TORTS 48 On November 29, 1968, the plaintiff commenced this action for the recovery of damages arising from
On November 29, 1968, the plaintiff commenced this action for the recovery of damages arising from the partial collapse of the
G.R. No. L-47851 October 3, 1986
JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners,
vs.
THE COURT OF APPEALS, UNITED CONSTRUCTION COMPANY, INC., JUAN J. CARLOS, and the PHILIPPINE
BAR ASSOCIATION, respondents.
G.R. No. L-47863 October 3, 1986
THE UNITED CONSTRUCTION CO., INC., petitioner,
vs.
COURT OF APPEALS, ET AL., respondents.
G.R. No. L-47896 October 3, 1986
PHILIPPINE BAR ASSOCIATION, ET AL., petitioners,
vs.
COURT OF APPEALS, ET AL., respondents.
PARAS, J.:
These are petitions for review on certiorari of the November 28, 1977 decision of the Court of Appeals in CA-G.R. No. 51771-R
modifying the decision of the Court of First Instance of Manila, Branch V, in Civil Case No. 74958 dated September 21, 1971 as
modified by the Order of the lower court dated December 8, 1971. The Court of Appeals in modifying the decision of the lower
court included an award of an additional amount of P200,000.00 to the Philippine Bar Association to be paid jointly and
severally by the defendant United Construction Co. and by the third-party defendants Juan F. Nakpil and Sons and Juan F.
Nakpil.
The dispositive portion of the modified decision of the lower court reads:
WHEREFORE, judgment is hereby rendered:
(a) Ordering defendant United Construction Co., Inc. and third-party defendants (except Roman Ozaeta) to pay the plaintiff,
jointly and severally, the sum of P989,335.68 with interest at the legal rate from November 29, 1968, the date of the filing of
the complaint until full payment;
(b) Dismissing the complaint with respect to defendant Juan J. Carlos;
(c) Dismissing the third-party complaint;
(d) Dismissing the defendant's and third-party defendants' counterclaims for lack of merit;
(e) Ordering defendant United Construction Co., Inc. and third-party defendants (except Roman Ozaeta) to pay the costs in
equal shares.
SO ORDERED. (Record on Appeal p. 521; Rollo, L- 47851, p. 169).
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the judgment appealed from is modified to include an award of P200,000.00 in favor of plaintiff-appellant
Philippine Bar Association, with interest at the legal rate from November 29, 1968 until full payment to be paid jointly and
severally by defendant United Construction Co., Inc. and third party defendants (except Roman Ozaeta). In all other
respects, the judgment dated September 21, 1971 as modified in the December 8, 1971 Order of the lower court is hereby
affirmed with COSTS to be paid by the defendant and third party defendant (except Roman Ozaeta) in equal shares.
SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and United Construction Co., Inc. and Juan J. Carlos in L-47863 seek the reversal
of the decision of the Court of Appeals, among other things, for exoneration from liability while petitioner Philippine Bar
Association in L-47896 seeks the modification of aforesaid decision to obtain an award of P1,830,000.00 for the loss of the PBA
building plus four (4) times such amount as damages resulting in increased cost of the building, P100,000.00 as exemplary
damages; and P100,000.00 as attorney's fees.
These petitions arising from the same case filed in the Court of First Instance of Manila were consolidated by this Court in the
resolution of May 10, 1978 requiring the respective respondents to comment. (Rollo, L-47851, p. 172).
The facts as found by the lower court (Decision, C.C. No. 74958; Record on Appeal, pp. 269-348; pp. 520-521; Rollo, L-47851,
p. 169) and affirmed by the Court of Appeals are as follows:
The plaintiff, Philippine Bar Association, a civic-non-profit association, incorporated under the Corporation Law, decided to
construct an office building on its 840 square meters lot located at the comer of Aduana and Arzobispo Streets, Intramuros,
Manila. The construction was undertaken by the United Construction, Inc. on an "administration" basis, on the suggestion of
Juan J. Carlos, the president and general manager of said corporation. The proposal was approved by plaintiff's board of
directors and signed by its president Roman Ozaeta, a third-party defendant in this case. The plans and specifications for the
building were prepared by the other third-party defendants Juan F. Nakpil & Sons. The building was completed in June, 1966.
In the early morning of August 2, 1968 an unusually strong earthquake hit Manila and its environs and the building in question
sustained major damage. The front columns of the building buckled, causing the building to tilt forward dangerously. The
tenants vacated the building in view of its precarious condition. As a temporary remedial measure, the building was shored up by
United Construction, Inc. at the cost of P13,661.28.
Page 1 of 28 TORTS MEETING 5
building against United Construction, Inc. and its President and General Manager Juan J. Carlos as defendants. Plaintiff alleges
that the collapse of the building was accused by defects in the construction, the failure of the contractors to follow plans and
specifications and violations by the defendants of the terms of the contract.
Defendants in turn filed a third-party complaint against the architects who prepared the plans and specifications, alleging in
essence that the collapse of the building was due to the defects in the said plans and specifications. Roman Ozaeta, the then
president of the plaintiff Bar Association was included as a third-party defendant for damages for having included Juan J. Carlos,
President of the United Construction Co., Inc. as party defendant.
On March 3, 1969, the plaintiff and third-party defendants Juan F. Nakpil & Sons and Juan F. Nakpil presented a written
stipulation which reads:
1. That in relation to defendants' answer with counterclaims and third- party complaints and the third-party defendants
Nakpil & Sons' answer thereto, the plaintiff need not amend its complaint by including the said Juan F. Nakpil & Sons and
Juan F. Nakpil personally as parties defendant.
2. That in the event (unexpected by the undersigned) that the Court should find after the trial that the above-named
defendants Juan J. Carlos and United Construction Co., Inc. are free from any blame and liability for the collapse of the
PBA Building, and should further find that the collapse of said building was due to defects and/or inadequacy of the plans,
designs, and specifications p by the third-party defendants, or in the event that the Court may find Juan F. Nakpil and Sons
and/or Juan F. Nakpil contributorily negligent or in any way jointly and solidarily liable with the defendants, judgment may
be rendered in whole or in part. as the case may be, against Juan F. Nakpil & Sons and/or Juan F. Nakpil in favor of the
plaintiff to all intents and purposes as if plaintiff's complaint has been duly amended by including the said Juan F. Nakpil &
Sons and Juan F. Nakpil as parties defendant and by alleging causes of action against them including, among others, the
defects or inadequacy of the plans, designs, and specifications prepared by them and/or failure in the performance of their
contract with plaintiff.
3. Both parties hereby jointly petition this Honorable Court to approve this stipulation. (Record on Appeal, pp. 274-275;
Rollo, L-47851,p.169).
Upon the issues being joined, a pre-trial was conducted on March 7, 1969, during which among others, the parties agreed to refer
the technical issues involved in the case to a Commissioner. Mr. Andres O. Hizon, who was ultimately appointed by the trial
court, assumed his office as Commissioner, charged with the duty to try the following issues:
1. Whether the damage sustained by the PBA building during the August 2, 1968 earthquake had been caused, directly or
indirectly, by:
(a) The inadequacies or defects in the plans and specifications prepared by third-party defendants;
(b) The deviations, if any, made by the defendants from said plans and specifications and how said deviations contributed to
the damage sustained;
(c) The alleged failure of defendants to observe the requisite quality of materials and workmanship in the construction of the
building;
(d) The alleged failure to exercise the requisite degree of supervision expected of the architect, the contractor and/or the
owner of the building;
(e) An act of God or a fortuitous event; and
(f) Any other cause not herein above specified.
2. If the cause of the damage suffered by the building arose from a combination of the above-enumerated factors, the degree
or proportion in which each individual factor contributed to the damage sustained;
3. Whether the building is now a total loss and should be completely demolished or whether it may still be repaired and
restored to a tenantable condition. In the latter case, the determination of the cost of such restoration or repair, and the value
of any remaining construction, such as the foundation, which may still be utilized or availed of (Record on Appeal, pp. 275-
276; Rollo, L-47851, p. 169).
Thus, the issues of this case were divided into technical issues and non-technical issues. As aforestated the technical issues were
referred to the Commissioner. The non-technical issues were tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of the building on the ground that it may topple down in case of a strong
earthquake. The motions were opposed by the defendants and the matter was referred to the Commissioner. Finally, on April 30,
1979 the building was authorized to be demolished at the expense of the plaintiff, but not another earthquake of high intensity on
April 7, 1970 followed by other strong earthquakes on April 9, and 12, 1970, caused further damage to the property. The actual
demolition was undertaken by the buyer of the damaged building. (Record on Appeal, pp. 278-280; Ibid.)
After the protracted hearings, the Commissioner eventually submitted his report on September 25, 1970 with the findings that
while the damage sustained by the PBA building was caused directly by the August 2, 1968 earthquake whose magnitude was
estimated at 7.3 they were also caused by the defects in the plans and specifications prepared by the third-party defendants'
architects, deviations from said plans and specifications by the defendant contractors and failure of the latter to observe the
requisite workmanship in the construction of the building and of the contractors, architects and even the owners to exercise the
requisite degree of supervision in the construction of subject building.
All the parties registered their objections to aforesaid findings which in turn were answered by the Commissioner.
The trial court agreed with the findings of the Commissioner except as to the holding that the owner is charged with full nine
supervision of the construction. The Court sees no legal or contractual basis for such conclusion. (Record on Appeal, pp. 309-
328; Ibid).
Thus, on September 21, 1971, the lower court rendered the assailed decision which was modified by the Intermediate Appellate
Court on November 28, 1977.
All the parties herein appealed from the decision of the Intermediate Appellate Court. Hence, these petitions.
On May 11, 1978, the United Architects of the Philippines, the Association of Civil Engineers, and the Philippine Institute of
Architects filed with the Court a motion to intervene as amicus curiae. They proposed to present a position paper on the liability
of architects when a building collapses and to submit likewise a critical analysis with computations on the divergent views on the
design and plans as submitted by the experts procured by the parties. The motion having been granted, the amicus curiae were
granted a period of 60 days within which to submit their position.
After the parties had all filed their comments, We gave due course to the petitions in Our Resolution of July 21, 1978.
The position papers of the amicus curiae (submitted on November 24, 1978) were duly noted.
The amicus curiae gave the opinion that the plans and specifications of the Nakpils were not defective. But the Commissioner,
when asked by Us to comment, reiterated his conclusion that the defects in the plans and specifications indeed existed.
Using the same authorities availed of by the amicus curiae such as the Manila Code (Ord. No. 4131) and the 1966 Asep Code,
the Commissioner added that even if it can be proved that the defects in the constructionalone (and not in the plans and design)
caused the damage to the building, still the deficiency in the original design and jack of specific provisions against torsion in the
original plans and the overload on the ground floor columns (found by an the experts including the original designer) certainly
contributed to the damage which occurred. (Ibid, p. 174).
In their respective briefs petitioners, among others, raised the following assignments of errors: Philippine Bar Association
claimed that the measure of damages should not be limited to P1,100,000.00 as estimated cost of repairs or to the period of six
(6) months for loss of rentals while United Construction Co., Inc. and the Nakpils claimed that it was an act of God that caused
the failure of the building which should exempt them from responsibility and not the defective construction, poor workmanship,
deviations from plans and specifications and other imperfections in the case of United Construction Co., Inc. or the deficiencies
in the design, plans and specifications prepared by petitioners in the case of the Nakpils. Both UCCI and the Nakpils object to
the payment of the additional amount of P200,000.00 imposed by the Court of Appeals. UCCI also claimed that it should be
reimbursed the expenses of shoring the building in the amount of P13,661.28 while the Nakpils opposed the payment of damages
jointly and solidarity with UCCI.
The pivotal issue in this case is whether or not an act of God-an unusually strong earthquake-which caused the failure of the
building, exempts from liability, parties who are otherwise liable because of their negligence.
The applicable law governing the rights and liabilities of the parties herein is Article 1723 of the New Civil Code, which
provides:
Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable for damages if within
fifteen years from the completion of the structure the same should collapse by reason of a defect in those plans and
specifications, or due to the defects in the ground. The contractor is likewise responsible for the damage if the edifice fags
within the same period on account of defects in the construction or the use of materials of inferior quality furnished by him,
or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be
solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply waiver of any of the causes of action by reason of any defect
mentioned in the preceding paragraph.
The action must be brought within ten years following the collapse of the building.
On the other hand, the general rule is that no person shall be responsible for events which could not be foreseen or which though
foreseen, were inevitable (Article 1174, New Civil Code).
An act of God has been defined as an accident, due directly and exclusively to natural causes without human intervention, which
by no amount of foresight, pains or care, reasonably to have been expected, could have been prevented. (1 Corpus Juris 1174).
There is no dispute that the earthquake of August 2, 1968 is a fortuitous event or an act of God.
To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation due to an "act of God,"
the following must concur: (a) the cause of the breach of the obligation must be independent of the will of the debtor; (b) the
event must be either unforseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the
creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39
SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or
violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which
results in loss or damage, the obligor cannot escape liability.
Page 2 of 28 TORTS MEETING 5
The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the
violence of nature and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the
effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from
active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the
rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not
exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for
loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may
have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v.
Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the third-party defendants petitioners was established beyond dispute both in the lower
court and in the Intermediate Appellate Court. Defendant United Construction Co., Inc. was found to have made substantial
deviations from the plans and specifications. and to have failed to observe the requisite workmanship in the construction as well
as to exercise the requisite degree of supervision; while the third-party defendants were found to have inadequacies or defects in
the plans and specifications prepared by them. As correctly assessed by both courts, the defects in the construction and in the
plans and specifications were the proximate causes that rendered the PBA building unable to withstand the earthquake of August
2, 1968. For this reason the defendant and third-party defendants cannot claim exemption from liability. (Decision, Court of
Appeals, pp. 30-31).
It is well settled that the findings of facts of the Court of Appeals are conclusive on the parties and on this court (cases cited in
Tolentino vs. de Jesus, 56 SCRA 67; Cesar vs. Sandiganbayan, January 17, 1985, 134 SCRA 105, 121), unless (1) the
conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken;
(3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the findings of fact are
conflicting , (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both
appellant and appellees (Ramos vs. Pepsi-Cola Bottling Co., February 8, 1967, 19 SCRA 289, 291-292; Roque vs. Buan, Oct.
31, 1967, 21 SCRA 648, 651); (7) the findings of facts of the Court of Appeals are contrary to those of the trial court; (8) said
findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed by the respondents (Garcia vs. CA, June 30, 1970, 33
SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA 322, 366); (10) the finding of fact of the Court of Appeals
is premised on the supposed absence of evidence and is contradicted by evidence on record (Salazar vs. Gutierrez, May 29,
1970, 33 SCRA 243, 247; Cited in G.R. No. 66497-98, Sacay v. Sandiganbayan, July 10, 1986).
It is evident that the case at bar does not fall under any of the exceptions above-mentioned. On the contrary, the records show
that the lower court spared no effort in arriving at the correct appreciation of facts by the referral of technical issues to a
Commissioner chosen by the parties whose findings and conclusions remained convincingly unrebutted by the
intervenors/amicus curiae who were allowed to intervene in the Supreme Court.
In any event, the relevant and logical observations of the trial court as affirmed by the Court of Appeals that "while it is not
possible to state with certainty that the building would not have collapsed were those defects not present, the fact remains that
several buildings in the same area withstood the earthquake to which the building of the plaintiff was similarly subjected,"
cannot be ignored.
The next issue to be resolved is the amount of damages to be awarded to the PBA for the partial collapse (and eventual complete
collapse) of its building.
The Court of Appeals affirmed the finding of the trial court based on the report of the Commissioner that the total amount
required to repair the PBA building and to restore it to tenantable condition was P900,000.00 inasmuch as it was not initially a
total loss. However, while the trial court awarded the PBA said amount as damages, plus unrealized rental income for one-half
year, the Court of Appeals modified the amount by awarding in favor of PBA an additional sum of P200,000.00 representing the
damage suffered by the PBA building as a result of another earthquake that occurred on April 7, 1970 (L-47896, Vol. I, p. 92).
The PBA in its brief insists that the proper award should be P1,830,000.00 representing the total value of the building (L-47896,
PBA's No. 1 Assignment of Error, p. 19), while both the NAKPILS and UNITED question the additional award of P200,000.00
in favor of the PBA (L- 47851, NAKPIL's Brief as Petitioner, p. 6, UNITED's Brief as Petitioner, p. 25). The PBA further urges
that the unrealized rental income awarded to it should not be limited to a period of one-half year but should be computed on a
continuing basis at the rate of P178,671.76 a year until the judgment for the principal amount shall have been satisfied L- 47896,
PBA's No. 11 Assignment of Errors, p. 19).
The collapse of the PBA building as a result of the August 2, 1968 earthquake was only partial and it is undisputed that the
building could then still be repaired and restored to its tenantable condition. The PBA, however, in view of its lack of needed
funding, was unable, thru no fault of its own, to have the building repaired. UNITED, on the other hand, spent P13,661.28 to
shore up the building after the August 2, 1968 earthquake (L-47896, CA Decision, p. 46). Because of the earthquake on April 7,
1970, the trial court after the needed consultations, authorized the total demolition of the building (L-47896, Vol. 1, pp. 53-54).
There should be no question that the NAKPILS and UNITED are liable for the damage resulting from the partial and eventual
collapse of the PBA building as a result of the earthquakes.
We quote with approval the following from the erudite decision penned by Justice Hugo E. Gutierrez (now an Associate Justice
of the Supreme Court) while still an Associate Justice of the Court of Appeals:
There is no question that an earthquake and other forces of nature such as cyclones, drought, floods, lightning, and perils of
the sea are acts of God. It does not necessarily follow, however, that specific losses and suffering resulting from the
occurrence of these natural force are also acts of God. We are not convinced on the basis of the evidence on record that from
the thousands of structures in Manila, God singled out the blameless PBA building in Intramuros and around six or seven
other buildings in various parts of the city for collapse or severe damage and that God alone was responsible for the
damages and losses thus suffered.
The record is replete with evidence of defects and deficiencies in the designs and plans, defective construction, poor
workmanship, deviation from plans and specifications and other imperfections. These deficiencies are attributable to
negligent men and not to a perfect God.
The act-of-God arguments of the defendants- appellants and third party defendants-appellants presented in their briefs are
premised on legal generalizations or speculations and on theological fatalism both of which ignore the plain facts. The
lengthy discussion of United on ordinary earthquakes and unusually strong earthquakes and on ordinary fortuitous events
and extraordinary fortuitous events leads to its argument that the August 2, 1968 earthquake was of such an overwhelming
and destructive character that by its own force and independent of the particular negligence alleged, the injury would have
been produced. If we follow this line of speculative reasoning, we will be forced to conclude that under such a situation
scores of buildings in the vicinity and in other parts of Manila would have toppled down. Following the same line of
reasoning, Nakpil and Sons alleges that the designs were adequate in accordance with pre-August 2, 1968 knowledge and
appear inadequate only in the light of engineering information acquired after the earthquake. If this were so, hundreds of
ancient buildings which survived the earthquake better than the two-year old PBA building must have been designed and
constructed by architects and contractors whose knowledge and foresight were unexplainably auspicious and prophetic.
