Del San Transport Lines vs. C&A Construction, Inc.

GR 156034 October 1, 2003

Facts:
The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the
National Housing Authority (NHA) to construct a deflector wall at the Vitas Reclamation
Area in Vitas, Tondo, Manila. The project was completed in 1994 but it was not formally
turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan
Transport Lines, Inc., anchored at the Navotas Fish Port for the purpose of installing a
cargo pump and clearing the cargo oil tank. At around 12:00 midnight of October 20,
1994, Captain Demetrio T. Jusep of M/V Delsan Express received a report from his radio
head operator in Japan5 that a typhoon was going to hit Manila in about eight (8) hours.7
At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek
shelter at the North Harbor but could not enter the area because it was already
congested.8 At 10:00 a.m., Capt. Jusep decided to drop anchor at the vicinity of Vitas
mouth, 4 miles away from a Napocor power barge. At that time, the waves were already
reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the
wind which was dragging the ship towards the Napocor power barge. To avoid collision,
Capt. Jusep ordered a full stop of the vessel.9 He succeeded in avoiding the power barge,
but when the engine was re-started and the ship was maneuvered full astern, it hit the
deflector wall constructed by respondent.10 The damage caused by the incident
amounted to P456,198.24.
Issues:
WON Capt. Jusep is guilty of negligence in deciding to transfer the vessel to the North
Harbor only at 8:35 a.m. of October 21, 1994?
WON Del San Transport Lines is solidary liable under Article 2180 of the Civil Code for the
quasi-delict committed by Capt. Jusep?
Held:
YES, YES.
Ratio:
In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was
negligent in deciding to transfer the vessel only at 8:35 in the morning of October 21, 1994. As
early as 12:00 midnight of October 20, 1994, he received a report from his radio head operator in
Japan19 that a typhoon was going to hit Manila20 after 8 hours.21 This, notwithstanding, he did
nothing, until 8:35 in the morning of October 21, 1994, when he decided to seek shelter at the
North Harbor, which unfortunately was already congested. The finding of negligence cannot be
rebutted upon proof that the ship could not have sought refuge at the North Harbor even if the
transfer was done earlier. It is not the speculative success or failure of a decision that determines
the existence of negligence in the present case, but the failure to take immediate and
appropriate action under the circumstances. Capt. Jusep, despite knowledge that the typhoon
was to hit Manila in 8 hours, complacently waited for the lapse of more than 8 hours thinking that
the typhoon might change direction.22 He cannot claim that he waited for the sun to rise instead
of moving the vessel at midnight immediately after receiving the report because of the difficulty
of traveling at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer
as soon as the sun rose because, according to him, it was not very cloudy23 and there was no
weather disturbance yet.
When he ignored the weather report notwithstanding reasonable foresight of harm, Capt.
Jusep showed an inexcusable lack of care and caution which an ordinary prudent person would
have observed in the same situation.25 Had he moved the vessel earlier, he could have had
greater chances of finding a space at the North Harbor considering that the Navotas Port where
they docked was very near North Harbor.26 Even if the latter was already congested, he would
still have time to seek refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who
suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is not

guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the danger in which he finds himself is
brought about by his own negligence. Clearly, the emergency rule is not applicable to
the instant case because the danger where Capt. Jusep found himself was caused by
his own negligence.
There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is
also the employer of Capt. Jusep who at the time of the incident acted within the scope of his
duty. The defense raised by petitioner was that it exercised due diligence in the selection of Capt.
Jusep because the latter is a licensed and competent Master Mariner. It should be stressed,
however, that the required diligence of a good father of a family pertains not only to the
selection, but also to the supervision of employees. It is not enough that the employees chosen
be competent and qualified, inasmuch as the employer is still required to exercise due diligence
in supervising its employees.
In the case at bar, however, petitioner presented no evidence that it formulated
rules/guidelines for the proper performance of functions of its employees and that it strictly
implemented and monitored compliance therewith. Failing to discharge the burden, petitioner
should therefore be held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to allege in
its complaint that the former did not exercise due diligence in the selection and supervision of its
employees. In Viron Transportation Co., Inc. v. Delos Santos,31 it was held that it is not necessary
to state that petitioner was negligent in the supervision or selection of its employees, inasmuch
as its negligence is presumed by operation of law. Allegations of negligence against the
employee and that of an employer-employee relation in the complaint are enough to make out a
case of quasi-delict under Article 2180 of the Civil Code.
Martinez vs. Buskirk
GR L-5691 December 27, 1910
Facts:
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was
riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the lefthand side of the street as she was going, when a delivery wagon belonging to the
defendant used for the purpose of transportation of fodder by the defendant, and to which
was attached a pair of horses, came along the street in the opposite direction to that the
in which said plaintiff was proceeding, and that thereupon the driver of the said plaintiff's
carromata, observing that the delivery wagon of the defendant was coming at great
speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in
order to give defendant's delivery wagon an opportunity to pass by, but that instead of
passing by the defendant's wagon and horses ran into the carromata occupied by said
plaintiff with her child and overturned it, severely wounding said plaintiff by making a
serious cut upon her head, and also injuring the carromata itself and the harness upon the
horse which was drawing it.

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a
good servant and was considered a safe and reliable cochero; that the delivery wagon had
sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose
of delivery thereof the cochero driving the team as defendant's employee tied the driving
lines of the horses to the front end of the delivery wagon and then went back inside of the
wagon for the purpose of unloading the forage to be delivered; that while unloading the
forage and in the act of carrying some of it out, another vehicle drove by, the driver of
which cracked a whip and made some other noises, which frightened the horses attached
to the delivery wagon and they ran away, and the driver was thrown from the inside of the
wagon out through the rear upon the ground and was unable to stop the horses; that the
horses then ran up and on which street they came into collision with the carromata in

which the plaintiff, Carmen Ong de Martinez, was riding. The defendant himself was not
with the vehicle on the day in question.
Issue:
Old Civil Code ata pero ditto kasi based yung issue .

Art. 1902.
A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to
repair the damage so done.
Art. 1903.
The obligation imposed by preceding article is demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible. The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages caused by the employees in
the service of the branches in which the latter may be employed or on account of their duties.
The State is liable in this sense when it acts through a special agent, but not when the damages should have been caused by the
official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be
applicable.
Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under
their custody.
The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage.

WON an employer who has furnished a gentle and tractable team and a trusty and
capable driver is, under the last paragraph of the above provisions, liable for the negligence of
such driver in handling the team, we are of the opinion that the judgment must be reversed upon
the ground that the evidence does not disclose that the cochero was negligent.
Held:
Note: Persons case under customs.
It appears from the undisputed evidence that the horses which caused the damage were
gentle and tractable; that the cochero was experienced and capable; that he had driven one of
the horses several years and the other five or six months; that he had been in the habit, during
all that time, of leaving them in the condition in which they were left on the day of the accident;
that they had never run away up to that time and there had been, therefore, no accident due to
such practice; that to leave the horses and assist in unloading the merchandise in the manner
described on the day of the accident was the custom of all cochero who delivered merchandise
of the character of that which was being delivered by the cochero of the defendant on the day in
question, which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in
the manner described by the evidence in this case.
The degree of care required of the plaintiff, or those in charged of his horse, at the time of
the injury, is that which would be exercised by a person of ordinary care and prudence under like
circumstances. It cannot be said that the fact of leaving the horse unhitched is in itself
negligence. Whether it is negligence to leave a horse unhitched must be depend upon the
disposition of the horse; whether he was under the observation and control of some person all
the time, and many other circumstances; and is a question to be determined by the jury from the
facts of each case
The act of defendant's driver in leaving the horses in the manner proved was not
unreasonable or imprudent. Acts the performance of which has not proved destructive or
injurious and which have, therefore, been acquiesced in by society for so long a time that they
have ripened into custom, can not be held to be themselves unreasonable or imprudent. Indeed
the very reason why they have been permitted by society is that they beneficial rather than
prejudicial.itc-alf Accidents sometimes happen and injuries result from the most ordinary acts of
life. But such are not their natural or customary results. To hold that, because such an act once
resulted in accident or injury, the actor is necessarily negligent, is to go far. The fact that the
doctrine of res ipsa loquitur is sometimes successfully invoked in such a case, does not in any
sense militate against the reasoning presented. That maxim at most only creates a prima facie
case, and that only in the absence of proof of the circumstances under which the act complained
of was performed. It is something invoked in favor of the plaintiff before defendant's case
showing the conditions and circumstances under which the injury occurred, the creative reason

