence
when direct evidence is lacking.13
The doctrine is based on the theory that the defendant either knows
the cause of the accident or has the best opportunity of ascertaining it
and the plaintiff, having no knowledge thereof, is compelled to allege
negligence in general terms.14 In such instance, the plaintiff relies on
proof of the happening of the accident alone to establish negligence. 15
The doctrine provides a means by which a plaintiff can pin liability
on a defendant who, if innocent, should be able to explain the care he
exercised to prevent the incident complained of. Thus, it is the
defendant’s responsibility to show that there was no negligence on his
part.16
To sustain the allegation of negligence based on the doctrine of res
ipsa loquitur, the following requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless
someone is negligent;
2) the cause of the injury was under the exclusive control of the
person in charge and
3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured.17
Under the first requisite, the occurrence must be one that does not
ordinarily occur unless there is negligence. "Ordinary" refers to the
usual course of events.18 Flames spewing out of a car engine, when it
is switched on, is obviously not a normal event. Neither does an
explosion usually occur when a car engine is revved. Hence, in this
case, without any direct evidence as to the cause of the accident, the
doctrine of res ipsa loquitur comes into play and, from it, we draw
the inference that based on the evidence at hand, someone was in fact
negligent and responsible for the accident.
The test to determine the existence of negligence in a particular case
may be stated as follows: did the defendant in committing the alleged
negligent act, use reasonable care and caution which an ordinarily
prudent person in the same situation would have employed?19 If not,
then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to submit
any proof that he had it periodically checked (as its year-model and
condition required) revealed his negligence. A prudent man should
have known that a 14-year-old car, constantly used in provincial trips,
was definitely prone to damage and other defects. For failing to prove
care and diligence in the maintenance of the vehicle, the necessary
inference was that Pascual had been negligent in the upkeep of the
car.
Pascual attempted to exculpate himself from liability by insisting that
the incident was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed only
when: (a) the cause of the unforeseen and unexpected occurrence was
independent of the human will; (b) it was impossible to foresee the
event which constituted the caso fortuito or, if it could be foreseen, it
was impossible to avoid; (c) the occurrence must be such as to render
it impossible to perform an obligation in a normal manner and (d) the
person tasked to perform the obligation must not have participated in WHEREFORE, the petition is hereby DENIED and the
any course of conduct that aggravated the accident. 20
decision29 of the Court of Appeals affirmed in toto.
In fine, human agency must be entirely excluded as the proximate
cause or contributory cause of the injury or loss.21 In a vehicular Costs against petitioners.
accident, for example, a mechanical defect will not release the
defendant from liability if it is shown that the accident could have SO ORDERED.
been prevented had he properly maintained and taken good care of
the vehicle.22

The circumstances on record do not support the defense of Pascual.

Clearly, there was no caso fortuito because of his want of care and
prudence in maintaining the car.

Under the second requisite, the instrumentality or agency that

triggered the occurrence must be one that falls under the exclusive
control of the person in charge thereof. In this case, the car where the
fire originated was under the control of Pascual. Being its caretaker,
he alone had the responsibility to maintain it and ensure its proper
functioning. No other person, not even the respondents, was charged
with that obligation except him.

Where the circumstances which caused the accident are shown to

have been under the management or control of a certain person and,
in the normal course of events, the incident would not have happened
had that person used proper care, the inference is that it occurred
because of lack of such care.23 The burden of evidence is thus shifted
to defendant to establish that he observed all that was necessary to
prevent the accident from happening. In this aspect, Pascual utterly
failed.

Under the third requisite, there is nothing in the records to show that
respondents contributed to the incident. They had no access to the car
and had no responsibility regarding its maintenance even if it was
parked in a building they owned.

On the second assigned error, we find no reason to reverse the

decision of the Court of Appeals. The relationship between the two
petitioners was based on the principle of pater familias according to
which the employer becomes liable to the party aggrieved by its
employee if he fails to prove due diligence of a good father of a
family in the selection and supervision of his employees. 24 The
burden of proof that such diligence was observed devolves on the
employer who formulated the rules and procedures for the selection
and hiring of his employees.

In the selection of prospective employees, employers are required to

examine them as to their qualifications, experience and service
records.25 While the petitioner-corporation does not appear to have
erred in considering Pascual for his position, its lack of supervision
over him made it jointly and solidarily liable for the fire.