Fortunately, the facts on record allow a more down to earth explanation of the collapse. The failure of the PBA building, as
a unique and distinct construction with no reference or comparison to other buildings, to weather the severe earthquake
forces was traced to design deficiencies and defective construction, factors which are neither mysterious nor esoteric. The
theological allusion of appellant United that God acts in mysterious ways His wonders to perform impresses us to be
inappropriate. The evidence reveals defects and deficiencies in design and construction. There is no mystery about these acts
of negligence. The collapse of the PBA building was no wonder performed by God. It was a result of the imperfections in
the work of the architects and the people in the construction company. More relevant to our mind is the lesson from the
parable of the wise man in the Sermon on the Mount "which built his house upon a rock; and the rain descended and the
floods came and the winds blew and beat upon that house; and it fen not; for it was founded upon a rock" and of the "foolish
upon the sand. And the rain descended and man which built his house the floods came, and the winds blew, and beat upon
that house; and it fell and great was the fall of it. (St. Matthew 7: 24-27)." The requirement that a building should withstand
rains, floods, winds, earthquakes, and natural forces is precisely the reason why we have professional experts like architects,
and engineers. Designs and constructions vary under varying circumstances and conditions but the requirement to design
and build well does not change.
The findings of the lower Court on the cause of the collapse are more rational and accurate. Instead of laying the blame
solely on the motions and forces generated by the earthquake, it also examined the ability of the PBA building, as designed
and constructed, to withstand and successfully weather those forces.
The evidence sufficiently supports a conclusion that the negligence and fault of both United and Nakpil and Sons, not a
mysterious act of an inscrutable God, were responsible for the damages. The Report of the Commissioner, Plaintiff's
Objections to the Report, Third Party Defendants' Objections to the Report, Defendants' Objections to the Report,
Commissioner's Answer to the various Objections, Plaintiffs' Reply to the Commissioner's Answer, Defendants' Reply to the
Commissioner's Answer, Counter-Reply to Defendants' Reply, and Third-Party Defendants' Reply to the Commissioner's
Report not to mention the exhibits and the testimonies show that the main arguments raised on appeal were already raised
during the trial and fully considered by the lower Court. A reiteration of these same arguments on appeal fails to convince us
that we should reverse or disturb the lower Court's factual findings and its conclusions drawn from the facts, among them:
The Commissioner also found merit in the allegations of the defendants as to the physical evidence before and after the
earthquake showing the inadequacy of design, to wit:
Physical evidence before the earthquake providing (sic) inadequacy of design;
1. inadequate design was the cause of the failure of the building.
2. Sun-baffles on the two sides and in front of the building;
a. Increase the inertia forces that move the building laterally toward the Manila Fire Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down spout on all exterior columns reduces the cross-sectional area of each of the
columns and the strength thereof.
4. Two front corners, A7 and D7 columns were very much less reinforced.
Physical Evidence After the Earthquake, Proving Inadequacy of design;
Page 3 of 28 TORTS MEETING 5
1. Column A7 suffered the severest fracture and maximum sagging. Also D7.
2. There are more damages in the front part of the building than towards the rear, not only in columns but also in slabs.
3. Building leaned and sagged more on the front part of the building.
4. Floors showed maximum sagging on the sides and toward the front corner parts of the building.
5. There was a lateral displacement of the building of about 8", Maximum sagging occurs at the column A7 where the floor
is lower by 80 cm. than the highest slab level.
6. Slab at the corner column D7 sagged by 38 cm.
The Commissioner concluded that there were deficiencies or defects in the design, plans and specifications of the PBA
building which involved appreciable risks with respect to the accidental forces which may result from earthquake shocks.
He conceded, however, that the fact that those deficiencies or defects may have arisen from an obsolete or not too
conservative code or even a code that does not require a design for earthquake forces mitigates in a large measure the
responsibility or liability of the architect and engineer designer.
The Third-party defendants, who are the most concerned with this portion of the Commissioner's report, voiced opposition
to the same on the grounds that (a) the finding is based on a basic erroneous conception as to the design concept of the
building, to wit, that the design is essentially that of a heavy rectangular box on stilts with shear wan at one end; (b) the
finding that there were defects and a deficiency in the design of the building would at best be based on an approximation
and, therefore, rightly belonged to the realm of speculation, rather than of certainty and could very possibly be outright
error; (c) the Commissioner has failed to back up or support his finding with extensive, complex and highly specialized
computations and analyzes which he himself emphasizes are necessary in the determination of such a highly technical
question; and (d) the Commissioner has analyzed the design of the PBA building not in the light of existing and available
earthquake engineering knowledge at the time of the preparation of the design, but in the light of recent and current
standards.
The Commissioner answered the said objections alleging that third-party defendants' objections were based on estimates or
exhibits not presented during the hearing that the resort to engineering references posterior to the date of the preparation of
the plans was induced by the third-party defendants themselves who submitted computations of the third-party defendants
are erroneous.
The issue presently considered is admittedly a technical one of the highest degree. It involves questions not within the
ordinary competence of the bench and the bar to resolve by themselves. Counsel for the third-party defendants has aptly
remarked that "engineering, although dealing in mathematics, is not an exact science and that the present knowledge as to
the nature of earthquakes and the behaviour of forces generated by them still leaves much to be desired; so much so "that the
experts of the different parties, who are all engineers, cannot agree on what equation to use, as to what earthquake co-
efficients are, on the codes to be used and even as to the type of structure that the PBA building (is) was (p. 29, Memo, of
third- party defendants before the Commissioner).
The difficulty expected by the Court if tills technical matter were to be tried and inquired into by the Court itself, coupled
with the intrinsic nature of the questions involved therein, constituted the reason for the reference of the said issues to a
Commissioner whose qualifications and experience have eminently qualified him for the task, and whose competence had
not been questioned by the parties until he submitted his report. Within the pardonable limit of the Court's ability to
comprehend the meaning of the Commissioner's report on this issue, and the objections voiced to the same, the Court sees
no compelling reasons to disturb the findings of the Commissioner that there were defects and deficiencies in the design,
plans and specifications prepared by third-party defendants, and that said defects and deficiencies involved appreciable risks
with respect to the accidental forces which may result from earthquake shocks.
(2) (a) The deviations, if any, made by the defendants from the plans and specifications, and how said deviations contributed
to the damage sustained by the building.
(b) The alleged failure of defendants to observe the requisite quality of materials and workmanship in the construction of the
building.
These two issues, being interrelated with each other, will be discussed together.
The findings of the Commissioner on these issues were as follows:
We now turn to the construction of the PBA Building and the alleged deficiencies or defects in the construction and
violations or deviations from the plans and specifications. All these may be summarized as follows:
a. Summary of alleged defects as reported by Engineer Mario M. Bundalian.
(1) Wrongful and defective placing of reinforcing bars.
(2) Absence of effective and desirable integration of the 3 bars in the cluster.
(3) Oversize coarse aggregates: 1-1/4 to 2" were used. Specification requires no larger than 1 inch.
(4) Reinforcement assembly is not concentric with the column, eccentricity being 3" off when on one face the main bars are
only 1 1/2' from the surface.
(5) Prevalence of honeycombs,
(6) Contraband construction joints,
(7) Absence, or omission, or over spacing of spiral hoops,
(8) Deliberate severance of spirals into semi-circles in noted on Col. A-5, ground floor,
(9) Defective construction joints in Columns A-3, C-7, D-7 and D-4, ground floor,
(10) Undergraduate concrete is evident,
(11) Big cavity in core of Column 2A-4, second floor,
(12) Columns buckled at different planes. Columns buckled worst where there are no spirals or where spirals are cut.
Columns suffered worst displacement where the eccentricity of the columnar reinforcement assembly is more acute.
b. Summary of alleged defects as reported by Engr. Antonio Avecilla.
Columns are first (or ground) floor, unless otherwise stated.
(1) Column D4 — Spacing of spiral is changed from 2" to 5" on centers,
(2) Column D5 — No spiral up to a height of 22" from the ground floor,
(3) Column D6 — Spacing of spiral over 4 l/2,
(4) Column D7 — Lack of lateral ties,
(5) Column C7 — Absence of spiral to a height of 20" from the ground level, Spirals are at 2" from the exterior column face
and 6" from the inner column face,
(6) Column B6 — Lack of spiral on 2 feet below the floor beams,
(7) Column B5 — Lack of spirals at a distance of 26' below the beam,
(8) Column B7 — Spirals not tied to vertical reinforcing bars, Spirals are uneven 2" to 4",
(9) Column A3 — Lack of lateral ties,
(10) Column A4 — Spirals cut off and welded to two separate clustered vertical bars,
(11) Column A4 — (second floor Column is completely hollow to a height of 30"
(12) Column A5 — Spirals were cut from the floor level to the bottom of the spandrel beam to a height of 6 feet,
(13) Column A6 — No spirals up to a height of 30' above the ground floor level,
(14) Column A7— Lack of lateralties or spirals,
c. Summary of alleged defects as reported by the experts of the Third-Party defendants.
Ground floor columns.
(1) Column A4 — Spirals are cut,
(2) Column A5 — Spirals are cut,
(3) Column A6 — At lower 18" spirals are absent,
(4) Column A7 — Ties are too far apart,
(5) Column B5 — At upper fourth of column spirals are either absent or improperly spliced,
(6) Column B6 — At upper 2 feet spirals are absent,
(7) Column B7 — At upper fourth of column spirals missing or improperly spliced.
(8) Column C7— Spirals are absent at lowest 18"
(9) Column D5 — At lowest 2 feet spirals are absent,
(10) Column D6 — Spirals are too far apart and apparently improperly spliced,
(11) Column D7 — Lateral ties are too far apart, spaced 16" on centers.
There is merit in many of these allegations. The explanations given by the engineering experts for the defendants are either
contrary to general principles of engineering design for reinforced concrete or not applicable to the requirements for
ductility and strength of reinforced concrete in earthquake-resistant design and construction.
We shall first classify and consider defects which may have appreciable bearing or relation to' the earthquake-resistant
property of the building.
As heretofore mentioned, details which insure ductility at or near the connections between columns and girders are desirable
in earthquake resistant design and construction. The omission of spirals and ties or hoops at the bottom and/or tops of
columns contributed greatly to the loss of earthquake-resistant strength. The plans and specifications required that these
spirals and ties be carried from the floor level to the bottom reinforcement of the deeper beam (p. 1, Specifications, p. 970,
Reference 11). There were several clear evidences where this was not done especially in some of the ground floor columns
which failed.
There were also unmistakable evidences that the spacings of the spirals and ties in the columns were in many cases greater
than those called for in the plans and specifications resulting again in loss of earthquake-resistant strength. The assertion of
the engineering experts for the defendants that the improper spacings and the cutting of the spirals did not result in loss of
strength in the column cannot be maintained and is certainly contrary to the general principles of column design and
construction. And even granting that there be no loss in strength at the yield point (an assumption which is very doubtful)
the cutting or improper spacings of spirals will certainly result in the loss of the plastic range or ductility in the column and
it is precisely this plastic range or ductility which is desirable and needed for earthquake-resistant strength.
There is no excuse for the cavity or hollow portion in the column A4, second floor, and although this column did not fail,
this is certainly an evidence on the part of the contractor of poor construction.
The effect of eccentricities in the columns which were measured at about 2 1/2 inches maximum may be approximated in
relation to column loads and column and beam moments. The main effect of eccentricity is to change the beam or girder
Page 4 of 28 TORTS MEETING 5
span. The effect on the measured eccentricity of 2 inches, therefore, is to increase or diminish the column load by a
maximum of about 1% and to increase or diminish the column or beam movements by about a maximum of 2%. While
these can certainly be absorbed within the factor of safety, they nevertheless diminish said factor of safety.
The cutting of the spirals in column A5, ground floor is the subject of great contention between the parties and deserves
special consideration.
The proper placing of the main reinforcements and spirals in column A5, ground floor, is the responsibility of the general
contractor which is the UCCI. The burden of proof, therefore, that this cutting was done by others is upon the defendants.
Other than a strong allegation and assertion that it is the plumber or his men who may have done the cutting (and this was
flatly denied by the plumber) no conclusive proof was presented. The engineering experts for the defendants asserted that
they could have no motivation for cutting the bar because they can simply replace the spirals by wrapping around a new set
of spirals. This is not quite correct. There is evidence to show that the pouring of concrete for columns was sometimes done
through the beam and girder reinforcements which were already in place as in the case of column A4 second floor. If the
reinforcement for the girder and column is to subsequently wrap around the spirals, this would not do for the elasticity of
steel would prevent the making of tight column spirals and loose or improper spirals would result. The proper way is to
produce correct spirals down from the top of the main column bars, a procedure which can not be done if either the beam or
girder reinforcement is already in place. The engineering experts for the defendants strongly assert and apparently believe
that the cutting of the spirals did not materially diminish the strength of the column. This belief together with the difficulty
of slipping the spirals on the top of the column once the beam reinforcement is in place may be a sufficient motivation for
the cutting of the spirals themselves. The defendants, therefore, should be held responsible for the consequences arising
from the loss of strength or ductility in column A5 which may have contributed to the damages sustained by the building.
The lack of proper length of splicing of spirals was also proven in the visible spirals of the columns where spalling of the
concrete cover had taken place. This lack of proper splicing contributed in a small measure to the loss of strength.
The effects of all the other proven and visible defects although nor can certainly be accumulated so that they can contribute
to an appreciable loss in earthquake-resistant strength. The engineering experts for the defendants submitted an estimate on
some of these defects in the amount of a few percent. If accumulated, therefore, including the effect of eccentricity in the
column the loss in strength due to these minor defects may run to as much as ten percent.
To recapitulate: the omission or lack of spirals and ties at the bottom and/or at the top of some of the ground floor columns
contributed greatly to the collapse of the PBA building since it is at these points where the greater part of the failure
occurred. The liability for the cutting of the spirals in column A5, ground floor, in the considered opinion of the
Commissioner rests on the shoulders of the defendants and the loss of strength in this column contributed to the damage
which occurred.
It is reasonable to conclude, therefore, that the proven defects, deficiencies and violations of the plans and specifications of
the PBA building contributed to the damages which resulted during the earthquake of August 2, 1968 and the vice of these
defects and deficiencies is that they not only increase but also aggravate the weakness mentioned in the design of the
structure. In other words, these defects and deficiencies not only tend to add but also to multiply the effects of the
shortcomings in the design of the building. We may say, therefore, that the defects and deficiencies in the construction
contributed greatly to the damage which occurred.
Since the execution and supervision of the construction work in the hands of the contractor is direct and positive, the
presence of existence of all the major defects and deficiencies noted and proven manifests an element of negligence which
may amount to imprudence in the construction work. (pp. 42-49, Commissioners Report).
As the parties most directly concerned with this portion of the Commissioner's report, the defendants voiced their objections to
the same on the grounds that the Commissioner should have specified the defects found by him to be "meritorious"; that the
Commissioner failed to indicate the number of cases where the spirals and ties were not carried from the floor level to the
bottom reinforcement of the deeper beam, or where the spacing of the spirals and ties in the columns were greater than that
called for in the specifications; that the hollow in column A4, second floor, the eccentricities in the columns, the lack of proper
length of splicing of spirals, and the cut in the spirals in column A5, ground floor, did not aggravate or contribute to the damage
suffered by the building; that the defects in the construction were within the tolerable margin of safety; and that the cutting of the
spirals in column A5, ground floor, was done by the plumber or his men, and not by the defendants.
Answering the said objections, the Commissioner stated that, since many of the defects were minor only the totality of the
defects was considered. As regards the objection as to failure to state the number of cases where the spirals and ties were not
carried from the floor level to the bottom reinforcement, the Commissioner specified groundfloor columns B-6 and C-5 the first
one without spirals for 03 inches at the top, and in the latter, there were no spirals for 10 inches at the bottom. The Commissioner
likewise specified the first storey columns where the spacings were greater than that called for in the specifications to be
columns B-5, B-6, C-7, C-6, C-5, D-5 and B-7. The objection to the failure of the Commissioner to specify the number of
columns where there was lack of proper length of splicing of spirals, the Commissioner mentioned groundfloor columns B-6 and
B-5 where all the splices were less than 1-1/2 turns and were not welded, resulting in some loss of strength which could be
critical near the ends of the columns. He answered the supposition of the defendants that the spirals and the ties must have been
looted, by calling attention to the fact that the missing spirals and ties were only in two out of the 25 columns, which rendered
said supposition to be improbable.
The Commissioner conceded that the hollow in column A-4, second floor, did not aggravate or contribute to the damage, but
averred that it is "evidence of poor construction." On the claim that the eccentricity could be absorbed within the factor of safety,
the Commissioner answered that, while the same may be true, it also contributed to or aggravated the damage suffered by the
building.
The objection regarding the cutting of the spirals in Column A-5, groundfloor, was answered by the Commissioner by reiterating
the observation in his report that irrespective of who did the cutting of the spirals, the defendants should be held liable for the
same as the general contractor of the building. The Commissioner further stated that the loss of strength of the cut spirals and
inelastic deflections of the supposed lattice work defeated the purpose of the spiral containment in the column and resulted in the
loss of strength, as evidenced by the actual failure of this column.
Again, the Court concurs in the findings of the Commissioner on these issues and fails to find any sufficient cause to disregard or
modify the same. As found by the Commissioner, the "deviations made by the defendants from the plans and specifications
caused indirectly the damage sustained and that those deviations not only added but also aggravated the damage caused by the
defects in the plans and specifications prepared by third-party defendants. (Rollo, Vol. I, pp. 128-142)
The afore-mentioned facts clearly indicate the wanton negligence of both the defendant and the third-party defendants in
effecting the plans, designs, specifications, and construction of the PBA building and We hold such negligence as equivalent
to bad faith in the performance of their respective tasks.
Relative thereto, the ruling of the Supreme Court in Tucker v. Milan (49 O.G. 4379, 4380) which may be in point in this case
reads:
One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof,
although the act of a third person, or an act of God for which he is not responsible, intervenes to precipitate the loss.
As already discussed, the destruction was not purely an act of God. Truth to tell hundreds of ancient buildings in the vicinity
were hardly affected by the earthquake. Only one thing spells out the fatal difference; gross negligence and evident bad faith,
without which the damage would not have occurred.
WHEREFORE, the decision appealed from is hereby MODIFIED and considering the special and environmental circumstances
of this case, We deem it reasonable to render a decision imposing, as We do hereby impose, upon the defendant and the third-
party defendants (with the exception of Roman Ozaeta) a solidary (Art. 1723, Civil Code, Supra, p. 10) indemnity in favor of the
Philippine Bar Association of FIVE MILLION (P5,000,000.00) Pesos to cover all damages (with the exception of attorney's
fees) occasioned by the loss of the building (including interest charges and lost rentals) and an additional ONE HUNDRED
THOUSAND (P100,000.00) Pesos as and for attorney's fees, the total sum being payable upon the finality of this decision. Upon
failure to pay on such finality, twelve (12%) per cent interest per annum shall be imposed upon afore-mentioned amounts from
finality until paid. Solidary costs against the defendant and third-party defendants (except Roman Ozaeta).
SO ORDERED.