for the doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and
Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554)
It is a matter of common knowledge as well as proof that it is the universal
practice of merchants to deliver merchandise of the kind of that being delivered at
the time of the injury, in the manner in which that was then being delivered; and that
it is the universal practice to leave the horses in the manner in which they were left at
the time of the accident. This is the custom in all cities. It has not been productive of
accidents or injuries. The public, finding itself unprejudiced by such practice, has
acquiesced for years without objection. Ought the public now, through the courts,
without prior objection or notice, to be permitted to reverse the practice of decades
and thereby make culpable and guilty one who had every reason and assurance to
believe that he was acting under the sanction of the strongest of all civil forces, the
custom of a people? We think not.
Tison vs Pomasin
GR 173180 August 24, 2011
Facts:
Two vehicles, a tractor-trailer and a jitney, figured in a vehicular mishap along Maharlika
Highway in Barangay Agos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni)
was driving the jitney towards the direction of Legaspi City while the tractor-trailer, driven
by Claudio Jabon (Jabon), was traversing the opposite lane going towards Naga City.

The opposing parties gave two different versions of the incident.

Gregorio Pomasin (Gregorio), Laarnis father, was on board the jitney and seated on the
passengers side. He testified that while the jitney was passing through a curve going
downward, he saw a tractor-trailer coming from the opposite direction and encroaching on
the jitneys lane. The jitney was hit by the tractor-trailer and it was dragged further
causing death and injuries to its passengers.
On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed
a jitney on the opposite lane falling off the shoulder of the road. Thereafter, it began
running in a zigzag manner and heading towards the direction of the truck. To avoid
collision, Jabon immediately swerved the tractor-trailer to the right where it hit a tree and
sacks of palay. Unfortunately, the jitney still hit the left fender of the tractor-trailer before
it was thrown a few meters away. The tractor-trailer was likewise damaged.[4]
Multiple death and injuries to those in the jitney resulted.
Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His
daughter, Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham
Dionisio Perol died on the spot. His other daughter Laarni, the jitney driver, and
granddaughter Annie Jane Pomasin Pagunsan expired at the hospital. His wife, Consorcia
Pomasin, another granddaughter Dianne Pomasin Pagunsan, Ricky Ponce, Vicente
Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol sustained
injuries.[5] On the other hand, Jabon and one of the passengers in the tractor-trailer were
injured.
Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents
by giving them P1,000.00 each immediately after the accident and P200,000.00 to Cynthia
Pomasin (Cynthia), one of Gregorios daughters. Cynthia, in turn, executed an Affidavit of
Desistance.
On 14 November 1994, respondents filed a complaint for damages against petitioners
before the Regional Trial Court (RTC) of Antipolo. They alleged that the proximate cause of
the accident was the negligence, imprudence and carelessness of petitioners.
Respondents prayed for indemnification for the heirs of those who perished in the accident
at P50,000.00 each; P500,000.00 for hospitalization, medical and burial expenses;
P350,000.00 for continuous hospitalization and medical expenses of Spouses Pomasin;
P1,000,000.00 as moral damages; P250,000.00 as exemplary damages; P30,000.00 for

loss of income of Cynthia; P100,000.00 as attorneys fees plus P1,000.00 per court
appearance; P50,000.00 for litigation expenses; and cost of suit.
In their Answer, petitioners countered that it was Laarnis negligence which proximately
caused the accident. They further claimed that Cynthia was authorized by Spouses
Pomasin to enter into an amicable settlement by executing an Affidavit of Desistance.
Notwithstanding the affidavit, petitioners complained that respondents filed the instant
complaint to harass them and profit from the recklessness of Laarni.
Petitioners
counterclaimed for damages.