In the supervision of employees, the employer must formulate

standard operating procedures, monitor their implementation and
impose disciplinary measures for the breach thereof. 26 To fend off
vicarious liability, employers must submit concrete proof, including
documentary evidence, that they complied with everything that was
incumbent on them.27 Here, petitioner-corporation’s evidence hardly
included any rule or regulation that Pascual should have observed in
performing his functions. It also did not have any guidelines for the
maintenance and upkeep of company property like the vehicle that
caught fire. Petitioner-corporation did not require periodic reports on
or inventories of its properties either. Based on these circumstances,
petitioner-corporation clearly did not exert effort to be apprised of the
condition of Pascual’s car or its serviceability.

Petitioner-corporation’s argument that the liability attached to

employers only applies in cases involving the supervision of
employees in the transportation business is incorrect. Article 2180 of
the Civil Code states that employers shall be liable for the damage
caused by their employees. The liability is imposed on all those who
by their industry, profession or other enterprise have other persons in G.R. No. L-22533 February 9, 1967
their service or supervision.28 Nowhere does it state that the liability
is limited to employers in the transportation business.
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES
BONIFACIO, respondents.
Placido B. Ramos and Renato L. Ramos for petitioners.
Trinidad & Borromeo for respondents.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola
Bottling Co. of the P.I.1 and Andres Bonifacio in the Court of First
Instance of Manila as a consequence of a collision, on May 10, 1958,
involving the car of Placido Ramos and a tractor-truck and trailer of
PEPESI-COLA. Said car was at the time of the collision driven by
Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's
tractor-truck was then driven by its driver and co-defendant Andres
Bonifacio.
After trial the Court of First Instance rendered judgment on April 15,
1961, finding Bonifacio negligent and declaring that PEPSI-COLA
had not sufficiently proved its having exercised the due diligence of a
good father of a family to prevent the damage. PEPSI-COLA and
Bonifacio, solidarily, were ordered to pay the plaintiffs P2,638.50
actual damages; P2,000.00 moral damages; P2,000.00 as exemplary
damages; and, P1,000.00 attorney's fees, with costs.
Not satisfied with this decision, the defendants appellee to the Court
of Appeals.
Said Court, on January 15, 1964, affirmed the trial court's judgment
insofar as it found defendant Bonifacio negligent, but modified it by
absolving defendant PEPSI-COLA from liability, finding that,
contrary to the plaintiffs' contention, PEPSI-COLA sufficiently
proved due diligence in the selection of its driver Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for review of
the Court of Appeals' decision. And appellants would argue before
this Court that defendant PEPSI-COLA's evidence failed to show that
it had exercised due diligence in the selection of its driver in
question.
Said point, as stated, was resolved by the Court of Appeals in PEPSI-
COLA's favor, thus:
The uncontradicted testimony of Juan T. Anasco, personnel manager
of defendant company, was to the effect that defendant driver was
first hired as a member of the bottle crop in the production
department; that when he was hired as a driver, 'we had size [sic] him
by looking into his background, asking him to submit clearances,
previous experience, physical examination and later on, he was sent
to the pool house to take the usual driver's examination, consisting of:
First, theoretical examination and second, the practical driving
examination, all of which he had undergone, and that the defendant
company was a member of the Safety Council. In view hereof, we are
of the sense that defendant company had exercised the diligence of a
good father of a family in the choice or selection of defendant driver'.
In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G.
2794, cited in appellee's brief, our Supreme Court had occasion to put
it down as a rule that "In order that the defendant may be considered
as having exercised all the diligence of a good father of a family, he
should not have been satisfied with the mere possession of a
professional driver's license; he should have carefully examined the
applicant for employment as to his qualifications, his experiences and
record of service." Defendant Company has taken all these steps.2
Appellants herein seek to assail the foregoing portion of the decision
under review by taking issue with the testimony of Anasco upon
which the findings of due diligence aforestated are rested. Thus, it is
now contended that Añasco being PEPSI-COLA's employee, is a
biased and interested witness; and that his testimony is not
believable.
It is rather clear, therefore, that appellants would raise herein an issue
of fact and credibility, something as to which this Court has
consistently respected the findings of the Court of Appeals, with
some few exceptions, which do not obtain herein.3
Stated differently, Añascos credibility is not for this Court now to re-
examine. And said witness having been found credible by the Court