Page 5 of 28 TORTS MEETING 5

TORTS 49
G.R. No. 165732 December 14, 2006
SAFEGUARD SECURITY AGENCY, INC., and ADMER PAJARILLO, petitioners,
vs.
LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO TANGCO, VON LARRIE TANGCO,
VIEN LARI TANGCO and VIVIEN LAURIZ TANGCO, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc. (Safeguard) and Admer Pajarillo
(Pajarillo) assailing the Decision1 dated July 16, 2004 and the Resolution2 dated October 20, 2004 issued by the Court of
Appeals (CA) in CA-G.R. CV No. 77462.
On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology Bank, Katipunan Branch, Quezon
City, to renew her time deposit per advise of the bank's cashier as she would sign a specimen card. Evangeline, a duly licensed
firearm holder with corresponding permit to carry the same outside her residence, approached security guard Pajarillo, who was
stationed outside the bank, and pulled out her firearm from her bag to deposit the same for safekeeping. Suddenly, Pajarillo shot
Evangeline with his service shotgun hitting her in the abdomen instantly causing her death.
Lauro Tangco, Evangeline's husband, together with his six minor children (respondents) filed with the Regional Trial Court
(RTC) of Quezon City, a criminal case of Homicide against Pajarillo, docketed as Criminal Case No. 0-97-73806 and assigned
to Branch 78. Respondents reserved their right to file a separate civil action in the said criminal case. The RTC of Quezon City
subsequently convicted Pajarillo of Homicide in its Decision dated January 19, 2000. 3 On appeal to the CA, the RTC decision
was affirmed with modification as to the penalty in a Decision 4 dated July 31, 2000. Entry of Judgment was made on August 25,
2001.
Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a complaint 5 for damages against
Pajarillo for negligently shooting Evangeline and against Safeguard for failing to observe the diligence of a good father of a
family to prevent the damage committed by its security guard. Respondents prayed for actual, moral and exemplary damages and
attorney's fees.
In their Answer,6 petitioners denied the material allegations in the complaint and alleged that Safeguard exercised the diligence
of a good father of a family in the selection and supervision of Pajarillo; that Evangeline's death was not due to Pajarillo's
negligence as the latter acted only in self-defense. Petitioners set up a compulsory counterclaim for moral damages and attorney's
fees.
Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision, 7 the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline Tangco, and against
defendants Admer Pajarillo and Safeguard Security Agency, Inc. ordering said defendants to pay the plaintiffs, jointly and
severally, the following:
1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS (P157,430.00), as actual
damages
2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral damages;
4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and
6. costs of suit.
For lack of merit, defendants' counterclaim is hereby DISMISSED.
SO ORDERED. 8
The RTC found respondents to be entitled to damages. It rejected Pajarillo's claim that he merely acted in self-defense. It gave no
credence to Pajarillo's bare claim that Evangeline was seen roaming around the area prior to the shooting incident since Pajarillo
had not made such report to the head office and the police authorities. The RTC further ruled that being the guard on duty, the
situation demanded that he should have exercised proper prudence and necessary care by asking Evangeline for him to ascertain
the matter instead of shooting her instantly; that Pajarillo had already been convicted of Homicide in Criminal Case No. 0-97-
73806; and that he also failed to proffer proof negating liability in the instant case.
The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable with Pajarillo. It ruled that while it may
be conceded that Safeguard had perhaps exercised care in the selection of its employees, particularly of Pajarillo, there was no
sufficient evidence to show that Safeguard exercised the diligence of a good father of a family in the supervision of its employee;
that Safeguard's evidence simply showed that it required its guards to attend trainings and seminars which is not the supervision
contemplated under the law; that supervision includes not only the issuance of regulations and instructions designed for the
protection of persons and property, for the guidance of their servants and employees, but also the duty to see to it that such
regulations and instructions are faithfully complied with.
Page 6 of 28 TORTS MEETING 5
Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed Decision, the dispositive portion
of which reads:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the modification that Safeguard
Security Agency, Inc.'s civil liability in this case is only subsidiary under Art. 103 of the Revised Penal Code. No
pronouncement as to costs.9
In finding that Safeguard is only subsidiarily liable, the CA held that the applicable provisions are not Article 2180 in relation to
Article 2176 of the Civil Code, on quasi-delicts, but the provisions on civil liability arising from felonies under the Revised
Penal Code; that since Pajarillo had been found guilty of Homicide in a final and executory judgment and is said to be serving
sentence in Muntinlupa, he must be adjudged civilly liable under the provisions of Article 100 of the Revised Penal Code since
the civil liability recoverable in the criminal action is one solely dependent upon conviction, because said liability arises from the
offense charged and no other; that this is also the civil liability that is deemed extinguished with the extinction of the penal
liability with a pronouncement that the fact from which the civil action might proceed does not exist; that unlike in civil liability
arising from quasi-delict, the defense of diligence of a good father of a family in the employment and supervision of employees
is inapplicable and irrelevant in civil liabilities based on crimes or ex-delicto; that Article 103 of the Revised Penal Code
provides that the liability of an employer for the civil liability of their employees is only subsidiary, not joint or solidary.
Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution dated October 20, 2004.
Hence, the instant Petition for Review on Certiorari with the following assignment of errors, to wit:
The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable to respondents for the payment of
damages and other money claims.
The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised Penal Code in holding petitioner
Safeguard solidarily [sic] liable with petitioner Pajarillo for the payment of damages and other money claims.
The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard Security Agency, Inc. exercised
due diligence in the selection and supervision of its employees, hence, should be excused from any liability. 10
The issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting Evangeline; and (2) Safeguard should be
held solidarily liable for the damages awarded to respondents.
Safeguard insists that the claim for damages by respondents is based on culpa aquiliana under Article 217611 of the Civil Code,
in which case, its liability is jointly and severally with Pajarillo. However, since it has established that it had exercised due
diligence in the selection and supervision of Pajarillo, it should be exonerated from civil liability.
We will first resolve whether the CA correctly held that respondents, in filing a separate civil action against petitioners are
limited to the recovery of damages arising from a crime or delict, in which case the liability of Safeguard as employer under
Articles 102 and 103 of the Revised Penal Code12 is subsidiary and the defense of due diligence in the selection and supervision
of employee is not available to it.
The CA erred in ruling that the liability of Safeguard is only subsidiary.
The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on Criminal Procedure, as amended, to
wit:
SECTION 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery
of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his
right to institute it separately, or institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34, and
2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.
Respondents reserved the right to file a separate civil action and in fact filed the same on January 14, 1998.
The CA found that the source of damages in the instant case must be the crime of homicide, for which he had already been found
guilty of and serving sentence thereof, thus must be governed by the Revised Penal Code.
We do not agree.
An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1)
civil liability ex delicto, under Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not
arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article
31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or
(b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33
of the Civil Code. Either of these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the
Civil Code that the offended party cannot recover damages twice for the same act or omission or under both causes.13
It is important to determine the nature of respondents' cause of action. The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action.14 The purpose of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its
allegations and prayer for relief.15
The pertinent portions of the complaint read:
 7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ecology Bank – Katipunan Branch, Quezon
City, who was employed and under employment of Safeguard Security Agency, Inc. hence there is employer-employee
relationship between co-defendants.
The Safeguard Security Agency, Inc. failed to observe the diligence of a good father of a family to prevent damage to herein
plaintiffs.
8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm out of her bag, suddenly
without exercising necessary caution/care, and in idiotic manner, with the use of his shotgun, fired and burst bullets upon
Evangeline M. Tangco, killing her instantly. x x x
xxxx
16. That defendants, being employer and the employee are jointly and severally liable for the death of Evangeline M.
Tangco.16
Thus, a reading of respondents' complaint shows that the latter are invoking their right to recover damages against Safeguard for
their vicarious responsibility for the injury caused by Pajarillo's act of shooting and killing Evangeline under Article 2176, Civil
Code which provides:
ARTICLE 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called a
quasi-delict and is governed by the provisions of this Chapter.
The scope of Article 2176 is not limited to acts or omissions resulting from negligence. In Dulay v. Court of Appeals,17 we held:
x x x Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also acts which
are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already
held that:
"x x x Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that
the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as quasi-delict
only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa
aquiliana includes voluntary and negligent acts which may be punishable by law." (Emphasis supplied)
The civil action filed by respondents was not derived from the criminal liability of Pajarillo in the criminal case but one based
on culpa aquiliana or quasi-delict which is separate and distinct from the civil liability arising from crime. 18 The source of the
obligation sought to be enforced in the civil case is a quasi-delict not an act or omission punishable by law.
In Bermudez v. Melencio-Herrera,19 where the issue involved was whether the civil action filed by plaintiff-appellants is founded
on crime or on quasi-delict, we held:
x x x The trial court treated the case as an action based on a crime in view of the reservation made by the offended party in
the criminal case (Criminal Case No. 92944), also pending before the court, to file a separate civil action. Said the trial
court:
It would appear that plaintiffs instituted this action on the assumption that defendant Pontino's negligence in the accident of
May 10, 1969 constituted a quasi-delict. The Court cannot accept the validity of that assumption. In Criminal Case No.
92944 of this Court, plaintiffs had already appeared as complainants. While that case was pending, the offended parties
reserved the right to institute a separate civil action. If, in a criminal case, the right to file a separate civil action for damages
is reserved, such civil action is to be based on crime and not on tort. That was the ruling in Joaquin vs. Aniceto, L-18719,
Oct. 31, 1964.
We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant case x x x.
xxxx
In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil liability arising
from crime under Article 100 of the Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the Civil
Code. If a party chooses the latter, he may hold the employer solidarily liable for the negligent act of his employee, subject
to the employer's defense of exercise of the diligence of a good father of the family.
In the case at bar, the action filed by appellant was an action for damages based on quasi-delict. The fact that appellants
reserved their right in the criminal case to file an independent civil action did not preclude them from choosing to file
a civil action for quasi-delict.20 (Emphasis supplied)
Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already final and executory, such judgment
has no relevance or importance to this case.21 It would have been entirely different if respondents' cause of action was for
damages arising from a delict, in which case the CA is correct in finding Safeguard to be only subsidiary liable pursuant to
Article 103 of the Revised Penal Code.22
Page 7 of 28 TORTS MEETING 5
As clearly shown by the allegations in the complaint, respondents' cause of action is based on quasi-delict. Under Article 2180 of
the Civil Code, when the injury is caused by the negligence of the employee, there instantly arises a presumption of law that
there was negligence on the part of the master or the employer either in the selection of the servant or employee, or in the
supervision over him after selection or both. The liability of the employer under Article 2180 is direct and immediate. Therefore,
it is incumbent upon petitioners to prove that they exercised the diligence of a good father of a family in the selection and
supervision of their employee.
We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether a person is negligent or not is a question of fact, which, as a general rule,
we cannot pass upon in a petition for review on certiorari, as our jurisdiction is limited to reviewing errors of law.23 Generally,
factual findings of the trial court, affirmed by the CA, are final and conclusive and may not be reviewed on appeal. The
established exceptions are: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is grave
abuse of discretion; (3) when the findings are grounded entirely on speculations, surmises or conjectures; (4) when the judgment
of the CA is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the CA, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when
the findings of fact are conclusions without citation of specific evidence on which they are based; (8) when the CA manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different
conclusion; and (9) when the findings of fact of the CA are premised on the absence of evidence and are contradicted by the
evidence on record. [24]
A thorough review of the records of the case fails to show any cogent reason for us to deviate from the factual finding of the trial
court and affirmed by the CA that petitioner Pajarillo was guilty of negligence in shooting Evangeline.
Respondents' evidence established that Evangeline's purpose in going to the bank was to renew her time deposit. 25On the other
hand, Pajarillo claims that Evangeline drew a gun from her bag and aimed the same at him, thus, acting instinctively, he shot her
in self-defense.
Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one meter or one arm's length 26he stepped
backward, loaded the chamber of his gun and shot her.27 It is however unimaginable that petitioner Pajarillo could still make
such movements if indeed the gun was already pointed at him. Any movement could have prompted Evangeline to pull the
trigger to shoot him.
Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere apprehension that Evangeline will stage a
bank robbery. However, such claim is befuddled by his own testimony. Pajarillo testified that prior to the incident, he saw
Evangeline roaming under the fly over which was about 10 meters away from the bank 28 and saw her talking to a man
thereat;29 that she left the man under the fly-over, crossed the street and approached the bank. However, except for the bare
testimony of Pajarillo, the records do not show that indeed Evangeline was seen roaming near the vicinity of the bank and acting
suspiciously prior to the shooting incident. In fact, there is no evidence that Pajarillo called the attention of his head guard or the
bank's branch manager regarding his concerns or that he reported the same to the police authorities whose outpost is just about
15 meters from the bank.
Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already apprised herself that Pajarillo,
who was posted outside the bank, was armed with a shotgun; that there were two guards inside the bank 30manning the entrance
door. Thus, it is quite incredible that if she really had a companion, she would leave him under the fly-over which is 10 meters
far from the bank and stage a bank robbery all by herself without a back-up. In fact, she would have known, after surveying the
area, that aiming her gun at Pajarillo would not ensure entrance to the bank as there were guards manning the entrance door.
Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself — such as
the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the
truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these
belongs to the miraculous and is outside judicial cognizance.31
That Evangeline just wanted to deposit her gun before entering the bank and was actually in the act of pulling her gun from her
bag when petitioner Pajarillo recklessly shot her, finds support from the contentions raised in petitioners' petition for review
where they argued that when Evangeline approached the bank, she was seen pulling a gun from inside her bag and petitioner
Pajarillo who was suddenly beset by fear and perceived the act as a dangerous threat, shot and killed the deceased out of pure
instinct;32 that the act of drawing a gun is a threatening act, regardless of whether or not the gun was intended to be used against
petitioner Pajarillo;33 that the fear that was created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing a gun
from her purse was suddenly very real and the former merely reacted out of pure self-preservation.34
Considering that unlawful aggression on the part of Evangeline is absent, Pajarillo's claim of self-defense cannot be accepted
specially when such claim was uncorroborated by any separate competent evidence other than his testimony which was even
doubtful. Pajarillo's apprehension that Evangeline will shoot him to stage a bank robbery has no basis at all. It is therefore clear
that the alleged threat of bank robbery was just a figment of Pajarillo's imagination which caused such unfounded unlawful
aggression on his part.
Petitioners argue that Evangeline was guilty of contributory negligence. Although she was a licensed firearm holder, she had no
business bringing the gun in such establishment where people would react instinctively upon seeing the gun; that had Evangeline
been prudent, she could have warned Pajarillo before drawing the gun and did not conduct herself with suspicion by roaming
outside the vicinity of the bank; that she should not have held the gun with the nozzle pointed at Pajarillo who mistook the act as
hold up or robbery.
We are not persuaded.
As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was seen roaming outside the vicinity of the
bank and acting suspiciously prior to the shooting incident. Evangeline's death was merely due to Pajarillo's negligence in
shooting her on his imagined threat that Evangeline will rob the bank.
Safeguard contends that it cannot be jointly held liable since it had adequately shown that it had exercised the diligence required
in the selection and supervision of its employees. It claims that it had required the guards to undergo the necessary training and
to submit the requisite qualifications and credentials which even the RTC found to have been complied with; that the RTC
erroneously found that it did not exercise the diligence required in the supervision of its employee. Safeguard further claims that
it conducts monitoring of the activities of its personnel, wherein supervisors are assigned to routinely check the activities of the
security guards which include among others, whether or not they are in their proper post and with proper equipment, as well as
regular evaluations of the employees' performances; that the fact that Pajarillo loaded his firearm contrary to Safeguard's
operating procedure is not sufficient basis to say that Safeguard had failed its duty of proper supervision; that it was likewise
error to say that Safeguard was negligent in seeing to it that the procedures and policies were not properly implemented by
reason of one unfortunate event.
We are not convinced.
Article 2180 of the Civil Code provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or industry.
xxxx
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.
As the employer of Pajarillo, Safeguard is primarily and solidarily liable for the quasi-delict committed by the former. Safeguard
is presumed to be negligent in the selection and supervision of his employee by operation of law. This presumption may be
overcome only by satisfactorily showing that the employer exercised the care and the diligence of a good father of a family in
the selection and the supervision of its employee.
In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and
service records.35 On the other hand, due diligence in the supervision of employees includes the formulation of suitable rules and
regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and
persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary
measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance
with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly
report on their supervisory functions.36 To establish these factors in a trial involving the issue of vicarious liability, employers
must submit concrete proof, including documentary evidence.
We agree with the RTC's finding that Safeguard had exercised the diligence in the selection of Pajarillo since the record shows
that Pajarillo underwent a psychological and neuro-psychiatric evaluation conducted by the St. Martin de Porres Center where no
psychoses ideations were noted, submitted a certification on the Pre-licensing training course for security guards, as well as
police and NBI clearances.
The RTC did not err in ruling that Safeguard fell short of the diligence required in the supervision of its employee, particularly
Pajarillo. In this case, while Safeguard presented Capt. James Camero, its Director for Operations, who testified on the issuance
of company rules and regulations, such as the Guidelines of Guards Who Will Be Assigned To Banks,37 Weapons
Training,38 Safeguard Training Center Marksmanship Training Lesson Plan,39Disciplinary/Corrective Sanctions,40 it had also
been established during Camero's cross-examination that Pajarillo was not aware of such rules and
regulations.41 Notwithstanding Camero's clarification on his re-direct examination that these company rules and regulations are
lesson plans as a basis of guidelines of the instructors during classroom instructions and not necessary to give students copy of
the same,42 the records do not show that Pajarillo had attended such classroom instructions.
The records also failed to show that there was adequate training and continuous evaluation of the security guard's performance.
Pajarillo had only attended an in-service training on March 1, 1997 conducted by Toyota Sta. Rosa, his first assignment as
security guard of Safeguard, which was in collaboration with Safeguard. It was established that the concept of such training was
purely on security of equipments to be guarded and protection of the life of the employees. 43
Page 8 of 28 TORTS MEETING 5
It had not been established that after Pajarillo's training in Toyota, Safeguard had ever conducted further training of Pajarillo
when he was later assigned to guard a bank which has a different nature of business with that of Toyota. In fact, Pajarillo
testified that being on duty in a bank is different from being on duty in a factory since a bank is a very sensitive area. 44
Moreover, considering his reactions to Evangeline's act of just depositing her firearm for safekeeping, i.e., of immediately
shooting her, confirms that there was no training or seminar given on how to handle bank clients and on human psychology.
Furthermore, while Safeguard would like to show that there were inspectors who go around the bank two times a day to see the
daily performance of the security guards assigned therein, there was no record ever presented of such daily inspections. In fact, if
there was really such inspection made, the alleged suspicious act of Evangeline could have been taken noticed and reported.
Turning now to the award of damages, we find that the award of actual damages in the amount P157,430.00 which were the
expenses incurred by respondents in connection with the burial of Evangeline were supported by receipts. The award
of P50,000.00 as civil indemnity for the death of Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of the Civil Code provides that the spouse, legitimate children and illegitimate
descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the
deceased. Moral damages are awarded to enable the injured party to obtain means, diversions or amusements that will serve to
alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable action. Its award is aimed at restoration,
as much as possible, of the spiritual status quo ante; thus it must be proportionate to the suffering inflicted.45 The intensity of the
pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation
whatsoever with the wealth or means of the offender.46
In this case, respondents testified as to their moral suffering caused by Evangeline's death was so sudden causing respondent
Lauro to lose a wife and a mother to six children who were all minors at the time of her death. In People v. Teehankee, Jr.,47 we
awarded one million pesos as moral damages to the heirs of a seventeen-year-old girl who was murdered. In Metro Manila
Transit Corporation v. Court of Appeals,48 we likewise awarded the amount of one million pesos as moral damages to the
parents of a third year high school student and who was also their youngest child who died in a vehicular accident since the girl's
death left a void in their lives. Hence, we hold that the respondents are also entitled to the amount of one million pesos as
Evangeline's death left a void in the lives of her husband and minor children as they were deprived of her love and care by her
untimely demise.
We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under Article 2229 of the Civil Code,
exemplary damages are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated
or compensatory damages.49 It is awarded as a deterrent to socially deleterious actions. In quasi-delict, exemplary damages may
be granted if the defendant acted with gross negligence.50
Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in the instant case, exemplary damages are
awarded. Hence, we affirm the award of attorney's fees in the amount of P30,000.00.
WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of the Court of Appeals
is AFFIRMED with MODIFICATION that the civil liability of petitioner Safeguard Security Agency, Inc.
is SOLIDARYand PRIMARY under Article 2180 of the Civil Code.
SO ORDERED.
TORTS 50
G.R. No. 165413 February 22, 2012
PHILAM INSURANCE COMPANY, INC. and AMERICAN HOME INSURANCE CO., Petitioners,
vs.
COURT OF APPEALS, and D.M. CONSUNJI INC., Respondents.
DECISION
SERENO, J.:
In this Petition for Review on Certiorari under Rule 45, petitioners Philam Insurance Company, Incorporated (Philam) and
American Home Insurance Company (AHIC) seek the reversal of the Decision of the Court of Appeals (CA) in CA-G.R. CV
No. 60098 dated 28 June 2004 and its Resolution dated 24 September 2004. The CA Decision reversed and set aside that of the
Regional Trial Court (RTC) of Makati City in Civil Case No. 95-540 dated 28 April 1998.
The CA ruled against petitioners’ demand for the recovery of the value of the insured’s generator set (genset) against private
respondent D.M. Consunji Incorporated (DMCI), whose alleged negligence damaged the said equipment.
The antecedent facts are as follows:
Four gensets from the United States of America were ordered by Citibank, N.A. (Citibank). Petitioner AHIC insured these
gensets under Certificate No. 60221 for USD 851,500 covering various risks. 1 The insurance policy provided that the claim may
be paid in the Philippines by Philam Insurance Co., Inc, AHIC’s local settling agent.2
Citibank’s broker-forwarder, Melicia International Services (MIS),3 transported the gensets in separate container vans. It was
instructed by Citibank to deliver and haul one genset to Makati City,4 where the latter’s office was being constructed by the
building contractor, DMCI.
MIS was further instructed to place the 13-ton genset5 at the top of Citibank’s building. The broker-forwarder declined, since it
had no power cranes.6 Thus, Citibank assigned the job to private respondent DMCI, which accepted the task.7
On 16 October 1993, DMCI lifted the genset with a crane (Unic-K-2000) that had a hydraulic telescopic boom and a loading
capacity of 20 tons.8 During the lifting process, both the crane’s boom and the genset fell and got damaged. 9
The events leading to the fall, based mainly on the signed statement10 of DMCI’s crane operator, Mr. Ariel Del Pilar, transpired
as follows:
The genset was lifted clear out of the open top container by the crane. After clearing the container van, the crane operator, Mr.
Ariel del Pilar, had to position the genset over the vicinity of the storage area. To do this, the boom of the crane carrying the
generator set had to be turned (swing) to face right and stopped when it loomed over the storage area. The genset was swinging
as it came to a stop following the right turn. The crane operator waited for the genset to stop swinging for him to perform the
next maneuver. The boom had to be raised three (3) degrees more from its position at 75 degrees, up to 78 degrees. At 78
degrees the genset could be lowered straight down to the delivery storage area.
The genset stopped swinging. The crane operator proceeded to raise the boom to 78 degrees. While so doing, the crane operator
felt a sudden upward movement of the boom. The genset began to swing in and out, towards the crane operator, then outward
and away. The body of the crane lifted off the ground, the boom fell from an approximate height of 9 feet, first hitting a Meralco
line, then falling to the ground.11
After two days, DMCI’s surveyor, Manila Adjusters & Surveyors Co. (MASC) assessed the condition of the crane and the
genset.12 According to its Survey Certificate, the genset was already deformed.13
Citibank demanded from DMCI the full value of the damaged genset, including the cost, insurance and freight amounting to
USD 212,850.14 Private respondent refused to pay, asserting that the damage was caused by an accident. 15
Thereafter, Citibank filed an insurance claim with Philam, AHIC’s local settling agent, for the value of the genset. Philam paid
the claim for PhP 5,866,146.16
Claiming the right of subrogation, Philam demanded the reimbursement of the genset’s value from DMCI, which denied
liability.17 Thus, on 19 April 1994, Philam filed a Complaint with the RTC to recover the value of the insured genset. 18
At the trial court, petitioner Philam did not invoke res ipsa loquitur. Rather, during the pre-trial conference, the parties agreed on
this sole issue: "Whether or not the damage was the fault of the defendant or within their area of supervision at the time the cause
of damage occurred."19
The RTC ruled in favor of Philam and ordered as follows:
WHEREFORE PREMISES CONSIDERED, judgment is hereby rendered in favor of plaintiff as against defendant ordering the
latter to pay plaintiff as follows:
1. the amount of PhP 5,866,146.00 as actual damages with interest at 6% per annum from the date of filing of this
Complaint until the sum is fully paid.
2. the amount equivalent to 25% of the sum recoverable as attorney’s fees;
3. cost of suit.
SO ORDERED. 20
The trial court ruled that the loss or damage to the genset was due to the negligent operation of the crane:
Page 9 of 28 TORTS MEETING 5
This Court finds that the loss or damage brought about by the falling of the genset was caused by negligence in the operation of
the crane in lifting the genset to as high as 9 feet causing the boom to fall [sic], hitting the Meralco line to ground, sustaining
heavy damage, which negligence was attributable to the crane operator. 21
DMCI appealed to the CA, which reversed and set aside the RTC’s Decision. The appellate court ruled that the falling of the
genset was a clear case of accident and, hence, DMCI could not be held responsible.
In this case, plaintiffs-appellees failed to discharge the burden of proving negligence on the part of the defendant-appellant’s
crane operator and other employees assisting in unloading the genset.
xxx xxx xxx
The falling of the genset to the ground was a clear case of accident xxx. xxx [D]efendant-appellant cannot be held responsible
for the event which could not be foreseen, or which though foreseen, was inevitable. 22
Accordingly, the dispositive portion reads:
WHEREFORE, there being merit in the appeal, the assailed Decision dated April 28, 1998 of the Regional Trial Court, Branch
61 of Makati City in Civil Case no. 95-1450, is REVERSED and SET ASIDE, and the complaint dismissed.
SO ORDERED.23
Hence, the pertinent issue in this Petition is whether petitioners have sufficiently established the negligence of DMCI for the
former to recover the value of the damaged genset. While this Court is not a trier of facts, and hesitates to review the factual
findings of the lower courts, in this occasion, it would do so considering the conflicting legal conclusions of the RTC and the
CA.
For DMCI to be liable for damages, negligence on its part must be established. 24 Additionally, that finding must be the proximate
cause of the damage to the genset.25 We agree with the CA that Philam failed to establish DMCI’s negligence.
Negligence is the want of care required by the circumstances. 26 It is a conduct that involves an unreasonably great risk of causing
damage; or, more fully, a conduct that falls below the standard established by law for the protection of others against
unreasonably great risk of harm.27
Philam blames the conduct of DMCI’s crane operator for the genset’s fall. Essentially, it points out the following errors in
operating the crane:
First, Del Pilar did not give any reason for his act of raising the boom from 75 to 78 degrees at the stage when the genset was
already set for lowering to the ground.28
Second, Del Pilar’s revving of the motor of the boom "triggered the chain of events – starting with the jerk, then followed by the
swinging of the genset which was obviously violent as it caused the body of the crane to tilt upward, and ultimately, caused the
boom with the genset to fall."29
It would be a long stretch to construe these as acts of negligence. Not all omissions can be considered as negligent. The test of
negligence is as follows:
Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the
duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to exist. 30
Applying the test, the circumstances would show that the acts of the crane operator were rational and justified.
Addressing Philam’s first submission, this Court finds that the records are replete with explanations for why the boom of the
crane had to be raised from 75 to 78 degrees. Although the boom is already in the general area of the genset’s storage place, still,
it had to be raised three (3) degrees in order to put it exactly in the proper designation. At 78 degrees, the genset could be
lowered straight down to the delivery/storage area.31 DMCI’s crane operation team determined accordingly that there was a need
to raise the boom in order to put the genset in the exact location. Indeed, the heavy equipment must be secured in its proper
place.
Proceeding to the more contentious claim, Philam emphasized the apparent inconsistencies in Del Pilar’s narration. In his signed
statement, executed 15 days after the incident, Del Pilar stated that when he raised the boom from 75 to 78 degrees, he revved
the motor, upon which he felt the sudden upward movement (jerk) of the boom followed by the swinging of the genset. 32
But in his affidavit, executed already during the trial, Del Pilar mentioned that he moved the boom slowly when he raised it to 78
degrees.33 Philam deems this narration questionable since the "slow movement" was never mentioned in Del Pilar’s earlier
signed statement.34
Examining the signed statement and the affidavit of Del Pilar, petitioner Philam inaccurately portrayed his narration.
In his signed statement, Del Pilar already mentioned that he slowly moved the genset, and when it swayed, he waited for the
swinging to stop before he lifted the equipment:
Itinuloy ko na ang pag-angat ng genset at pagkatapos ng malagpas na sa open top van container, dahan-dahan na ako nagpihit o
swing papunta sa kanan at pagkatapos ng nasa direksyon na ako ng paglalagyan, itinigil ko ang pagpihit o pag swing pagkatapos
hinintay ko ang genset sa paggalaw at ng huminto na ang genset sa paggalaw, nagboom up ako mula 75° hanggang 78°, sa tantya
ko at noong mag boom up, nag-rebolution (sic) ako at naramdaman ko na biglang gumalaw paangat (paboom-up) ang boom ng
Crane No. CR-81 at nag-swing na naman patungo sa akin ang genset. At nang ito ay umindayog papalayo sa crane ay doon ko
naramdaman na iyong body ng Crane No. CR-81 ay umangat at nakita kong tumumba ang boom ng Crane CR-81 at bumagsak
ang genset sa loob ng Citibank (sic) Parking Area. Noon ika-16 ng Octubre 1993 ng oras na alas 4:55 ng umaga." (Emphasis S: Nang matalian po namin (ako at ang nasabing rigger man) ang genset, pumunta na po ako sa operating cab ng Crane No. CR-
supplied.) 81 pagkatapos pinaandar ko ang Crane CR-81 para umpisahan iangat ang genset mula sa open top container pagkatapos
In his affidavit, Del Pilar’s statements concentrated on the manner of lifting of the genset. At this point, he recalled that the boom sinubukan ko ng buhatin ang genset at nang mabuhat ng isa o dalawang dangkal, ibinaba ko ito muli sa dating pwesto ng maka-
was raised slowly35 : apat na beses.
T: Papaano mo naitaas ang "boom" ng "crane" mula 75 digri hanggang 78 digri? T: Bakit mo ibinaba ng apat na beses ang genset mula ng ito ay iangat mo?
S: Dahan-dahan lang po. S: Sinisigurado ko ho na kaya ng Crane No. 81 ang bigat ng genset[.] 45
T: Pagkatapos mong maitaas ang boom ng crane sa 78 digri, iyong inumpisahan ibinaba ang "generator set" sa lupa subalit ito ay The testing of the crane during actual operations was corroborated by Solis when he stated as follows:
nagumpisang umugoy-ugoy o dumuyan-duyan palabas at papasok ang karga na "generator set" patungo sa akin. Ito ba ay tutuo? Q: What did you observe during the lifting operation?
S: Opo. 36 (Emphasis supplied.) A: During the lifting operation, I noticed that it took awhile (approx. 30 minutes) in lifting the genset, because the Crane
The affidavit, which the CA used as the main basis for its Decision, pertained exactly to how the crane’s boom had been raised. Operator, Mr. Ariel del Pilar was testing the lifting capability of Crane No. CR-81. I saw the genset, which was several times
It is only when a witness makes two sworn statements, and these two statements incur the gravest contradictions, that the court lifted about 1 foot high from the flooring of the open top van container.46
cannot accept both statements as proof.37 Thirdly, as can be gleaned from the statements above, Del Pilar stopped turning the controls, and it was only when the swinging
Logically, in order to raise the crane’s boom, the operator must step on the pedal; else, the 13-ton genset would not be brought stopped that he performed the next maneuver.1âwphi1 All of these acts, as proven by the evidence, showed due diligence in
down. Philam did not even present expert evidence to challenge the need of increasing the power supply to move the boom. operating the crane.
Donato F. Solis, DMCI’s electrical engineer assigned to supervise and coordinate the crane’s operations, corroborated Del In their final effort to reverse the appellate court, petitioners invoked res ipsa loquitur, even if they never had raised this doctrine
Pilar’s description. He gave an eyewitness account of the incident, and his statements thereon were taken by the surveyor, before the trial court.
MASC. Solis said: According to petitioners, the requisites of res ipsa loquitur are present in this case. 47 Had the principle been applied, the burden of
Q: What happened when the genset was already lifted out and at the above proposed storage area? proof in establishing due diligence in operating the crane would have shifted to DMCI. 48
A: After it was already at above the designated area, the genset was still swinging during the time (at about 4:50 a.m., October In this case, res ipsa loquitur is not applicable, since there is direct evidence49 on the issue of diligence or lack thereof pertaining
16, 1993) and when the genset stopped swinging I noticed that it was being lowered slowly to the ground and until approx. 6 feet to the lifting of the genset. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural
above the ground. I noticed that it was not being lowered because it was moving diagonally toward us. When it was moving convenience.50
toward us we ran to avoid being hit by the genset.38 In any event, res ipsa loquitur merely provides a rebuttable presumption of negligence. On this, we have already pointed out that
Even if Del Pilar failed to mention the slow manner of raising the boom in his earlier signed statement, the reverse is not the evidence does not prove negligence on the part of DMCI, and that due diligence on its part has been established.
necessarily established. Persons are easily liable to commit errors in the recollection of minute details of an important Hence, it has generally been held that the presumption arising from the doctrine cannot be availed of, or is overcome when the
occurrence.39 plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence that caused the injury complained
Alternatively, Philam asserts that if care was exercised in operating the crane, and yet the genset was damaged, then it must have of; or when there is direct evidence as to the precise cause of the accident, and with all the attendant facts clearly
been the very crane itself that was defective.40 present.51 Finally, neither the presumption nor the doctrine would apply when the circumstances have been so completely
We cannot give credence to mere conjectures and assumptions on the condition of the crane to prove negligence. In Picart v. elucidated that no inference of the defendant's liability can reasonably be made, whatever the source of the evidence. 52
Smith, the Court stressed that abstract speculations cannot be of much value: Absent any finding of negligence, we sustain the CA’s findings that DMCI exercised due diligence; that the event is an accident;
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined and that consequently Philam cannot claim damages for the damaged genset.53
in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of IN VIEW THEREOF, the assailed 28 June 2004 Decision of the Court of Appeals and its 24 September 2004 Resolution are
much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before AFFIRMED. The 11 October 2004 Petition for Review filed by Philam Insurance Company, Inc. and American Home Insurance
them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take Corporation is hereby denied for lack of merit.
care only when there is something before them to suggest or warn of danger.41 SO ORDERED.
The speculative assertion of Philam should be supported by specific evidence of the crane’s defects. Instead, Philam utterly
failed to contradict the findings of MASC which made an actual site inspection to observe the crane used in lifting the genset. In
its Survey Certificate, it stated that: "[U]pon close examination, the crane was observed in actual operation and found to be in
satisfactory working condition."42 (Emphasis supplied.)
Since Philam failed to convince us of actions that would lay the blame on DMCI, this Court agrees with the CA that DMCI
exercised the necessary care and precaution in lifting the genset.
Firstly, a whole team was involved in transferring the genset. Petitioners did not even the question the acts of the other team
members involved in the crane operations. Del Pilar stated thus:
T: Ikaw lang ba mag-isa ang magbababa ng nasabing "generator set"?
S: Hindi po, ako po ay tinulungan ng isang katrabahong "rigger" na ang pangalan ay si G. MARCELINO ROMERO, ng aming
Foreman na si G. FERNANDO DELA ROSA ng Motor Pool, isang mekaniko, at ni DONATO SOLIS, isang ehenyero.
T: Anu-ano tulong o ayuda ang naibigay sa iyo ng bawat isa sa mga taong iyong nabanggit?
S: Si G. MARCELINO ROMERO na isang "rigger" ay tumulong sa akin upang maitali ang "generator set" sa kable ng "crane"
at sa pagbibigay ng senyas sa akin kung kailan itataas ang pagbuhat ng "generator set", kung kailan magaalalay sa pagtaas at
mga iba pang bagay-bagay na may kinalaman sa pagpapatakbo ng "crane". Ang motor pool foreman ay nandoon naman upang
tingnan at subaybayan na lahat ng bagay pangkaligtasan sa pagbubuhat ng crane sa "generator set" upang ito’y maibaba ng
maayos. Si Ehenyero DONATO SOLIS ay ang pangkalahatang nangangasiwa sa pagbubuhat o paglalapag ng nasabing
"generator set". Ang mekaniko naman na hindi ko na matandaan ang kanyang pangalan ay nandoon upang tumulong kung
sakaling magkakaroon ng suliranin pang-mekanikal ang "crane".43
Secondly, as found by the CA,44 Del Pilar exercised reasonable care and caution when he tested the crane four times right before
actual operations to make sure that it could lift the genset. He stated further:
T: Maari (sic) mo bang isalaysay ang buong pangyayari tungkol sa pagbuhat at pagdiskarga ng genset mula sa open top van
container na nasa trailer ng ibabaw ng Marzan Trucking?