Issue:
WON the testimony of Claudio Jabon or Laarni Pomasin was to be given more credence by
the court? Who was negligent?
WON the the lack of authority of Jabon to drive a tractor in his license is the proximate
cause of the accident?
Held:
The testimony of Claudio Jabon is to be given more weight, Laarni Pomasin was negligent.
The problem in the license of Jabon is not the proximate cause of the accident.
Ratio:
First Issue:
The trial court found that the jitney driver was negligent. We give weight to this finding
greater than the opposite conclusion reached by the appellate court that the driver of the tractortrailer caused the vehicular collision.
One reason why the trial court found credible the version of Jabon was because his
concentration as driver is more focused than that of a mere passenger. The trial court
expounded, thus:
In the appreciation of the testimony of eye-witnesses, one overriding
consideration is their opportunity for observation in getting to know or actually
seeing or observing the matter they testify to. This most particularly holds true in
vehicular collision or accident cases which oftentimes happen merely momentarily or
in the split of a second. In the case of a running or travelling vehicle, especially in
highway travel which doubtless involves faster speed than in ordinary roads, the
driver is concentrated on his driving continuously from moment to moment even in
long trips. While in the case of a mere passenger, he does not have to direct his
attention to the safe conduct of the travelling vehicle, as in fact he may converse with
other passengers and pay no attention to the driving or safe conduct of the travelling
vehicle, as he may even doze off to sleep if he wants to, rendering his opportunity for
observation on the precise cause of the accident or collision or immediately preceding
thereto not as much as that of the driver whose attention is continuously focused on
his driving. So that as between the respective versions of the plaintiffs thru their
passenger and that of the defendants thru their driver as to the cause or antecedent
causes that led to the vehicular collision in this case, the version of the driver of
defendant should ordinarily be more reliable than the version of a mere passenger of
Plaintiffs vehicle, simply because the attention of the passenger is not as much
concentrated on the driving as that of the driver, consequently the capacity for
observation of the latter of the latter on the matter testified to which is the precise
point of inquiry --- the proximate cause of the accident --- is more reasonably reliable.
Moreover, the passengers vision is not as good as that of the driver from the vantage
point of the drivers seat especially in nighttime, thus rendering a passengers
opportunity for observation on the antecedent causes of the collision lesser than that
of the driver. This being so, this Court is more inclined to believe the story of
defendants driver Claudio Jabon that the jitney driven by Laarni Pomasin fell off the
shoulder of the curved road causing it to run thereafter in a zigzag manner and in the
process the two vehicles approaching each other from opposite directions at highway
speed came in contact with each other, the zigzagging jeep hitting the left fender of

the truck all the way to the fuel tank, the violent impact resulting in the lighter
vehicle, the jitney, being thrown away due to the disparate size of the truck.
The appellate court labelled the trial courts rationalization as a sweeping conjecture[19]
and countered that Gregorio was actually occupying the front seat of the jitney and had actually
a clear view of the incident despite the fact that he was not driving.
While it is logical that a drivers attention to the road travelled is keener than that of a
mere passenger, it should also be considered that the logic will hold only if the two are similarly
circumstanced, and only as a general rule, so that, it does not necessarily follow that between
the opposing testimonies of a driver and a passenger, the former is more credible. The factual
setting of the event testified on must certainly be considered.
The declaration of Jabon with respect to the road condition was straightforward and
consistent. The recollection of Gregorio veered from curving and downward to uphill. On this
point, Jabon and his testimony is more credible.
The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the
trial courts conclusion that the jitney was indeed going downhill which, it may be repeated, was
the original testimony of Gregorio that the road was curving and downward. It is this
conclusion, prodded by the inconsistency of Gregorios testimony, that gives credence to the
further testimony of Jabon that the herein respondents jitney, loaded with passengers with topload was running in a zigzag manner.
Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of
the road can result in the loss of control of the jitney, which explains why it was running in a
zigzag manner before it hit the tractor-trailer.
There was no showing that the tractor-trailer was speeding.
There is a
preponderance of evidence that the tractor-trailer was in fact ascending. Considering
its size and the weight of the tractor-trailer, its speed could not be more than that of
a fully loaded jitney which was running downhill in a zigzagging manner.
Neither can it be inferred that Jabon was negligent. In hindsight, it can be
argued that Jabon should have swerved to the right upon seeing the jitney zigzagging
before it collided with the tractor-trailer. Accidents, though, happen in an instant,
and, understandably in this case, leaving the driver without sufficient time and space
to maneuver a vehicle the size of a tractor-trailer uphill and away from collision with
the jitney oncoming downhill.
Clearly, the negligence of Gregorios daughter, Laarni was the proximate cause
of the accident.