of Appeals, his testimony, as accepted by said Court, cannot at this
stage be assailed. As We said in Co Tao vs. Court of Appeals, L-9194,
April 25, 1957, assignments of error involving the credibility of
witnesses and which in effect dispute the findings of fact of the Court
of Appeals, cannot be reviewed in these proceedings. For a question
to be one of law it must involve no examination of the probative
value of the evidence presented by the litigants or any of them. 4 And
the distinction is well-known: There is a question of law in a given
case when the doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged facts. 5
From all this it follows that for the purposes of this appeal, it must be
taken as established that, as testified to by Añasco, PEPSI-COLA did
in fact carefully examine the driver-applicant Bonifacio as to his
qualifications, experiences and record of service, taking all steps
mentioned by the Court of Appeals in its decision already
quoted.1äwphï1.ñët
Such being the case, there can be no doubt that PEPSI-COLA
exercised the required due diligence in the selection of its driver. As
ruled by this Court in Campo vs. Camarote 53 O.G. 2794, 2797: "In
order that the defendant may be considered as having exercised all
diligence of a good father of a family, he should not be satisfied with
the mere possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his
qualifications, his experience and record of service."
It should perhaps be stated that in the instant case no question is
raised as to due diligence in the supervision by PEPSI-COLA of its
driver. Article 2180 of the Civil Code provides inter alia:
... The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the
persons herein mentioned prove that they observed all the diligence
of a good father of a family to prevent damage.
And construing a similar provision of the old Civil Code, this Court
said in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of
the master or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and
(2) that the presumption is juris tantum and not juris et de jure, and
consequently may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father
of a family, the presumption is overcome and he is relieved from
liability.
As pointed out, what appellants here contend as not duly proved by
PEPSI-COLA is only due diligence in the selection of its driver. And,
parenthetically, it is not surprising that appellants thus confine their
arguments to this aspect of due diligence, since the record — as even
appellants' brief (pp. 13-17) reflects in quoting in part the testimony
of PEPSI-COLA's witness — would show sufficient evidence to
establish due diligence in the supervision by PEPSI-COLA of its
drivers, including Bonifacio.
Appellants' other assignment of errors are likewise outside the
purview of this Court's reviewing power. Thus, the question of
whether PEPSI- COLA violated the Revised Motor Vehicle Law and
rules and regulations related thereto, not having been raised and
argued in the Court of Appeals, cannot be ventilated herein for the
first time. 6 And the matter of whether or not PEPSI-COLA did acts
to ratify the negligent act of its driver is a factual issue not proper
herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed,
with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
Sanchez and Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967
BENGZON, J.P., J.:
Petitioners seek a reconsideration1 of Our decision2 in the instant case
affirming in toto the challenged decision of the Court of Appeals
absolving respondent PEPSI-COLA from liability. In Our decision,
We refrained from passing on the merits of the question whether
PEPSI-COLA, in operating the tractor-truck and trailer, violated the
Rev. Motor Vehicle Law3 and the rules and regulations related
thereto, for the procedural reason that it did not appear to have been
raised before the Court of Appeals.
It now appears, however, that said question was raised in a motion to
reconsider filed with the Court of Appeals which resolved the same
against petitioners. Due consideration of the matter on its merits,
convinces Us that the decision of the Court of Appeals should still be
affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and
4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1, dated
Sept. 1, 1951, in that at the time of the collision, the trailer-truck,
which had a total weight of 30,000 kgms., was (a) being driven at a
speed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b) was
not equipped with a rear-vision mirror nor provided with a helper for
the driver.
The cited provisions read:
SECTION 27. Registration, operation, and inspection of truck-trailer
combinations, semi-trailers, and tractors.
(a) No trailer or semi-trailer having a gross weight of more than
2,000 kilograms and is not equipped with effective brakes on at least
two opposite wheels of the rear axle and are so controlled that the
brakes will act in unison with or preceding the effective action of the
brakes of the tractor-truck shall be registered for operation on public
highways of the Philippines; provided, that the trialers without brakes
may be registered from year to year for operation under the following
conditions:
1. No such trailer shall be operated at any time at a speed in excess of
15 kilometers per hour in conjunction with a tractor-truck, the actual