Page 10 of 28 TORTS MEETING 5

TORTS 51
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by
private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries
they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an
excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that
respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the
lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her
arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their
own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the manhole and the conduit system.3 Accordingly, PLDT filed a
third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable
for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. 4 In answer thereto, Barte
claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the
terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with
barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the
presence of excavations.5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby
ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages;
to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of
interest from the date of the filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the
sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to
the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-
party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with
Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of respondent
spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for
damages.7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said
respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the
Court of Appeals denied said motion for reconsideration.10 This resolution was received by respondent spouses on February 22,
1980.11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second
motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by
Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice thereof. 13 Said
resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their
second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The
Court of Appeals, in view of the divergent opinions on the resolution of the second motion for reconsideration, designated two
additional justices to form a division of five.16 On September 3, 1980, said division of five promulgated its resolution, penned by
Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980,
and affirming in toto the decision of the lower court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3,
1980, contending that the second motion for reconsideration of private respondent spouses was filed out of time and that the
decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor
rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent Court of Appeals promulgated
its resolution denying said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court
dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
Page 11 of 28 TORTS MEETING 5
1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that
the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division, dated
January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule
in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties,
may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for reconsideration within ten (10)
days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated September 25,
1979 and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration and,
consequently, said second motion for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for
reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the
first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of the
reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said
motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22,
1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial options. On February
23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave of court to file
a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the
other hand, they could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from
February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February 29, 1980, and
said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was
suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer validly take further
proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing
of the motion for leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and the
subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary period to file the same, produced
no legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be
re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid
motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration, is null and void. The
period for filing a second motion for reconsideration had already expired when private respondents sought leave to file the same,
and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of ten (10) days for
private respondents to file their second motion for reconsideration was of no legal consequence since it was given when there
was no more period to extend. It is an elementary rule that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said extension for filing
a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and executory
on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for reconsideration and reversing the original decision are null and void and cannot
disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule that once
a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it to further
alter or amend, much less revoke it.25 The decision rendered anew is null and void.26 The court's inherent power to correct its
own errors should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation will be
endless and no question could be considered finally settled. Although the granting or denial of a motion for reconsideration
involves the exercise of discretion,27 the same should not be exercised whimsically, capriciously or arbitrarily, but prudently in
conformity with law, justice, reason and equity.28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the
respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such findings were another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant
reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent court's him substantial moral and exemplary damages from the big corporation that defendant is. The statement is made only to
resolution of January 24, 1980 which we quote with approval: stress the disadvantageous position of defendant which would have extreme difficulty in contesting such person's claim. If
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not there were no witness or record available from the police department of Bacolod, defendant would not be able to determine
have hit the ACCIDENT MOUND. for itself which of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left that is, police department.32
swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the accident, defendant cannot A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence
be made liable for the damages suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever
unexplained abrupt swerving of the jeep from the inside lane. That may explain plaintiff-husband's insistence that he did not relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested,
see the ACCIDENT MOUND for which reason he ran into it. otherwise his action must fail.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET
corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND. ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED.
It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where the SO ORDERED.
ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the ACCIDENT MOUND
had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently passable to vehicles.
The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the
ACCIDENT MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have
braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT
MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running quite fast. If the jeep had
been braked at 25 kilometers an hour, plaintiff's would not have been thrown against the windshield and they would not
have suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some reason or
other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had not
exercised the diligence of a good father of a family to avoid the accident. With the drizzle, he should not have run on dim
lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he
was running on the outside lane at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in
time to brake the car was negligence on his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet
high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign
either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many previous times. With
ordinary precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT
MOUND.29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and
those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby
precludes their right to recover damages.30 The perils of the road were known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform
and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some
quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the
proximate cause only when the doing of the said omitted act would have prevented the injury. 31 It is basic that private
respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause
thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the
negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had
knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger,
hence he is solely responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient
evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of respondent
Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report
of the incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated
have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only rely on the
testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated, with defendant, as the
party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs,