Second Issue:
Driving without a proper license is a violation of traffic regulation. Under Article
2185 of the Civil Code, the legal presumption of negligence arises if at the time of the
mishap, a person was violating any traffic regulation. However, in Sanitary Steam
Laundry, Inc. v. Court of Appeals, we held that a causal connection must exist
between the injury received and the violation of the traffic regulation. It must be
proven that the violation of the traffic regulation was the proximate or legal cause of
the injury or that it substantially contributed thereto. Negligence, consisting in whole
or in part, of violation of law, like any other negligence, is without legal consequence
unless it is a contributing cause of the injury.[28] Likewise controlling is our ruling in
Aonuevo v. Court of Appeals[29] where we reiterated that negligence per se, arising

from the mere violation of a traffic statute, need not be sufficient in itself in
establishing liability for damages. In said case, Aonuevo, who was driving a car, did
not attempt to establish a causal connection between the safety violations imputed
to the injured cyclist, and the accident itself. Instead, he relied on a putative
presumption that these violations in themselves sufficiently established negligence
appreciable against the cyclist. Since the onus on Aonuevo is to conclusively prove
the link between the violations and the accident, we can deem him as having failed to
discharge his necessary burden of proving the cyclists own liability. We took the
occasion to state that:
The rule on negligence per se must admit qualifications that may arise from the
logical consequences of the facts leading to the mishap. The doctrine (and Article
2185, for that matter) is undeniably useful as a judicial guide in adjudging liability, for
it seeks to impute culpability arising from the failure of the actor to perform up to a
standard established by a legal fiat. But the doctrine should not be rendered
inflexible so as to deny relief when in fact there is no causal relation between the
statutory violation and the injury sustained. Presumptions in law, while convenient,
are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is
remunerative in spirit, aiming to provide compensation for the harm suffered by those
whose interests have been invaded owing to the conduct of other.
In the instant case, no causal connection was established between the tractortrailer drivers restrictions on his license to the vehicular collision. Furthermore,
Jabon was able to sufficiently explain that the Land Transportation Office merely erred
in not including restriction code 8 in his license.
Malayan Insurance Co. vs. Alberto
GR 194320 February 1, 2012
Facts:
At around 5 oclock in the morning of December 17, 1995, an accident occurred at the
corner of EDSA and Ayala Avenue, Makati City, involving four (4) vehicles, to wit: (1) a
Nissan Bus operated by Aladdin Transit with plate number NYS 381; (2) an Isuzu Tanker
with plate number PLR 684; (3) a Fuzo Cargo Truck with plate number PDL 297; and (4) a
Mitsubishi Galant with plate number TLM 732.

Based on the Police Report issued by the on-the-spot investigator, Senior Police Officer 1
Alfredo M. Dungga (SPO1 Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant
with the Nissan Bus on their right side shortly before the vehicular incident. All three (3)
vehicles were at a halt along EDSA facing the south direction when the Fuzo Cargo Truck
simultaneously bumped the rear portion of the Mitsubishi Galant and the rear left portion
of the Nissan Bus. Due to the strong impact, these two vehicles were shoved forward and
the front left portion of the Mitsubishi Galant rammed into the rear right portion of the
Isuzu Tanker. Previously, particularly on December 15, 1994, Malayan Insurance issued Car
Insurance Policy No. PV-025-00220 in favor of First Malayan Leasing and Finance
Corporation (the assured), insuring the aforementioned Mitsubishi Galant against third
party liability, own damage and theft, among others. Having insured the vehicle against
such risks, Malayan Insurance claimed in its Complaint dated October 18, 1999 that it paid
the damages sustained by the assured amounting to PhP 700,000.