gross weight of which is less than twice the weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision mirror to
enable the driver to see vehicles approaching mirror the rear or shall
carry a helper who shall be so stationed on the truck or trailer that he
will constantly have a view of the rear. He shall be provided with
means of effectively signalling to the driver to give way to overtaking
vehicles.
4(e) No truck and trailer combination shall be operated at a speed
greater than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only
to trailers or semi-trailers having a gross weight of more than 2,000
kgms., AND which are "not equipped with effective brakes on at least
two opposite wheels, of the rear axle and are so controlled that the
brakes will act in unison with or preceding the effective action of the
brakes of the tractor-truck..." This is the condition set in the proviso
in par. (a), supra, wherein "trailers without [such] brakes may be
registered from year to year for operation ..." i.e., they should not "be
operated at any time at a speed in excess of 15 kilometers per hour in
conjunction with a tractor-truck ...". But there was no finding by the
Court of Appeals that the truck-trailer here did not have such brakes.
In the absence of such fact, it is subpar. 4(e), supra, that will apply.
And petitioners admit that the truck-trailer was being driven at about
30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on
the night of the collision since he was found to be driving alone.
However, there is no finding that the tractor-truck did not have a rear-
vision mirror. To be sure, the records disclose that Pat. Rodolfo
Pahate, the traffic policeman who went to the collision scene,
testified that he saw the tractor-truck there but he does not remember
if it had any rear vision mirror.4 This cannot prove lack of rear-vision
mirror. And the cited provision — subpar. 4(d) — is complied if
either of the two alternatives, i.e., having a rear-vision mirror or a
helper, is present. Stated otherwise, said provision is violated only
where there is a positive finding that the tractor-truck did not have
both rear-vision mirror and a helper for the driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of
Sec. 8-A of the Rev. Motor Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the
following dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3 meters
wide. However, Sec. 9 (d) of the same law, as amended, providing
that —
SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles
Office with the approval of the Secretary of Public Works and
Communications shall establish regulations and a tariff of additional
fees under which special permits may be issued in the discretion of
the Chief of the Motor Vehicles Office or his deputies, for each of the
following special cases, and without such special permit, no such
motor vehicles shall be operated on the public highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of
permissible dimensions specified in subsections (b) and (c) of section
eight-A hereof. (Emphasis supplied)
xxx xxx xxx
expressly allows the registration, or use of motor vehicles exceeding
the limits of permissible dimensions specified in subsec. (b) of Sec.
8-A. So, to conclude that there was a violation of law — which
undisputably constitutes negligence, at the very least — it is not
enough that the width of the tractor-truck exceed the limit in Sec. 8-
A; in addition, it must also appear that there was no special permit
granted under Sec. 9. Unfortunately for petitioners, that vital factual
link is missing. There was no proof much less any finding to that
effect. And it was incumbent upon petitioners-appellants to have
proved lack of such permit since the tractor-truck and the trailer were
registered.5 Compliance with law and regularity in the performance of
official duty — in this case, the issuance of proper registration papers
— are presumed6 and prevail over mere surmises. Having charged a
violation of law, the onus of substantiating the same fell upon
petitioners-appellants. Hence, the conclusion that there was a
violation of the law lacks factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its
stead, We are urged to apply the Anglo-American doctrine of
respondent superior. We cannot however, abandon the Bahia ruling
without going against the explicit mandate of the law. A motor
vehicle owner is not an absolute insurer against all damages caused
by its driver. Article 2180 of our Civil Code is very explicit that the
owner's responsibility shall cease once it proves that it has observed
the diligence of a good father of a family to prevent damage. The
Bahia case merely clarified what that diligence consists of, namely,
diligence in the selection and supervision of the driver-employee.

Neither could We apply the respondent superior principle. Under

Article 2180 of the Civil Code, the basis of an employer's liability is
his own negligence, not that of his employees. The former is made
responsible for failing to properly and diligently select and supervise
his erring employees. We do not — and have never — followed the
respondent superior rule.8 So, the American rulings cited by
petitioners, based as they are on said doctrine, are not authoritative
here.

In view of the foregoing, the motion for reconsideration is hereby

denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,

Sanchez and Castro, JJ., concur.