Page 12 of 28 TORTS MEETING 5

TORTS 52
G.R. No. 139130 November 27, 2002
RAMON K. ILUSORIO, petitioner,
vs.
HON. COURT OF APPEALS, and THE MANILA BANKING CORPORATION, respondents.
DECISION
QUISUMBING, J.:
This petition for review seeks to reverse the decision1 promulgated on January 28, 1999 by the Court of Appeals in CA-G.R. CV
No. 47942, affirming the decision of the then Court of First Instance of Rizal, Branch XV (now the Regional Trial Court of
Makati, Branch 138) dismissing Civil Case No. 43907, for damages.
The facts as summarized by the Court of Appeals are as follows:
Petitioner is a prominent businessman who, at the time material to this case, was the Managing Director of Multinational
Investment Bancorporation and the Chairman and/or President of several other corporations. He was a depositor in good
standing of respondent bank, the Manila Banking Corporation, under current Checking Account No. 06-09037-0. As he was then
running about 20 corporations, and was going out of the country a number of times, petitioner entrusted to his secretary,
Katherine2 E. Eugenio, his credit cards and his checkbook with blank checks. It was also Eugenio who verified and reconciled
the statements of said checking account.3
Between the dates September 5, 1980 and January 23, 1981, Eugenio was able to encash and deposit to her personal account
about seventeen (17) checks drawn against the account of the petitioner at the respondent bank, with an aggregate amount
of P119,634.34. Petitioner did not bother to check his statement of account until a business partner apprised him that he saw
Eugenio use his credit cards. Petitioner fired Eugenio immediately, and instituted a criminal action against her for estafa thru
falsification before the Office of the Provincial Fiscal of Rizal. Private respondent, through an affidavit executed by its
employee, Mr. Dante Razon, also lodged a complaint for estafa thru falsification of commercial documents against Eugenio on
the basis of petitioner’s statement that his signatures in the checks were forged. 4 Mr. Razon’s affidavit states:
That I have examined and scrutinized the following checks in accordance with prescribed verification procedures with utmost
care and diligence by comparing the signatures affixed thereat against the specimen signatures of Mr. Ramon K. Ilusorio which
we have on file at our said office on such dates,
xxx
That the aforementioned checks were among those issued by Manilabank in favor of its client MR. RAMON K. ILUSORIO,…
That the same were personally encashed by KATHERINE E. ESTEBAN, an executive secretary of MR. RAMON K.
ILUSORIO in said Investment Corporation;
That I have met and known her as KATHERINE E. ESTEBAN the attending verifier when she personally encashed the above-
mentioned checks at our said office;
That MR. RAMON K. ILUSORIO executed an affidavit expressly disowning his signature appearing on the checks further
alleged to have not authorized the issuance and encashment of the same.…5
Petitioner then requested the respondent bank to credit back and restore to its account the value of the checks which were
wrongfully encashed but respondent bank refused. Hence, petitioner filed the instant case. 6
At the trial, petitioner testified on his own behalf, attesting to the truth of the circumstances as narrated above, and how he
discovered the alleged forgeries. Several employees of Manila Bank were also called to the witness stand as hostile witnesses.
They testified that it is the bank’s standard operating procedure that whenever a check is presented for encashment or clearing,
the signature on the check is first verified against the specimen signature cards on file with the bank.
Manila Bank also sought the expertise of the National Bureau of Investigation (NBI) in determining the genuineness of the
signatures appearing on the checks. However, in a letter dated March 25, 1987, the NBI informed the trial court that they could
not conduct the desired examination for the reason that the standard specimens submitted were not sufficient for purposes of
rendering a definitive opinion. The NBI then suggested that petitioner be asked to submit seven (7) or more additional standard
signatures executed before or about, and immediately after the dates of the questioned checks. Petitioner, however, failed to
comply with this request.
After evaluating the evidence on both sides, the court a quo rendered judgment on May 12, 1994 with the following dispositive
portion:
WHEREFORE, finding no sufficient basis for plaintiff's cause herein against defendant bank, in the light of the foregoing
considerations and established facts, this case would have to be, as it is hereby DISMISSED.
Defendant’s counterclaim is likewise DISMISSED for lack of sufficient basis.
SO ORDERED.7
Aggrieved, petitioner elevated the case to the Court of Appeals by way of a petition for review but without success. The
appellate court held that petitioner’s own negligence was the proximate cause of his loss. The appellate court disposed as
follows:
WHEREFORE, the judgment appealed from is AFFIRMED. Costs against the appellant.
SO ORDERED.8
Page 13 of 28 TORTS MEETING 5
Before us, petitioner ascribes the following errors to the Court of Appeals:
A. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE RESPONDENT BANK IS ESTOPPED FROM
RAISING THE DEFENSE THAT THERE WAS NO FORGERY OF THE SIGNATURES OF THE PETITIONER IN THE
CHECK BECAUSE THE RESPONDENT FILED A CRIMINAL COMPLAINT FOR ESTAFA THRU FALSIFICATION OF
COMMERCIAL DOCUMENTS AGAINST KATHERINE EUGENIO USING THE AFFIDAVIT OF PETITIONER STATING
THAT HIS SIGNATURES WERE FORGED AS PART OF THE AFFIDAVIT-COMPLAINT.9
B. THE COURT OF APPEALS ERRED IN NOT APPLYING SEC. 23, NEGOTIABLE INSTRUMENTS LAW.10
C. THE COURT OF APPEALS ERRED IN NOT HOLDING THE BURDEN OF PROOF IS WITH THE RESPONDENT
BANK TO PROVE THE DUE DILIGENCE TO PREVENT DAMAGE, TO THE PETITIONER, AND THAT IT WAS NOT
NEGLIGENT IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES.11
D. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT BANK SHOULD BEAR THE LOSS,
AND SHOULD BE MADE TO PAY PETITIONER, WITH RECOURSE AGAINST KATHERINE EUGENIO ESTEBAN. 12
Essentially the issues in this case are: (1) whether or not petitioner has a cause of action against private respondent; and (2)
whether or not private respondent, in filing an estafa case against petitioner’s secretary, is barred from raising the defense that
the fact of forgery was not established.
Petitioner contends that Manila Bank is liable for damages for its negligence in failing to detect the discrepant checks. He adds
that as a general rule a bank which has obtained possession of a check upon an unauthorized or forged endorsement of the
payee’s signature and which collects the amount of the check from the drawee is liable for the proceeds thereof to the payee.
Petitioner invokes the doctrine of estoppel, saying that having itself instituted a forgery case against Eugenio, Manila Bank is
now estopped from asserting that the fact of forgery was never proven.
For its part, Manila Bank contends that respondent appellate court did not depart from the accepted and usual course of judicial
proceedings, hence there is no reason for the reversal of its ruling. Manila Bank additionally points out that Section 2313 of the
Negotiable Instruments Law is inapplicable, considering that the fact of forgery was never proven. Lastly, the bank negates
petitioner’s claim of estoppel.14
On the first issue, we find that petitioner has no cause of action against Manila Bank. To be entitled to damages, petitioner has
the burden of proving negligence on the part of the bank for failure to detect the discrepancy in the signatures on the checks. It is
incumbent upon petitioner to establish the fact of forgery, i.e., by submitting his specimen signatures and comparing them with
those on the questioned checks. Curiously though, petitioner failed to submit additional specimen signatures as requested by the
National Bureau of Investigation from which to draw a conclusive finding regarding forgery. The Court of Appeals found that
petitioner, by his own inaction, was precluded from setting up forgery. Said the appellate court:
We cannot fault the court a quo for such declaration, considering that the plaintiff’s evidence on the alleged forgery is not
convincing enough. The burden to prove forgery was upon the plaintiff, which burden he failed to discharge. Aside from his own
testimony, the appellant presented no other evidence to prove the fact of forgery. He did not even submit his own specimen
signatures, taken on or about the date of the questioned checks, for examination and comparison with those of the subject checks.
On the other hand, the appellee presented specimen signature cards of the appellant, taken at various years, namely, in 1976,
1979 and 1981 (Exhibits "1", "2", "3" and "7"), showing variances in the appellant’s unquestioned signatures. The evidence
further shows that the appellee, as soon as it was informed by the appellant about his questioned signatures, sought to borrow the
questioned checks from the appellant for purposes of analysis and examination (Exhibit "9"), but the same was denied by the
appellant. It was also the former which sought the assistance of the NBI for an expert analysis of the signatures on the questioned
checks, but the same was unsuccessful for lack of sufficient specimen signatures. 15
Moreover, petitioner’s contention that Manila Bank was remiss in the exercise of its duty as drawee lacks factual basis.
Consistently, the CA and the RTC found that Manila Bank employees exercised due diligence in cashing the checks. The bank’s
employees in the present case did not have a hint as to Eugenio’s modus operandi because she was a regular customer of the
bank, having been designated by petitioner himself to transact in his behalf. According to the appellate court, the employees of
the bank exercised due diligence in the performance of their duties. Thus, it found that:
The evidence on both sides indicates that TMBC’s employees exercised due diligence before encashing the checks. Its verifiers
first verified the drawer’s signatures thereon as against his specimen signature cards, and when in doubt, the verifier went
further, such as by referring to a more experienced verifier for further verification. In some instances the verifier made a
confirmation by calling the depositor by phone. It is only after taking such precautionary measures that the subject checks were
given to the teller for payment.
Of course it is possible that the verifiers of TMBC might have made a mistake in failing to detect any forgery -- if indeed there
was. However, a mistake is not equivalent to negligence if they were honest mistakes. In the instant case, we believe and so hold
that if there were mistakes, the same were not deliberate, since the bank took all the precautions. 16
As borne by the records, it was petitioner, not the bank, who was negligent. 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. 17 In the present case, it appears that petitioner accorded his
secretary unusual degree of trust and unrestricted access to his credit cards, passbooks, check books, bank statements, including
custody and possession of cancelled checks and reconciliation of accounts. Said the Court of Appeals on this matter:
Moreover, the appellant had introduced his secretary to the bank for purposes of reconciliation of his account, through a letter
dated July 14, 1980 (Exhibit "8"). Thus, the said secretary became a familiar figure in the bank. What is worse, whenever the
bank verifiers call the office of the appellant, it is the same secretary who answers and confirms the checks.
The trouble is, the appellant had put so much trust and confidence in the said secretary, by entrusting not only his credit cards
with her but also his checkbook with blank checks. He also entrusted to her the verification and reconciliation of his account.
Further adding to his injury was the fact that while the bank was sending him the monthly Statements of Accounts, he was not
personally checking the same. His testimony did not indicate that he was out of the country during the period covered by the
checks. Thus, he had all the opportunities to verify his account as well as the cancelled checks issued thereunder -- month after
month. But he did not, until his partner asked him whether he had entrusted his credit card to his secretary because the said
partner had seen her use the same. It was only then that he was minded to verify the records of his account. 18
The abovecited findings are binding upon the reviewing court. We stress the rule that the factual findings of a trial court,
especially when affirmed by the appellate court, are binding upon us19 and entitled to utmost respect20 and even finality. We find
no palpable error that would warrant a reversal of the appellate court’s assessment of facts anchored upon the evidence on
record.
Petitioner’s failure to examine his bank statements appears as the proximate cause of his own damage. Proximate cause is that
cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred.21 In the instant case, the bank was not shown to be remiss in its duty of sending
monthly bank statements to petitioner so that any error or discrepancy in the entries therein could be brought to the bank’s
attention at the earliest opportunity. But, petitioner failed to examine these bank statements not because he was prevented by
some cause in not doing so, but because he did not pay sufficient attention to the matter. Had he done so, he could have been
alerted to any anomaly committed against him. In other words, petitioner had sufficient opportunity to prevent or detect any
misappropriation by his secretary had he only reviewed the status of his accounts based on the bank statements sent to him
regularly. In view of Article 2179 of the New Civil Code,22 when the plaintiff’s own negligence was the immediate and
proximate cause of his injury, no recovery could be had for damages.
Petitioner further contends that under Section 23 of the Negotiable Instruments Law a forged check is inoperative, and that
Manila Bank had no authority to pay the forged checks. True, it is a rule that when a signature is forged or made without the
authority of the person whose signature it purports to be, the check is wholly inoperative. No right to retain the instrument, or to
give a discharge therefor, or to enforce payment thereof against any party, can be acquired through or under such signature.
However, the rule does provide for an exception, namely: "unless the party against whom it is sought to enforce such right is
precluded from setting up the forgery or want of authority." In the instant case, it is the exception that applies. In our view,
petitioner is precluded from setting up the forgery, assuming there is forgery, due to his own negligence in entrusting to his
secretary his credit cards and checkbook including the verification of his statements of account.
Petitioner’s reliance on Associated Bank vs. Court of Appeals23 and Philippine Bank of Commerce vs. CA24 to buttress his
contention that respondent Manila Bank as the collecting or last endorser generally suffers the loss because it has the duty to
ascertain the genuineness of all prior endorsements is misplaced. In the cited cases, the fact of forgery was not in issue. In the
present case, the fact of forgery was not established with certainty. In those cited cases, the collecting banks were held to be
negligent for failing to observe precautionary measures to detect the forgery. In the case before us, both courts below uniformly
found that Manila Bank’s personnel diligently performed their duties, having compared the signature in the checks from the
specimen signatures on record and satisfied themselves that it was petitioner’s.
On the second issue, the fact that Manila Bank had filed a case for estafa against Eugenio would not estop it from asserting the
fact that forgery has not been clearly established. Petitioner cannot hold private respondent in estoppel for the latter is not the
actual party to the criminal action. In a criminal action, the State is the plaintiff, for the commission of a felony is an offense
against the State.25 Thus, under Section 2, Rule 110 of the Rules of Court the complaint or information filed in court is required
to be brought in the name of the "People of the Philippines." 26
Further, as petitioner himself stated in his petition, respondent bank filed the estafa case against Eugenio on the basis of
petitioner’s own affidavit,27 but without admitting that he had any personal knowledge of the alleged forgery. It is, therefore,
easy to understand that the filing of the estafa case by respondent bank was a last ditch effort to salvage its ties with the
petitioner as a valuable client, by bolstering the estafa case which he filed against his secretary.
All told, we find no reversible error that can be ascribed to the Court of Appeals.
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals dated January 28,
1999 in CA-G.R. CV No. 47942, is AFFIRMED.
Costs against petitioner.
SO ORDERED.

Page 14 of 28 TORTS MEETING 5

TORTS 53
G.R. No. 154259 February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)1 and Ruby Lim assail the
Decision2 of the Court of Appeals dated 26 November 2001 reversing the Decision 3 of the Regional Trial Court (RTC) of
Quezon City, Branch 104, as well as the Resolution4 of the Court of Appeals dated 09 July 2002 which denied petitioners’
motion for reconsideration.
The cause of action before the trial court was one for damages brought under the human relations provisions of the New Civil
Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly known by the screen name "Amay Bisaya," alleged
that at around 6:00 o’clock in the evening of 13 October 1994, while he was having coffee at the lobby of Hotel Nikko, 5 he was
spotted by his friend of several years, Dr. Violeta Filart, who then approached him.6 Mrs. Filart invited him to join her in a party
at the hotel’s penthouse in celebration of the natal day of the hotel’s manager, Mr. Masakazu Tsuruoka.7 Mr. Reyes asked if she
could vouch for him for which she replied: "of course."8 Mr. Reyes then went up with the party of Dr. Filart carrying the basket
of fruits which was the latter’s present for the celebrant.9 At the penthouse, they first had their picture taken with the celebrant
after which Mr. Reyes sat with the party of Dr. Filart.10 After a couple of hours, when the buffet dinner was ready, Mr. Reyes
lined-up at the buffet table but, to his great shock, shame and embarrassment, he was stopped by petitioner herein, Ruby Lim,
who claimed to speak for Hotel Nikko as Executive Secretary thereof.11 In a loud voice and within the presence and hearing of
the other guests who were making a queue at the buffet table, Ruby Lim told him to leave the party ("huwag ka nang kumain,
hindi ka imbitado, bumaba ka na lang").12 Mr. Reyes tried to explain that he was invited by Dr. Filart.13 Dr. Filart, who was
within hearing distance, however, completely ignored him thus adding to his shame and humiliation. 14 Not long after, while he
was still recovering from the traumatic experience, a Makati policeman approached and asked him to step out of the hotel. 15 Like
a common criminal, he was escorted out of the party by the policeman. 16 Claiming damages, Mr. Reyes asked for One Million
Pesos actual damages, One Million Pesos moral and/or exemplary damages and Two Hundred Thousand Pesos attorney’s fees. 17
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the ignominious circumstance painted
by the latter. Ms. Lim narrated that she was the Hotel’s Executive Secretary for the past twenty (20) years. 18 One of her functions
included organizing the birthday party of the hotel’s former General Manager, Mr. Tsuruoka. 19 The year 1994 was no different.
For Mr. Tsuruoka’s party, Ms. Lim generated an exclusive guest list and extended invitations accordingly. 20 The guest list was
limited to approximately sixty (60) of Mr. Tsuruoka’s closest friends and some hotel employees and that Mr. Reyes was not one
of those invited.21 At the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink. 22 Mindful of Mr. Tsuruoka’s
wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to inquire as to the presence of Mr.
Reyes who was not invited.23 Mr. Miller replied that he saw Mr. Reyes with the group of Dr. Filart. 24 As Dr. Filart was engaged
in conversation with another guest and as Ms. Lim did not want to interrupt, she inquired instead from the sister of Dr. Filart,
Ms. Zenaida Fruto, who told her that Dr. Filart did not invite Mr. Reyes. 25 Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to
leave the party as he was not invited.26 Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that
Mr. Reyes did not want to leave.27 When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom
she later approached.28 Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the same
favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not invited.29 Still, Mr. Reyes
lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to speak to him herself as there were no other guests
in the immediate vicinity.30 However, as Mr. Reyes was already helping himself to the food, she decided to wait.31 When Mr.
Reyes went to a corner and started to eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero
total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na kayo."32 She then
turned around trusting that Mr. Reyes would show enough decency to leave, but to her surprise, he began screaming and making
a big scene, and even threatened to dump food on her.33 1awphi1.nét
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of the story to the effect that
she never invited Mr. Reyes to the party.34 According to her, it was Mr. Reyes who volunteered to carry the basket of fruits
intended for the celebrant as he was likewise going to take the elevator, not to the penthouse but to Altitude 49. 35 When they
reached the penthouse, she reminded Mr. Reyes to go down as he was not properly dressed and was not invited. 36 All the while,
she thought that Mr. Reyes already left the place, but she later saw him at the bar talking to Col. Batung. 37 Then there was a
commotion and she saw Mr. Reyes shouting.38 She ignored Mr. Reyes.39 She was embarrassed and did not want the celebrant to
think that she invited him.40
After trial on the merits, the court a quo dismissed the complaint,41 giving more credence to the testimony of Ms. Lim that she
was discreet in asking Mr. Reyes to leave the party. The trial court likewise ratiocinated that Mr. Reyes assumed the risk of
being thrown out of the party as he was uninvited:
Page 15 of 28 TORTS MEETING 5
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday celebrant. He assumed the
risk of being asked to leave for attending a party to which he was not invited by the host. Damages are pecuniary consequences
which the law imposes for the breach of some duty or the violation of some right. Thus, no recovery can be had against
defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew
that it was not the party of defendant Violeta Filart even if she allowed him to join her and took responsibility for his attendance
at the party. His action against defendants Nikko Hotel and Ruby Lim must therefore fail. 42
On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of belief the testimony of Mr.
Reyes that Ms. Lim ordered him to leave in a loud voice within hearing distance of several guests:
In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to leave the place within
the hearing distance of other guests is an act which is contrary to morals, good customs . . ., for which appellees should
compensate the appellant for the damage suffered by the latter as a consequence therefore (Art. 21, New Civil Code). The
liability arises from the acts which are in themselves legal or not prohibited, but contrary to morals or good customs. Conversely,
even in the exercise of a formal right, [one] cannot with impunity intentionally cause damage to another in a manner contrary to
morals or good customs.43
The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire into the presence of
Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have approached Dr. Filart first and both of them
should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to approach appellee Mrs. Filart
and together they should have told appellant Reyes in private that the latter should leave the party as the celebrant only wanted
close friends around. It is necessary that Mrs. Filart be the one to approach appellant because it was she who invited appellant in
that occasion. Were it not for Mrs. Filart’s invitation, appellant could not have suffered such humiliation. For that, appellee Filart
is equally liable.
...
The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of consideration of one person,
which calls not only protection of human dignity but respect of such dignity. Under Article 20 of the Civil Code, every person
who violates this duty becomes liable for damages, especially if said acts were attended by malice or bad faith. Bad faith does
not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious
doing of a wrong, a breach of a known duty to some motive or interest or ill-will that partakes of the nature of fraud (Cojuangco,
Jr. v. CA, et al., 309 SCRA 603).44
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the solidary obligation to pay
Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the amount
of Two Hundred Thousand Pesos (P200,000); and (3) attorney’s fees in the amount of Ten Thousand Pesos (P10,000). 45 On
motion for reconsideration, the Court of Appeals affirmed its earlier decision as the argument raised in the motion had "been
amply discussed and passed upon in the decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals seriously erred in –
I.… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN FINDINGS,
AMAY BISAYA WAS A GATE-CRASHER
II.… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR
DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH HUMILIATION,"
"WERE IT NOT FOR DR. FILART’S INVITATION"
III.… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE CIRCUMSTANCES
THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA
IV.… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY,
CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS REGARD
V.… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANT’S BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they cannot be made liable for
damages as respondent Reyes assumed the risk of being asked to leave (and being embarrassed and humiliated in the process) as
he was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury"47 ) refers to self-inflicted
injury48 or to the consent to injury49 which precludes the recovery of damages by one who has knowingly and voluntarily exposed
himself to danger, even if he is not negligent in doing so.50 As formulated by petitioners, however, this doctrine does not find
application to the case at bar because even if respondent Reyes assumed the risk of being asked to leave the party, petitioners,
under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to expose him to
unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a. "Amay Bisaya," to leave
the party where he was not invited by the celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil Code.
Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable conclusions concerning the same facts and
evidence of the case, this Court is left without choice but to use its latent power to review such findings of facts. Indeed, the
general rule is that we are not a trier of facts as our jurisdiction is limited to reviewing and revising errors of law.51 One of the
exceptions to this general rule, however, obtains herein as the findings of the Court of Appeals are contrary to those of the trial
court.52 The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave the party as she talked to him
politely and discreetly. The appellate court, on the other hand, held that Ms. Lim is liable for damages as she needlessly
embarrassed Mr. Reyes by telling him not to finish his food and to leave the place within hearing distance of the other guests.
Both courts, however, were in agreement that it was Dr. Filart’s invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower court’s findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,53 for-invitation-only, thrown for the hotel’s former Manager, a
Japanese national. Then came a person who was clearly uninvited (by the celebrant) 54 and who could not just disappear into the
crowd as his face is known by many, being an actor. While he was already spotted by the organizer of the party, Ms. Lim, the
very person who generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms. Lim, mindful of
the celebrant’s instruction to keep the party intimate, would naturally want to get rid of the "gate-crasher" in the most hush-hush
manner in order not to call attention to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the
celebrant, her former boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on Ms.
Lim’s ability to follow the instructions of the celebrant to invite only his close friends and some of the hotel’s personnel. Mr.
Reyes, upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any
satisfactory explanation why Ms. Lim would do that and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on
cross-examination, had unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was very close. Close
enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table? How close was she
when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and she shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many.55
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to ridicule and shame, it is
highly unlikely that she would shout at him from a very close distance. Ms. Lim having been in the hotel business for twenty
years wherein being polite and discreet are virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does
not inspire belief and is indeed incredible. Thus, the lower court was correct in observing that –
Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party was made such that they
nearly kissed each other, the request was meant to be heard by him only and there could have been no intention on her part to
cause embarrassment to him. It was plaintiff’s reaction to the request that must have made the other guests aware of what
transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take him out. 56
Moreover, another problem with Mr. Reyes’s version of the story is that it is unsupported. It is a basic rule in civil cases that he
who alleges proves. Mr. Reyes, however, had not presented any witness to back his story up. All his witnesses – Danny Rodinas,
Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart who invited him to the party. 57
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited, cannot be made liable to
pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither can her employer, Hotel Nikko, be held liable
as its liability springs from that of its employee.58
Article 19, known to contain what is commonly referred to as the principle of abuse of rights, 59 is not a panacea for all human
hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.1awphi1.nét
Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms enshrined in Article
19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible."60 The
object of this article, therefore, is to set certain standards which must be observed not only in the exercise of one’s rights but also
in the performance of one’s duties.61 These standards are the following: act with justice, give everyone his due and observe
honesty and good faith.62 Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the
following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring
another.63 When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20
Page 16 of 28 TORTS MEETING 5
pertains to damages arising from a violation of law64 which does not obtain herein as Ms. Lim was perfectly within her right to
ask Mr. Reyes to leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Article 2165 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but which is
contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure.66
A common theme runs through Articles 19 and 21,67 and that is, the act complained of must be intentional.68
As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven by animosity against him.
These two people did not know each other personally before the evening of 13 October 1994, thus, Mr. Reyes had nothing to
offer for an explanation for Ms. Lim’s alleged abusive conduct except the statement that Ms. Lim, being "single at 44 years old,"
had a "very strong bias and prejudice against (Mr. Reyes) possibly influenced by her associates in her work at the hotel with
foreign businessmen."69 The lameness of this argument need not be belabored. Suffice it to say that a complaint based on Articles
19 and 21 of the Civil Code must necessarily fail if it has nothing to recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and humane under the
circumstances. In this regard, we cannot put our imprimatur on the appellate court’s declaration that Ms. Lim’s act of personally
approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action
"predicated upon mere rudeness or lack of consideration of one person, which calls not only protection of human dignity but
respect of such dignity."70 Without proof of any ill-motive on her part, Ms. Lim’s act of by-passing Mrs. Filart cannot amount to
abusive conduct especially because she did inquire from Mrs. Filart’s companion who told her that Mrs. Filart did not invite Mr.
Reyes.71 If at all, Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be made answerable for
exemplary damages72 especially for the reason stated by the Court of Appeals. The Court of Appeals held –
Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in life.l^vvphi1.net This has to be
limited somewhere. In a democracy, such a limit must be established. Social equality is not sought by the legal provisions under
consideration, but due regard for decency and propriety (Code Commission, pp. 33-34). And by way of example or correction
for public good and to avert further commission of such acts, exemplary damages should be imposed upon appellees. 73
The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case and the evidence on
hand.l^vvphi1.net It is not disputed that at the time of the incident in question, Mr. Reyes was "an actor of long standing; a co-
host of a radio program over DZRH; a Board Member of the Music Singer Composer (MUSICO) chaired by popular singer
Imelda Papin; a showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of the KBL Party for Governor of
Bohol; and an awardee of a number of humanitarian organizations of the Philippines."74 During his direct examination on
rebuttal, Mr. Reyes stressed that he had income75 and nowhere did he say otherwise. On the other hand, the records are bereft of
any information as to the social and economic standing of petitioner Ruby Lim. Consequently, the conclusion reached by the
appellate court cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might have suffered through Ms.
Lim’s exercise of a legitimate right done within the bounds of propriety and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is GRANTED. The
Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED.
No costs.
SO ORDERED.
TORTS 54
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN
CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the
judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby
sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the
scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the
parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong
typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in
its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were
beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters
Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been
damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five
Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was
partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the
deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post
and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of
Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water
was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four
or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his
wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the
people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the
house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric
current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered
about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the
National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which
indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC
Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the
posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life
Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric
wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p.
64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the
NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of
Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the
body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired
from an in service training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was
setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met
two linemen on the way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he went
on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning
of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been
electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the
request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was
grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an
"electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on
Page 17 of 28 TORTS MEETING 5
the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the
cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis,
electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of
INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the
electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence of
Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property.
The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in
question. As a public service operator and in line with its business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as
floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up
of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of
Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely,
at the southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in
the eastern part near the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant at
the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte
National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the
intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see any cut or broken wires
in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died
of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no
doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the
body of the deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and
rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of
the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity
are more or less round in shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the
laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on
June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that
the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not
to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a
burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter
with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have
been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967.
After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in
moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay
alleged declarations of Ernesto de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon
"Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake
were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of
"assumption of risk" in the present case to bar private respondents from collecting damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of
fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner
company.
7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the
damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133,
Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may
be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings
for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private
respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the
fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro
who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first
degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972).
Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the
water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post,
moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he
nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns,"
and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire
of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case
when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a
burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up
with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1).
Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of
June 29, 1967. This Court has not been offered any sufficient reason to discredit the testimonies of these two young ladies.
They were one in the affirmation that the deceased, while wading in the waist-deep flood on Guerrero Street five or six
meters ahead of them, suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to
help, they were stopped by the sight of an electric wire dangling from a post and moving in snake-like fashion in the water.
Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that the water was grounded. These bits
of evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the declarations may be
considered part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae,
be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the
statements made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28
SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the
satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on
the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State,
53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the
same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not
presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is
part of the res gestae. Similarly, We considered part of the res gestae a conversation between two accused immediately after
commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an
actual witness to the instant when the deceased sank into the waist-deep water, he acted upon the call of help of Aida Bulong and
Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had
not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a
circumstance, it is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la Cruz's
being as anybody under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the
water was grounded from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream
"Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that
the statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere
opinion. On the contrary, his shout was a translation of an actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is
presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it
is necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955,
97 Phil. 953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe
Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la
Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on
cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)
Page 18 of 28 TORTS MEETING 5
The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly adverse to
private respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not
taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in
disposing the argument that petitioner be exonerated from liability since typhoons and floods are fortuitous events. While it is
true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said
eventuality which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took
place. We subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao
Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of
extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties
and the measures which defendant usuallyadopts to prevent hazards to life and limb. From these testimonies, the lower court
found "that the electric lines and other equipment of defendant corporation were properly maintained by a well-trained team
of lineman, technicians and engineers working around the clock to insure that these equipments were in excellent condition
at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on what the defendant's
employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the
occasion of the emergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of
the typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw
grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the
finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of
the franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for the delay
was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00
A.M. on June 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days after the typhoon,
the INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place but his man
reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr.
Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO
people to inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460,
465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his family for
refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29,
1967, extraordinary diligence requires a supplier of electricity to be in constant vigil to prevent or avoid any probable
incident that might imperil life or limb. The evidence does not show that defendant did that. On the contrary, evidence
discloses that there were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp.
24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"...
considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be
commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every
place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been
shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event. "When
an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury
would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to
note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding
typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972),
the deceased, accompanied by the former two, were on their way to the latter's grocery store "to see to it that the goods were not
flooded." As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the
unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is
excused from the force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an
emergency is found to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he
seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167).
Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to
petitioner's consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred
from recovering damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact, pointing to
the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and president-manager to the effect
that it had exercised the degree of diligence required of it in keeping its electric lines free from defects that may imperil life and
limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken
on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post
(petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on
what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and
not on the occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the
CA, which We have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership
of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to no other conclusion than that they were 'burns', and there was nothing else
in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company"
(supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines"
(Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out
in the early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the
ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The
foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming
the negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending typhoon, through radio
announcements. Even the fire department of the city announced the coming of the big flood. (pp. 532-534, TSN, March 13,
1975) At the INELCO irregularities in the flow of electric current were noted because "amperes of the switch volts were
moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut
off but the harm was done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the
electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p.
26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously
considered the factual circumstances at hand pursuant to its power to review questions of fact raised from the decision of the
Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in
actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages,
computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average
annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees. Pusuant
to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of
P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the respondent CA, the
charge of malice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and
speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no
penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it
is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to
P48,229.45 is hereby AFFIRMED.
SO ORDERED.

Page 19 of 28 TORTS MEETING 5

TORTS 55
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, 1991, reversing the contrary
decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza
Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring
in Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As
the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool
at the back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of
the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and
owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of
the "distal third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg
circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast
for a period of three months and would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the
former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was
the driver of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490),
filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver
Verena jointly liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was
based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the
Civil Code. The appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to
Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering
defendant-appellee Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate
cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety
of its passengers. He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner
further assails the award of moral damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for
quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva
and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the issue in
this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa
extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is
premised upon the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas
in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in
this case the common carrier, failed to transport his passenger safely to his destination. 2 In case of death or injuries to passengers,
Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless
they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily
shifts to the common carrier the burden of proof.
Page 20 of 28 TORTS MEETING 5
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for
the damage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between
the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is
no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-
existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the
law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the
Civil Code are those respecting the diligence required of common carriers with regard to the safety of passengers as well as the
presumption of negligence in cases of death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to
all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5, 6,
and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using
the utmost diligence of very cautious persons, with due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of
petitioner to prove that he had to observe extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence
of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several
factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters
from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the
R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to obstruct or impede the
passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct the free
passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the jeepney, a
violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any motor vehicle shall allow more passengers or more freight
or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were
exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury
sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also
true of petitioner's contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso
fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable.3 This requires that the following
requirements be present: (a) the cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the
debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the
highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this
contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semester of that
school year. She testified that she had no more intention of continuing with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical Education "because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left
foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the fracture side." She
likewise decided not to further pursue Physical Education as her major subject, because "my left leg . . . has a defect
already."
 Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article
2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one
of the items enumerated under Art. 2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases in
which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and
(2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that
petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner's admission in open
court that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of bad
faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was utterly
indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault
for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are
AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.
SO ORDERED.

Page 21 of 28 TORTS MEETING 5

TORTS 57
G.R. No. 138060 September 1, 2004
WILLIAM TIU, doing business under the name and style of "D’ Rough Riders," and VIRGILIO TE LAS
PIÑASpetitioners,
vs.
PEDRO A. ARRIESGADO, BENJAMIN CONDOR, SERGIO PEDRANO and PHILIPPINE PHOENIX SURETY AND
INSURANCE, INC., respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court from the Decision 1 of the Court of Appeals in CA-
G.R. CV No. 54354 affirming with modification the Decision2 of the Regional Trial Court, 7th Judicial Region, Cebu City,
Branch 20, in Civil Case No. CEB-5963 for breach of contract of carriage, damages and attorney’s fees, and the Resolution
dated February 26, 1999 denying the motion for reconsideration thereof.
The following facts are undisputed:
At about 10:00 p.m. of March 15, 1987, the cargo truck marked "Condor Hollow Blocks and General Merchandise" bearing
plate number GBP-675 was loaded with firewood in Bogo, Cebu and left for Cebu City. Upon reaching Sitio Aggies,
Poblacion, Compostela, Cebu, just as the truck passed over a bridge, one of its rear tires exploded. The driver, Sergio
Pedrano, then parked along the right side of the national highway and removed the damaged tire to have it vulcanized at a
nearby shop, about 700 meters away.3 Pedrano left his helper, Jose Mitante, Jr. to keep watch over the stalled vehicle, and
instructed the latter to place a spare tire six fathoms away4 behind the stalled truck to serve as a warning for oncoming
vehicles. The truck’s tail lights were also left on. It was about 12:00 a.m., March 16, 1987.
At about 4:45 a.m., D’ Rough Riders passenger bus with plate number PBP-724 driven by Virgilio Te Laspiñas was cruising
along the national highway of Sitio Aggies, Poblacion, Compostela, Cebu. The passenger bus was also bound for Cebu City, and
had come from Maya, Daanbantayan, Cebu. Among its passengers were the Spouses Pedro A. Arriesgado and Felisa Pepito
Arriesgado, who were seated at the right side of the bus, about three (3) or four (4) places from the front seat.
As the bus was approaching the bridge, Laspiñas saw the stalled truck, which was then about 25 meters away. 5 He applied the
breaks and tried to swerve to the left to avoid hitting the truck. But it was too late; the bus rammed into the truck’s left rear. The
impact damaged the right side of the bus and left several passengers injured. Pedro Arriesgado lost consciousness and suffered a
fracture in his right colles.6 His wife, Felisa, was brought to the Danao City Hospital. She was later transferred to the Southern
Island Medical Center where she died shortly thereafter.7
Respondent Pedro A. Arriesgado then filed a complaint for breach of contract of carriage, damages and attorney’s fees before the
Regional Trial Court of Cebu City, Branch 20, against the petitioners, D’ Rough Riders bus operator William Tiu and his driver,
Virgilio Te Laspiñas on May 27, 1987. The respondent alleged that the passenger bus in question was cruising at a fast and high
speed along the national road, and that petitioner Laspiñas did not take precautionary measures to avoid the accident.8 Thus:
6. That the accident resulted to the death of the plaintiff’s wife, Felisa Pepito Arriesgado, as evidenced by a Certificate of
Death, a xerox copy of which is hereto attached as integral part hereof and marked as ANNEX – "A", and physical injuries
to several of its passengers, including plaintiff himself who suffered a "COLLES FRACTURE RIGHT," per Medical
Certificate, a xerox copy of which is hereto attached as integral part hereof and marked as ANNEX – "B" hereof.
7. That due to the reckless and imprudent driving by defendant Virgilio Te Laspiñas of the said Rough Riders passenger bus,
plaintiff and his wife, Felisa Pepito Arriesgado, failed to safely reach their destination which was Cebu City, the proximate
cause of which was defendant-driver’s failure to observe utmost diligence required of a very cautious person under all
circumstances.
8. That defendant William Tiu, being the owner and operator of the said Rough Riders passenger bus which figured in the
said accident, wherein plaintiff and his wife were riding at the time of the accident, is therefore directly liable for the breach
of contract of carriage for his failure to transport plaintiff and his wife safely to their place of destination which was Cebu
City, and which failure in his obligation to transport safely his passengers was due to and in consequence of his failure to
exercise the diligence of a good father of the family in the selection and supervision of his employees, particularly
defendant-driver Virgilio Te Laspiñas.9
The respondent prayed that judgment be rendered in his favor and that the petitioners be condemned to pay the following
damages:
1). To pay to plaintiff, jointly and severally, the amount of ₱30,000.00 for the death and untimely demise of plaintiff’s wife,
Felisa Pepito Arriesgado;
2). To pay to plaintiff, jointly and severally, the amount of ₱38,441.50, representing actual expenses incurred by the plaintiff
in connection with the death/burial of plaintiff’s wife;
3). To pay to plaintiff, jointly and severally, the amount of ₱1,113.80, representing medical/hospitalization expenses
incurred by plaintiff for the injuries sustained by him;
4). To pay to plaintiff, jointly and severally, the amount of ₱50,000.00 for moral damages;
5). To pay to plaintiff, jointly and severally, the amount of ₱50,000.00 by way of exemplary damages;
Page 22 of 28 TORTS MEETING 5
6). To pay to plaintiff, jointly and severally, the amount of ₱20,000.00 for attorney’s fees;
7). To pay to plaintiff, jointly and severally, the amount of ₱5,000.00 for litigation expenses.
PLAINTIFF FURTHER PRAYS FOR SUCH OTHER RELIEFS AND REMEDIES IN LAW AND EQUITY. 10
The petitioners, for their part, filed a Third-Party Complaint11 on August 21, 1987 against the following: respondent Philippine
Phoenix Surety and Insurance, Inc. (PPSII), petitioner Tiu’s insurer; respondent Benjamin Condor, the registered owner of the
cargo truck; and respondent Sergio Pedrano, the driver of the truck. They alleged that petitioner Laspiñas was negotiating the
uphill climb along the national highway of Sitio Aggies, Poblacion, Compostela, in a moderate and normal speed. It was further
alleged that the truck was parked in a slanted manner, its rear portion almost in the middle of the highway, and that no early
warning device was displayed. Petitioner Laspiñas promptly applied the brakes and swerved to the left to avoid hitting the truck
head-on, but despite his efforts to avoid damage to property and physical injuries on the passengers, the right side portion of the
bus hit the cargo truck’s left rear. The petitioners further alleged, thus:
5. That the cargo truck mentioned in the aforequoted paragraph is owned and registered in the name of the third-party
defendant Benjamin Condor and was left unattended by its driver Sergio Pedrano, one of the third-party defendants, at the
time of the incident;
6. That third-party defendant Sergio Pedrano, as driver of the cargo truck with marked (sic) "Condor Hollow Blocks &
General Merchandise," with Plate No. GBP-675 which was recklessly and imprudently parked along the national highway
of Compostela, Cebu during the vehicular accident in question, and third-party defendant Benjamin Condor, as the
registered owner of the cargo truck who failed to exercise due diligence in the selection and supervision of third-party
defendant Sergio Pedrano, are jointly and severally liable to the third-party plaintiffs for whatever liability that may be
adjudged against said third-party plaintiffs or are directly liable of (sic) the alleged death of plaintiff’s wife;
7. That in addition to all that are stated above and in the answer which are intended to show reckless imprudence on the part
of the third-party defendants, the third-party plaintiffs hereby declare that during the vehicular accident in question, third-
party defendant was clearly violating Section 34, par. (g) of the Land Transportation and Traffic Code…
…
10. That the aforesaid passenger bus, owned and operated by third-party plaintiff William Tiu, is covered by a common
carrier liability insurance with Certificate of Cover No. 054940 issued by Philippine Phoenix Surety and Insurance, Inc.,
Cebu City Branch, in favor of third-party plaintiff William Tiu which covers the period from July 22, 1986 to July 22, 1987
and that the said insurance coverage was valid, binding and subsisting during the time of the aforementioned incident
(Annex "A" as part hereof);
11. That after the aforesaid alleged incident, third-party plaintiff notified third-party defendant Philippine Phoenix Surety
and Insurance, Inc., of the alleged incident hereto mentioned, but to no avail;
12. That granting, et arguendo et arguendi, if herein third-party plaintiffs will be adversely adjudged, they stand to pay
damages sought by the plaintiff and therefore could also look up to the Philippine Phoenix Surety and Insurance, Inc., for
contribution, indemnification and/or reimbursement of any liability or obligation that they might [be] adjudged per
insurance coverage duly entered into by and between third-party plaintiff William Tiu and third-party defendant Philippine
Phoenix Surety and Insurance, Inc.;…12
The respondent PPSII, for its part, admitted that it had an existing contract with petitioner Tiu, but averred that it had already
attended to and settled the claims of those who were injured during the incident. 13 It could not accede to the claim of respondent
Arriesgado, as such claim was way beyond the scheduled indemnity as contained in the contract of insurance. 14
After the parties presented their respective evidence, the trial court ruled in favor of respondent Arriesgado. The dispositive
portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff as against defendant William Tiu
ordering the latter to pay the plaintiff the following amounts:
1 - The sum of FIFTY THOUSAND PESOS (₱50,000.00) as moral damages;
2 - The sum of FIFTY THOUSAND PESOS (₱50,000.00) as exemplary damages;
3 - The sum of THIRTY-EIGHT THOUSAND FOUR HUNDRED FORTY-ONE PESOS (₱38,441.00) as actual
damages;
4 - The sum of TWENTY THOUSAND PESOS (₱20,000.00) as attorney’s fees;
5 - The sum of FIVE THOUSAND PESOS (₱5,000.00) as costs of suit;
SO ORDERED.15
According to the trial court, there was no dispute that petitioner William Tiu was engaged in business as a common carrier, in
view of his admission that D’ Rough Rider passenger bus which figured in the accident was owned by him; that he had been
engaged in the transportation business for 25 years with a sole proprietorship; and that he owned 34 buses. The trial court ruled
that if petitioner Laspiñas had not been driving at a fast pace, he could have easily swerved to the left to avoid hitting the truck,
thus, averting the unfortunate incident. It then concluded that petitioner Laspiñas was negligent.
The trial court also ruled that the absence of an early warning device near the place where the truck was parked was not
sufficient to impute negligence on the part of respondent Pedrano, since the tail lights of the truck were fully on, and the vicinity
was well lighted by street lamps.16 It also found that the testimony of petitioner Tiu, that he based the selection of his driver
Laspiñas on efficiency and in-service training, and that the latter had been so far an efficient and good driver for the past six
years of his employment, was insufficient to prove that he observed the diligence of a good father of a family in the selection and
supervision of his employees.
After the petitioner’s motion for reconsideration of the said decision was denied, the petitioners elevated the case to the Court of
Appeals on the following issues:
I WHETHER THIRD PARTY DEFENDANT SERGIO PEDRANO WAS RECKLESS AND IMPRUDENT WHEN HE
PARKED THE CARGO TRUCK IN AN OBLIQUE MANNER;
II WHETHER THE THIRD PARTY DEFENDANTS ARE JOINTLY AND SEVERALLY LIABLE DIRECTLY TO
PLAINTIFF-APPELLEE OR TO DEFENDANTS-APPELLANTS FOR WHATEVER LIABILITY THAT MAY BE
ADJUDGED TO THE SAID DEFENDANTS-APPELLANTS;
III WHETHER DEFENDANT-APPELLANT VIRGILIO TE LASPIÑAS WAS GUILTY OF GROSS NEGLIGENCE;
IV WHETHER DEFENDANT-APPELLANT WILLIAM TIU HAD EXERCISED THE DUE DILIGENCE OF A GOOD
FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF HIS DRIVERS;
V GRANTING FOR THE SAKE OF ARGUMENT THAT DEFENDANT-APPELLANT WILLIAM TIU IS LIABLE TO
PLAINTIFF-APPELLEE, WHETHER THERE IS LEGAL AND FACTUAL BASIS IN AWARDING EXCESSIVE
MORAL DAMAGES, EX[E]MPLARY DAMAGES, ATTORNEY’S FEES AND LITIGATION EXPENSES TO
PLAINTIFF-APPELLEE;
VI WHETHER THIRD PARTY DEFENDANT PHILIPPINE PHOENIX SURETY AND INSURANCE, INC. IS LIABLE
TO DEFENDANT- APPELLANT WILLIAM TIU.17
The appellate court rendered judgment affirming the trial court’s decision with the modification that the awards for moral and
exemplary damages were reduced to ₱25,000. The dispositive portion reads:
WHEREFORE, the appealed Decision dated November 6, 1995 is hereby MODIFIED such that the awards for moral and
exemplary damages are each reduced to ₱25,000.00 or a total of ₱50,000.00 for both. The judgment is AFFIRMED in all
other respects.
SO ORDERED.18
According to the appellate court, the action of respondent Arriesgado was based not on quasi-delict but on breach of contract of
carriage. As a common carrier, it was incumbent upon petitioner Tiu to prove that extraordinary diligence was observed in
ensuring the safety of passengers during transportation. Since the latter failed to do so, he should be held liable for respondent
Arriesgado’s claim. The CA also ruled that no evidence was presented against the respondent PPSII, and as such, it could not be
held liable for respondent Arriesgado’s claim, nor for contribution, indemnification and/or reimbursement in case the petitioners
were adjudged liable.
The petitioners now come to this Court and ascribe the following errors committed by the appellate court:
I. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING RESPONDENTS BENJAMIN CONDOR
AND SERGIO PEDRANO GUILTY OF NEGLIGENCE AND HENCE, LIABLE TO RESPONDENT PEDRO A.
ARRIESGADO OR TO PETITIONERS FOR WHATEVER LIABILITY THAT MAY BE ADJUDGED AGAINST
THEM.
II. THE HONORABLE COURT OF APPEALS ERRED IN FINDING PETITIONERS GUILTY OF NEGLIGENCE AND
HENCE, LIABLE TO RESPONDENT PEDRO A. ARRIESGADO.
III. THE HONORABLE COURT OF APPEALS ERRED IN FINDING PETITIONER WILLIAM TIU LIABLE FOR
EXEMPLARY DAMAGES, ATTORNEY’S FEES AND LITIGATION EXPENSES.
IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING RESPONDENT PHILIPPINE PHOENIX
SURETY AND INSURANCE, INC. LIABLE TO RESPONDENT PEDRO A. ARRIESGADO OR TO PETITIONER
WILLIAM TIU.19
According to the petitioners, the appellate court erred in failing to appreciate the absence of an early warning device and/or built-
in reflectors at the front and back of the cargo truck, in clear violation of Section 34, par. (g) of the Land Transportation and
Traffic Code. They aver that such violation is only a proof of respondent Pedrano’s negligence, as provided under Article 2185
of the New Civil Code. They also question the appellate court’s failure to take into account that the truck was parked in an
oblique manner, its rear portion almost at the center of the road. As such, the proximate cause of the incident was the gross
recklessness and imprudence of respondent Pedrano, creating the presumption of negligence on the part of respondent Condor in
supervising his employees, which presumption was not rebutted. The petitioners then contend that respondents Condor and
Pedrano should be held jointly and severally liable to respondent Arriesgado for the payment of the latter’s claim.
The petitioners, likewise, aver that expert evidence should have been presented to prove that petitioner Laspiñas was driving at a
very fast speed, and that the CA could not reach such conclusion by merely considering the damages on the cargo truck. It was
also pointed out that petitioner Tiu presented evidence that he had exercised the diligence of a good father of a family in the
selection and supervision of his drivers.
The petitioners further allege that there is no legal and factual basis to require petitioner Tiu to pay exemplary damages as no
evidence was presented to show that the latter acted in a fraudulent, reckless and oppressive manner, or that he had an active
participation in the negligent act of petitioner Laspiñas.
Page 23 of 28 TORTS MEETING 5
Finally, the petitioners contend that respondent PPSII admitted in its answer that while it had attended to and settled the claims
of the other injured passengers, respondent Arriesgado’s claim remained unsettled as it was beyond the scheduled indemnity
under the insurance contract. The petitioners argue that said respondent PPSII should have settled the said claim in accordance
with the scheduled indemnity instead of just denying the same.
On the other hand, respondent Arriesgado argues that two of the issues raised by the petitioners involved questions of fact, not
reviewable by the Supreme Court: the finding of negligence on the part of the petitioners and their liability to him; and the award
of exemplary damages, attorney’s fees and litigation expenses in his favor. Invoking the principle of equity and justice,
respondent Arriesgado pointed out that if there was an error to be reviewed in the CA decision, it should be geared towards the
restoration of the moral and exemplary damages to ₱50,000 each, or a total of ₱100,000 which was reduced by the Court of
Appeals to ₱25,000 each, or a total of only ₱50,000.
Respondent Arriesgado also alleged that respondents Condor and Pedrano, and respondent Phoenix Surety, are parties with
whom he had no contract of carriage, and had no cause of action against. It was pointed out that only the petitioners needed to be
sued, as driver and operator of the ill-fated bus, on account of their failure to bring the Arriesgado Spouses to their place of
destination as agreed upon in the contract of carriage, using the utmost diligence of very cautious persons with due regard for all
circumstances.
Respondents Condor and Pedrano point out that, as correctly ruled by the Court of Appeals, the proximate cause of the
unfortunate incident was the fast speed at which petitioner Laspiñas was driving the bus owned by petitioner Tiu. According to
the respondents, the allegation that the truck was not equipped with an early warning device could not in any way have
prevented the incident from happening. It was also pointed out that respondent Condor had always exercised the due diligence
required in the selection and supervision of his employees, and that he was not a party to the contract of carriage between the
petitioners and respondent Arriesgado.
Respondent PPSII, for its part, alleges that contrary to the allegation of petitioner Tiu, it settled all the claims of those injured in
accordance with the insurance contract. It further avers that it did not deny respondent Arriesgado’s claim, and emphasizes that
its liability should be within the scheduled limits of indemnity under the said contract. The respondent concludes that while it is
true that insurance contracts are contracts of indemnity, the measure of the insurer’s liability is determined by the insured’s
compliance with the terms thereof.
The Court’s Ruling
At the outset, it must be stressed that this Court is not a trier of facts. 20 Factual findings of the Court of Appeals are final and may
not be reviewed on appeal by this Court, except when the lower court and the CA arrived at diverse factual findings.21 The
petitioners in this case assail the finding of both the trial and the appellate courts that petitioner Laspiñas was driving at a very
fast speed before the bus owned by petitioner Tiu collided with respondent Condor’s stalled truck. This is clearly one of fact, not
reviewable by the Court in a petition for review under Rule 45. 22
On this ground alone, the petition is destined to fail.
However, considering that novel questions of law are likewise involved, the Court resolves to examine and rule on the merits of
the case.
Petitioner Laspiñas
Was negligent in driving
The Ill-fated bus
In his testimony before the trial court, petitioner Laspiñas claimed that he was traversing the two-lane road at Compostela, Cebu
at a speed of only forty (40) to fifty (50) kilometers per hour before the incident occurred. 23 He also admitted that he saw the
truck which was parked in an "oblique position" at about 25 meters before impact,24and tried to avoid hitting it by swerving to
the left. However, even in the absence of expert evidence, the damage sustained by the truck 25 itself supports the finding of both
the trial court and the appellate court, that the D’ Rough Rider bus driven by petitioner Laspiñas was traveling at a fast pace.
Since he saw the stalled truck at a distance of 25 meters, petitioner Laspiñas had more than enough time to swerve to his left to
avoid hitting it; that is, if the speed of the bus was only 40 to 50 kilometers per hour as he claimed. As found by the Court of
Appeals, it is easier to believe that petitioner Laspiñas was driving at a very fast speed, since at 4:45 a.m., the hour of the
accident, there were no oncoming vehicles at the opposite direction. Petitioner Laspiñas could have swerved to the left lane with
proper clearance, and, thus, could have avoided the truck.26 Instinct, at the very least, would have prompted him to apply the
breaks to avert the impending disaster which he must have foreseen when he caught sight of the stalled truck. As we had
occasion to reiterate:
A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent,
if not from instinct, then through fear of recurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable abandon. Otherwise, his own person, rights and
property, and those of his fellow beings, would ever be exposed to all manner of danger and injury. 27
We agree with the following findings of the trial court, which were affirmed by the CA on appeal:
A close study and evaluation of the testimonies and the documentary proofs submitted by the parties which have direct
bearing on the issue of negligence, this Court as shown by preponderance of evidence that defendant Virgilio Te Laspiñas
failed to observe extraordinary diligence as a driver of the common carrier in this case. It is quite hard to accept his version
 of the incident that he did not see at a reasonable distance ahead the cargo truck that was parked when the Rough Rider
[Bus] just came out of the bridge which is on an (sic) [more] elevated position than the place where the cargo truck was
parked. With its headlights fully on, defendant driver of the Rough Rider was in a vantage position to see the cargo truck
ahead which was parked and he could just easily have avoided hitting and bumping the same by maneuvering to the left
without hitting the said cargo truck. Besides, it is (sic) shown that there was still much room or space for the Rough Rider to
pass at the left lane of the said national highway even if the cargo truck had occupied the entire right lane thereof. It is not
true that if the Rough Rider would proceed to pass through the left lane it would fall into a canal considering that there was
much space for it to pass without hitting and bumping the cargo truck at the left lane of said national highway. The records,
further, showed that there was no incoming vehicle at the opposite lane of the national highway which would have
prevented the Rough Rider from not swerving to its left in order to avoid hitting and bumping the parked cargo truck. But
the evidence showed that the Rough Rider instead of swerving to the still spacious left lane of the national highway plowed
directly into the parked cargo truck hitting the latter at its rear portion; and thus, the (sic) causing damages not only to herein
plaintiff but to the cargo truck as well. 28
Indeed, petitioner Laspiñas’ negligence in driving the bus is apparent in the records. By his own admission, he had just passed a
bridge and was traversing the highway of Compostela, Cebu at a speed of 40 to 50 kilometers per hour before the collision
occurred. The maximum speed allowed by law on a bridge is only 30 kilometers per hour.29And, as correctly pointed out by the
trial court, petitioner Laspiñas also violated Section 35 of the Land Transportation and Traffic Code, Republic Act No. 4136, as
amended:1avvphil.net
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 or any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such
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.30
Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was
violating any traffic regulation.31
Petitioner Tiu failed to
Overcome the presumption
Of negligence against him as
One engaged in the business
Of common carriage
The rules which common carriers should observe as to the safety of their passengers are set forth in the Civil Code, Articles
1733,32 175533 and 1756.34 In this case, respondent Arriesgado and his deceased wife contracted with petitioner Tiu, as owner
and operator of D’ Rough Riders bus service, for transportation from Maya, Daanbantayan, Cebu, to Cebu City for the price of
₱18.00.35 It is undisputed that the respondent and his wife were not safely transported to the destination agreed upon. In actions
for breach of contract, only the existence of such contract, and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination are the matters that need to be proved. 36 This is because under the said contract
of carriage, the petitioners assumed the express obligation to transport the respondent and his wife to their destination safely and
to observe extraordinary diligence with due regard for all circumstances. 37 Any injury suffered by the passengers in the course
thereof is immediately attributable to the negligence of the carrier.38 Upon the happening of the accident, the presumption of
negligence at once arises, and it becomes the duty of a common carrier to prove that he observed extraordinary diligence in the
care of his passengers.39 It must be stressed that in requiring the highest possible degree of diligence from common carriers and
in creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers.40
While evidence may be submitted to overcome such presumption of negligence, it must be shown that the carrier observed the
required extraordinary diligence, which means that the carrier must show the utmost diligence of very cautious persons as far as
human care and foresight can provide, or that the accident was caused by fortuitous event. 41 As correctly found by the trial court,
petitioner Tiu failed to conclusively rebut such presumption. The negligence of petitioner Laspiñas as driver of the passenger bus
is, thus, binding against petitioner Tiu, as the owner of the passenger bus engaged as a common carrier. 42
The Doctrine of
Last Clear Chance
Is Inapplicable in the
Case at Bar
Contrary to the petitioner’s contention, the principle of last clear chance is inapplicable in the instant case, as it only applies in a
suit between the owners and drivers of two colliding vehicles. It does not arise where a passenger demands responsibility from
the carrier to enforce its contractual obligations, for it would be inequitable to exempt the negligent driver and its owner on the
ground that the other driver was likewise guilty of negligence.43 The common law notion of last clear chance permitted courts to
grant recovery to a plaintiff who has also been negligent provided that the defendant had the last clear chance to avoid the
casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law of last clear chance doctrine has
Page 24 of 28 TORTS MEETING 5
to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff,
has itself been rejected, as it has been in Article 2179 of the Civil Code. 44
Thus, petitioner Tiu cannot escape liability for the death of respondent Arriesgado’s wife due to the negligence of petitioner
Laspiñas, his employee, on this score.
Respondents Pedrano and
Condor were likewise
Negligent
In Phoenix Construction, Inc. v. Intermediate Appellate Court, 45 where therein respondent Dionisio sustained injuries when his
vehicle rammed against a dump truck parked askew, the Court ruled that the improper parking of a dump truck without any
warning lights or reflector devices created an unreasonable risk for anyone driving within the vicinity, and for having created
such risk, the truck driver must be held responsible. In ruling against the petitioner therein, the Court elucidated, thus:
… In our view, Dionisio’s negligence, although later in point of time than the truck driver’s negligence, and therefore
closer to the accident, was not an efficient intervening or independent cause. What the petitioners describe as an
"intervening cause" was no more than a foreseeable consequence of the risk created by the negligent manner in which
the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio’s negligence was not that of an independent and overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of
liability. …
…
We hold that private respondent Dionisio’s negligence was "only contributory," that the "immediate and proximate
cause" of the injury remained the truck driver’s "lack of due care."… 46
In this case, both the trial and the appellate courts failed to consider that respondent Pedrano was also negligent in leaving the
truck parked askew without any warning lights or reflector devices to alert oncoming vehicles, and that such failure created the
presumption of negligence on the part of his employer, respondent Condor, in supervising his employees properly and
adequately. As we ruled in Poblete v. Fabros:47
It is such a firmly established principle, as to have virtually formed part of the law itself, that the negligence of the employee
gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and
supervision of employee. The theory of presumed negligence, in contrast with the American doctrine of respondeat superior,
where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible
from the last paragraph of Article 2180 of the Civil Code which provides that the responsibility therein mentioned shall
cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages. … 48
The petitioners were correct in invoking respondent Pedrano’s failure to observe Article IV, Section 34(g) of the Rep. Act No.
4136, which provides:1avvphil.net
(g) Lights when parked or disabled. – Appropriate parking lights or flares visible one hundred meters away shall be
displayed at a corner of the vehicle whenever such vehicle is parked on highways or in places that are not well-lighted or is
placed in such manner as to endanger passing traffic.
The manner in which the truck was parked clearly endangered oncoming traffic on both sides, considering that the tire blowout
which stalled the truck in the first place occurred in the wee hours of the morning. The Court can only now surmise that the
unfortunate incident could have been averted had respondent Condor, the owner of the truck, equipped the said vehicle with
lights, flares, or, at the very least, an early warning device. 49 Hence, we cannot subscribe to respondents Condor and Pedrano’s
claim that they should be absolved from liability because, as found by the trial and appellate courts, the proximate cause of the
collision was the fast speed at which petitioner Laspiñas drove the bus. To accept this proposition would be to come too close to
wiping out the fundamental principle of law that a man must respond for the foreseeable consequences of his own negligent act
or omission. Indeed, our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them
among its members. To accept this proposition would be to weaken the very bonds of society.50
The Liability of
Respondent PPSII
as Insurer
The trial court in this case did not rule on the liability of respondent PPSII, while the appellate court ruled that, as no evidence
was presented against it, the insurance company is not liable.
A perusal of the records will show that when the petitioners filed the Third-Party Complaint against respondent PPSII, they
failed to attach a copy of the terms of the insurance contract itself. Only Certificate of Cover No. 054940 51 issued in favor of
"Mr. William Tiu, Lahug, Cebu City" signed by Cosme H. Boniel was appended to the third-party complaint. The date of
issuance, July 22, 1986, the period of insurance, from July 22, 1986 to July 22, 1987, as well as the following items, were also
indicated therein:
SCHEDULED VEHICLE
 motor vehicles. The victims and/or their dependents are assured of immediate financial assistance, regardless of the financial
MODEL MAKE TYPE OF COLOR BLT FILE NO. capacity of motor vehicle owners.61 As the Court, speaking through Associate Justice Leonardo A. Quisumbing, explained in
Isuzu Forward BODY blue mixed Government Service Insurance System v. Court of Appeals:62
Bus However, although the victim may proceed directly against the insurer for indemnity, the third party liability is only up to
the extent of the insurance policy and those required by law. While it is true that where the insurance contract provides for
PLATE SERIAL/CHASSIS MOTOR NO. AUTHORIZED UNLADEN indemnity against liability to third persons, and such persons can directly sue the insurer, the direct liability of the insurer
NO. NO. 677836 CAPACITY WEIGHT under indemnity contracts against third party liability does not mean that the insurer can be held liable in solidum with the
PBP-724 SER450-1584124 50 6 Cyls. Kgs. insured and/or the other parties found at fault. For the liability of the insurer is based on contract; that of the insured carrier
or vehicle owner is based on tort. …
Obviously, the insurer could be held liable only up to the extent of what was provided for by the contract of insurance, in
SECTION 1/11 *LIMITS OF LIABILITY PREMIUMS PAID accordance with the CMVLI law. At the time of the incident, the schedule of indemnities for death and bodily injuries,
₱50,000.00 ₱540.0052 professional fees and other charges payable under a CMVLI coverage was provided for under the Insurance Memorandum
A. THIRD PARTY LIABILITY Circular (IMC) No. 5-78 which was approved on November 10, 1978. As therein provided, the maximum indemnity for
death was twelve thousand (₱12,000.00) pesos per victim. The schedules for medical expenses were also provided by said
IMC, specifically in paragraphs (C) to (G).63
B. PASSENGER LIABILITY Per Person Per Accident
₱12,000.00 ₱50,000 Damages to be
Awarded
In its Answer53 to the Third-Party Complaint, the respondent PPSII admitted the existence of the contract of insurance, in view The trial court correctly awarded moral damages in the amount of ₱50,000 in favor of respondent Arriesgado. The award of
of its failure to specifically deny the same as required under then Section 8(a), Rule 8 of the Rules of Court, 54 which reads: exemplary damages by way of example or correction of the public good,64 is likewise in order. As the Court ratiocinated in
Sec. 8. How to contest genuineness of such documents. When an action or defense is founded upon a written instrument Kapalaran Bus Line v. Coronado:65
copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution …While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of
of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth cargo carried by a common carrier, they are not the only persons that the law seeks to benefit. For if common carriers
what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a carefully observed the statutory standard of extraordinary diligence in respect of their own passengers, they cannot help but
party to the instrument or when compliance with an order for inspection of the original instrument is refused. simultaneously benefit pedestrians and the passengers of other vehicles who are equally entitled to the safe and convenient
In fact, respondent PPSII did not dispute the existence of such contract, and admitted that it was liable thereon. It claimed, use of our roads and highways. The law seeks to stop and prevent the slaughter and maiming of people (whether passengers
however, that it had attended to and settled the claims of those injured during the incident, and set up the following as special or not) on our highways and buses, the very size and power of which seem to inflame the minds of their drivers. Article
affirmative defenses: 2231 of the Civil Code explicitly authorizes the imposition of exemplary damages in cases of quasi-delicts "if the defendant
Third party defendant Philippine Phoenix Surety and Insurance, Inc. hereby reiterates and incorporates by way of reference acted with gross negligence."…66
the preceding paragraphs and further states THAT:- The respondent Pedro A. Arriesgado, as the surviving spouse and heir of Felisa Arriesgado, is entitled to indemnity in the
8. It has attended to the claims of Vincent Canales, Asuncion Batiancila and Neptali Palces who sustained injuries amount of ₱50,000.00.67
during the incident in question. In fact, it settled financially their claims per vouchers duly signed by them and they duly The petitioners, as well as the respondents Benjamin Condor and Sergio Pedrano are jointly and severally liable for said amount,
executed Affidavit[s] of Desistance to that effect, xerox copies of which are hereto attached as Annexes 1, 2, 3, 4, 5, and conformably with the following pronouncement of the Court in Fabre, Jr. vs. Court of Appeals: 68
6 respectively; The same rule of liability was applied in situations where the negligence of the driver of the bus on which plaintiff was
9. With respect to the claim of plaintiff, herein answering third party defendant through its authorized insurance adjuster riding concurred with the negligence of a third party who was the driver of another vehicle, thus causing an accident. In
attended to said claim. In fact, there were negotiations to that effect. Only that it cannot accede to the demand of said Anuran v. Buño, Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation
claimant considering that the claim was way beyond the scheduled indemnity as per contract entered into with third v. Court of Appeals, the bus company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly
party plaintiff William Tiu and third party defendant (Philippine Phoenix Surety and Insurance, Inc.). Third party and severally held liable to the injured passenger or the latter’s heirs. The basis of this allocation of liability was explained
Plaintiff William Tiu knew all along the limitation as earlier stated, he being an old hand in the transportation in Viluan v. Court of Appeals, thus:
business;55… "Nor should it make difference that the liability of petitioner [bus owner] springs from contract while that of
Considering the admissions made by respondent PPSII, the existence of the insurance contract and the salient terms thereof respondents [owner and driver of other vehicle] arises from quasi-delict. As early as 1913, we already ruled in Gutierrez
cannot be dispatched. It must be noted that after filing its answer, respondent PPSII no longer objected to the presentation of vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the negligence of the driver of the bus on which
evidence by respondent Arriesgado and the insured petitioner Tiu. Even in its Memorandum 56 before the Court, respondent he was riding and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and
PPSII admitted the existence of the contract, but averred as follows: severally liable for damages. Some members of the Court, though, are of the view that under the circumstances they are
Petitioner Tiu is insisting that PPSII is liable to him for contribution, indemnification and/or reimbursement. This has no liable on quasi-delict."69
basis under the contract. Under the contract, PPSII will pay all sums necessary to discharge liability of the insured subject to IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the Court of Appeals
the limits of liability but not to exceed the limits of liability as so stated in the contract. Also, it is stated in the contract that is AFFIRMED with MODIFICATIONS:
in the event of accident involving indemnity to more than one person, the limits of liability shall not exceed the aggregate (1) Respondent Philippine Phoenix Surety and Insurance, Inc. and petitioner William Tiu are ORDERED to pay, jointly and
amount so specified by law to all persons to be indemnified.57 severally, respondent Pedro A. Arriesgado the total amount of ₱13,113.80;
As can be gleaned from the Certificate of Cover, such insurance contract was issued pursuant to the Compulsory Motor Vehicle (2) The petitioners and the respondents Benjamin Condor and Sergio Pedrano are ORDERED to pay, jointly and severally,
Liability Insurance Law. It was expressly provided therein that the limit of the insurer’s liability for each person was ₱12,000, respondent Pedro A. Arriesgado ₱50,000.00 as indemnity; ₱26,441.50 as actual damages; ₱50,000.00 as moral damages;
while the limit per accident was pegged at ₱50,000. An insurer in an indemnity contract for third party liability is directly liable ₱50,000.00 as exemplary damages; and ₱20,000.00 as attorney’s fees.
to the injured party up to the extent specified in the agreement but it cannot be held solidarily liable beyond that amount. 58 The SO ORDERED.
respondent PPSII could not then just deny petitioner Tiu’s claim; it should have paid ₱12,000 for the death of Felisa
Arriesgado,59 and respondent Arriesgado’s hospitalization expenses of ₱1,113.80, which the trial court found to have been duly
supported by receipts. The total amount of the claims, even when added to that of the other injured passengers which the
respondent PPSII claimed to have settled,60 would not exceed the ₱50,000 limit under the insurance agreement.
Indeed, the nature of Compulsory Motor Vehicle Liability Insurance is such that it is primarily intended to provide compensation
for the death or bodily injuries suffered by innocent third parties or passengers as a result of the negligent operation and use of

Page 25 of 28 TORTS MEETING 5

TORTS 58 3) P100,000.00 as exemplary damages; and
G.R. No. 190022 February 15, 2012 4) P20,000.00 for Attorney’s fees.
PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN SAGA, Petitioners, c) HECTOR VIZCARA:
vs. 1) P50,000.00 as indemnity for the death of Samuel Vizcara;
PURIFICACION VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD, HECTOR VIZCARA, JOEL 2) P200,000.00 as moral damages;
VIZCARA and DOMINADOR ANTONIO, Respondents. 3) P100,000.00 as exemplary damages; and
DECISION 4) P20,000.00 for Attorney’s fees.
REYES, J.: d) CRESENCIA NATIVIDAD:
Nature of the Petition 1) P50,000.00 as indemnity for the death of Crispin Natividad;
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, seeking to annul and 2) P200,000.00 as moral damages;
set aside the Decision1 dated July 21, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 90021, which affirmed with 3) P100,000.00 as exemplary damages; and
modification the Decision2 dated March 20, 2007 of the Regional Trial Court (RTC), Branch 40, Palayan City, and 4) P20,000.00 for Attorney’s fees.
Resolution3 dated October 26, 2009, which denied the petitioners’ motion for reconsideration. e) JOEL VIZCARA
The Antecedent Facts 1) P9,870.00 as reimbursement for his actual expenses;
On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara (Reynaldo) was driving a passenger jeepney headed 2) P50,000.00 as moral damages;
towards Bicol to deliver onion crops, with his companions, namely, Cresencio Vizcara (Cresencio), Crispin Natividad (Crispin), 3) P25,000.00 as exemplary damages; and
Samuel Natividad (Samuel), Dominador Antonio (Dominador) and Joel Vizcara (Joel). While crossing the railroad track in 4) P10,000.00 for Attorney’s fees.
Tiaong, Quezon, a Philippine National Railways (PNR) train, then being operated by respondent Japhet Estranas (Estranas), f) DOMINADOR ANTONIO
suddenly turned up and rammed the passenger jeepney. The collision resulted to the instantaneous death of Reynaldo, Cresencio, 1) P63,427.00 as reimbursement for his actual expenses;
Crispin, and Samuel. On the other hand, Dominador and Joel, sustained serious physical injuries. 4 2) P50,000.00 as moral damages;
At the time of the accident, there was no level crossing installed at the railroad crossing. Additionally, the "Stop, Look and 3) P25,000.00 as exemplary damages; and
Listen" signage was poorly maintained. The "Stop" signage was already faded while the "Listen" signage was partly blocked by 4) P10,000.00 for Attorney’s fees.
another signboard.5 and
On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the heirs of the deceased victims, 2. Costs of suit.
namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad and Hector Vizcara, filed an action for damages against SO ORDERED.9
PNR, Estranas and Ben Saga, the alternate driver of the train, before the RTC of Palayan City. The case was raffled to Branch 40 The Ruling of the CA
and was docketed as Civil Case No. 0365-P. In their complaint, the respondents alleged that the proximate cause of the fatalities Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21, 2009, the CA rendered the assailed
and serious physical injuries sustained by the victims of the accident was the petitioners’ gross negligence in not providing decision, affirming the RTC decision with modification with respect to the amount of damages awarded to the respondents. The
adequate safety measures to prevent injury to persons and properties. They pointed out that in the railroad track of Tiaong, CA disposed, thus:
Quezon where the accident happened, there was no level crossing bar, lighting equipment or bell installed to warn motorists of WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED WITH MODIFICATION, as
the existence of the track and of the approaching train. They concluded their complaint with a prayer for actual, moral and follows:
compensatory damages, as well as attorney’s fees.6 (1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment expenses to PURIFICACION
For their part, the petitioners claimed that they exercised due diligence in operating the train and monitoring its roadworthiness. VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate damages is awarded;
They asseverate that right before the collision, Estranas was driving the train at a moderate speed. Four hundred (400) meters (2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and
away from the railroad crossing, he started blowing his horn to warn motorists of the approaching train. When the train was only CRESENCIA NATIVIDAD is hereby reduced from P200,000.00 to P100,000.00 each while moral damages awarded to
fifty (50) meters away from the intersection, respondent Estranas noticed that all vehicles on both sides of the track were already JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P50,000.00 to P25,000.00;
at a full stop. Thus, he carefully proceeded at a speed of twenty-five (25) kilometers per hour, still blowing the train’s horn. (3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and
However, when the train was already ten (10) meters away from the intersection, the passenger jeepney being driven by CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 to P50,000.00 each while exemplary damages awarded to
Reynaldo suddenly crossed the tracks. Estranas immediately stepped on the brakes to avoid hitting the jeepney but due to the JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and
sheer weight of the train, it did not instantly come to a complete stop until the jeepney was dragged 20 to 30 meters away from (4) The award for attorney’s fees in favor of the Appellees as well as the award of P300,000.00 to Appellee
the point of collision.7 PURIFICACION as reimbursement for the value of the jeepney is DELETED.
The Ruling of the Trial Court SO ORDERED.10
After trial on the merits, the RTC rendered its Decision 8 dated March 20, 2007, ruling in favor of the respondents, the dispositive In the assailed decision, the CA affirmed the RTC’s finding of negligence on the part of the petitioners. It concurred with the
portion of which reads: trial court's conclusion that petitioner PNR's failure to install sufficient safety devices in the area, such as flagbars or safety
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine National Railways railroad bars and signage, was the proximate cause of the accident. Nonetheless, in order to conform with established
Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay the following amounts to: jurisprudence, it modified the monetary awards to the victims and the heirs of those who perished due to the collision.
1. a) PURIFICACION VIZCARA: The petitioners filed a Motion for Reconsideration11 of the decision of the CA. However, in a Resolution 12 dated October 26,
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara; 2009, the CA denied the same.
2) P35,000.00, for funeral expenses; Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following grounds:
3) P5,000.00 for re-embalming expenses; ITHE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
4) P40,000.00 for wake/interment expenses; THE PETITIONERS;
5) P300,000.00 as reimbursement for the value of the jeepney with license plate no. DTW-387; IITHE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS NO APPLICATION IN
6) P200,000.00 as moral damages; THE INSTANT CASE;
7) P100,000.00 as exemplary damages; and IIITHE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR ERRED IN NOT
8) P20,000.00 for Attorney’s fees. FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON THE PART OF THE RESPONDENTS. 13
b) MARIVIC VIZCARA: The petitioners maintain that the proximate cause of the collision was the negligence and recklessness of the driver of the
1) P50,000.00, as indemnity for the death of Cresencio Vizcara; jeepney. They argue that as a professional driver, Reynaldo is presumed to be familiar with traffic rules and regulations,
2) P200,000.00 as moral damages; including the right of way accorded to trains at railroad crossing and the precautionary measures to observe in traversing the

Page 26 of 28 TORTS MEETING 5

same. However, in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney to a full stop before
crossing the railroad track and thoughtlessly followed the ten-wheeler truck ahead of them. His failure to maintain a safe
distance between the jeepney he was driving and the truck ahead of the same prevented him from seeing the PNR signage
displayed along the crossing.14
In their Comment,15 the respondents reiterate the findings of the RTC and the CA that the petitioners' negligence in maintaining
adequate and necessary public safety devices in the area of the accident was the proximate cause of the mishap. They asseverate
that if there was only a level crossing bar, warning light or sound, or flagman in the intersection, the accident would not have
happened. Thus, there is no other party to blame but the petitioners for their failure to ensure that adequate warning devices are
installed along the railroad crossing.16
This Court’s Ruling
The petition lacks merit.
The petitioners’ negligence was the proximate cause of the accident.
Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's act or omission constituting fault
or negligence. It states:
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is called quasi-delict
and is governed by the provisions of this chapter.
In Layugan v. Intermediate Appellate Court,17 negligence was defined as the omission to do something which a reasonable man,
guided by considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. It is 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. 18 To
determine the existence of negligence, the time-honored test was: 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. 19
In the instant petition, this Court is called upon to determine whose negligence occasioned the ill-fated incident. The records
however reveal that this issue had been rigorously discussed by both the RTC and the CA. To emphasize, the RTC ruled that it
was the petitioners’ failure to install adequate safety devices at the railroad crossing which proximately caused the collision. This
finding was affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that factual findings by the CA are
conclusive on the parties and are not reviewable by this Court. They are entitled to great weight and respect, even finality,
especially when, as in this case, the CA affirmed the factual findings arrived at by the trial court.20
Furthermore, in petitions for review on certiorari, only questions of law may be put into issue. Questions of fact cannot be
entertained.21 To distinguish one from the other, a question of law exists when the doubt or difference centers on what the law is
on a certain state of facts. A question of fact, on the other hand, exists if the doubt centers on the truth or falsity of the alleged
facts.22 Certainly, the finding of negligence by the RTC, which was affirmed by the CA, is a question of fact which this Court
cannot pass upon as this would entail going into the factual matters on which the negligence was based. 23 Moreover, it was not
shown that the present case falls under any of the recognized exceptions 24 to the oft repeated principle according great weight
and respect to the factual findings of the trial court and the CA.
At any rate, the records bear out that the factual circumstances of the case were meticulously scrutinized by both the RTC and
the CA before arriving at the same finding of negligence on the part of the petitioners, and we found no compelling reason to
disturb the same. Both courts ruled that the petitioners fell short of the diligence expected of it, taking into consideration the
nature of its business, to forestall any untoward incident. In particular, the petitioners failed to install safety railroad bars to
prevent motorists from crossing the tracks in order to give way to an approaching train. Aside from the absence of a crossing bar,
the "Stop, Look and Listen" signage installed in the area was poorly maintained, hence, inadequate to alert the public of the
impending danger. A reliable signaling device in good condition, not just a dilapidated "Stop, Look and Listen" signage, 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. 25 Having established the fact of negligence on
the part of the petitioners, they were rightfully held liable for damages.
There was no contributory negligence on the part of the respondents.
As to whether there was contributory negligence on the part of the respondents, this court rule in the negative. 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 which he is required to conform for his own protection. It is an act or omission amounting to want of ordinary care
on the part of the person injured which, concurring with the defendant’s negligence, is the proximate cause of the injury. 26 Here,
we cannot see how the respondents could have contributed to their injury when they were not even aware of the forthcoming
danger. It was established during the trial that the jeepney carrying the respondents was following a ten-wheeler truck which was
only about three to five meters ahead. When the truck proceeded to traverse the railroad track, Reynaldo, the driver of the
Page 27 of 28 TORTS MEETING 5
jeepney, simply followed through. He did so under the impression that it was safe to proceed. It bears noting that the prevailing
circumstances immediately before the collision did not manifest even the slightest indication of an imminent harm. To begin
with, the truck they were trailing was able to safely cross the track. Likewise, there was no crossing bar to prevent them from
proceeding or, at least, a stoplight or signage to forewarn them of the approaching peril. Thus, relying on his faculties of sight
and hearing, Reynaldo had no reason to anticipate the impending danger.27 He proceeded to cross the track and, all of a sudden,
his jeepney was rammed by the train being operated by the petitioners. Even then, the circumstances before the collision negate
the imputation of contributory negligence on the part of the respondents. What clearly appears is that the accident would not
have happened had the petitioners installed reliable and adequate safety devices along the crossing to ensure the safety of all
those who may utilize the same.
At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up with the trend, including the
contemporary standards in railroad safety. As an institution established to alleviate public transportation, it is the duty of the
PNR to promote the safety and security of the general riding public and provide for their convenience, which to a considerable
degree may be accomplished by the installation of precautionary warning devices. Every railroad crossing must be installed with
barriers on each side of the track to block the full width of the road until after the train runs past the crossing. To even draw
closer attention, the railroad crossing may be equipped with a device which rings a bell or turns on a signal light to signify the
danger or risk of crossing. It is similarly beneficial to mount advance warning signs at the railroad crossing, such as a
reflectorized crossbuck sign to inform motorists of the existence of the track, and a stop, look and listen signage to prompt the
public to take caution. These warning signs must be erected in a place where they will have ample lighting and unobstructed
visibility both day and night. If only these safety devices were installed at the Tiaong railroad crossing and the accident
nevertheless occurred, we could have reached a different disposition in the extent of the petitioner’s liability.
The exacting nature of the responsibility of railroad companies to secure public safety by the installation of warning devices was
emphasized in Philippine National Railways v. Court of Appeals, 28 thus:
[I]t 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. 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. 29
The responsibility of the PNR to secure public safety does not end with the installation of safety equipment and signages but,
with equal measure of accountability, with the upkeep and repair of the same. Thus, in Cusi v. Philippine National
Railways,30 we held:
Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to rely on
such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. A need, therefore,
exists for the railroad company to use reasonable care to keep such devices in good condition and in working order, or to give
notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held that if a railroad
company maintains a signalling device at a crossing to give warning of the approach of a train, the failure of the device to
operate is generally held to be evidence of negligence, which maybe considered with all the circumstances of the case in
determining whether the railroad company was negligent as a matter of fact. 31
The maintenance of safety equipment and warning signals at railroad crossings is equally important as their installation since
poorly maintained safety warning devices court as much danger as when none was installed at all. The presence of safety
warning signals at railroad crossing carries with it the presumption that they are in good working condition and that the public
may depend on them for assistance. If they happen to be neglected and inoperative, the public may be misled into relying on the
impression of safety they normally convey and eventually bring injury to themselves in doing so.
The doctrine of last clear chance is not applicable.
Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant case. The doctrine of last clear
chance provides that where both parties are negligent but the negligent act of one is appreciably later in point of time than that of
the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one
who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising
therefrom. Stated differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages caused
by the supervening negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise of due
diligence.32 To reiterate, the proximate cause of the collision was the petitioners’ negligence in ensuring that motorists and
pedestrians alike may safely cross the railroad track. The unsuspecting driver and passengers of the jeepney did not have any
participation in the occurrence of the unfortunate incident which befell them. Likewise, they did not exhibit any overt act
manifesting disregard for their own safety. Thus, absent preceding negligence on the part of the respondents, the doctrine of last
clear chance cannot be applied.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals dated July 21, 2009 in CA-
G.R. CV No. 90021 is hereby AFFIRMED.
SO ORDERED.

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