Maintaining that it has been subrogated to the rights and interests of the assured by
operation of law upon its payment to the latter, Malayan Insurance sent several demand
letters to respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes (Reyes), the
registered owner and the driver, respectively, of the Fuzo Cargo Truck, requiring them to
pay the amount it had paid to the assured. When respondents refused to settle their

liability, Malayan Insurance was constrained to file a complaint for damages for gross
negligence against respondents.

In their Answer, respondents asserted that they cannot be held liable for the vehicular
accident, since its proximate cause was the reckless driving of the Nissan Bus driver. They
alleged that the speeding bus, coming from the service road of EDSA, maneuvered its way
towards the middle lane without due regard to Reyes right of way. When the Nissan Bus
abruptly stopped, Reyes stepped hard on the brakes but the braking action could not cope
with the inertia and failed to gain sufficient traction. As a consequence, the Fuzo Cargo
Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the
vehicle in front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo Cargo Truck,
causing damage to the latter in the amount of PhP 20,000. Respondents also controverted
the results of the Police Report, asserting that it was based solely on the biased narration
of the Nissan Bus driver.

After the termination of the pre-trial proceedings, trial ensued. Malayan Insurance
presented the testimony of its lone witness, a motor car claim adjuster, who attested that
he processed the insurance claim of the assured and verified the documents submitted to
him. Respondents, on the other hand, failed to present any evidence.
In its Decision dated February 2, 2009, the trial court, in Civil Case No. 99-95885, ruled in
favor of Malayan Insurance and declared respondents liable for damages. The dispositive
portion reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff against defendants
jointly and severally to pay plaintiff the following:
1. The amount of P700,000.00 with legal interest from the time of the filing of the
complaint;
2. Attorneys fees of P10,000.00 and;
3. Cost of suit.

Issue:
WON the police report is admissible evidence to support the claim of Malayan insurance?
WON there was a valid subrogation to Malayan of the claim of damages of the insured
owner of the Mitsubishi gallant?
Held:
Yes it is admissible.
Yes there is a valid subrogation.
Ratio:
Malayan Insurance contends that, even without the presentation of the police investigator
who prepared the police report, said report is still admissible in evidence, especially since
respondents failed to make a timely objection to its presentation in evidence.[16] Respondents
counter that since the police report was never confirmed by the investigating police officer, it
cannot be considered as part of the evidence on record.
Indeed, under the rules of evidence, a witness can testify only to those facts which the
witness knows of his or her personal knowledge, that is, which are derived from the witness own
perception. Concomitantly, a witness may not testify on matters which he or she merely learned
from others either because said witness was told or read or heard those matters. Such
testimony is considered hearsay and may not be received as proof of the truth of what the
witness has learned. This is known as the hearsay rule.
As discussed in D.M. Consunji, Inc. v. CA, Hearsay is not limited to oral testimony or
statements; the general rule that excludes hearsay as evidence applies to written, as well as oral
statements.
There are several exceptions to the hearsay rule under the Rules of Court, among which
are entries in official records. Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie
evidence of the facts therein stated.
In Alvarez v. PICOP Resources, this Court reiterated the requisites for the admissibility in
evidence, as an exception to the hearsay rule of entries in official records, thus: (a) that the entry
was made by a public officer or by another person specially enjoined by law to do so; (b) that it
was made by the public officer in the performance of his or her duties, or by such other person in
the performance of a duty specially enjoined by law; and (c) that the public officer or other
person had sufficient knowledge of the facts by him or her stated, which must have been
acquired by the public officer or other person personally or through official information.
Notably, the presentation of the police report itself is admissible as an exception to the
hearsay rule even if the police investigator who prepared it was not presented in court, as long
as the above requisites could be adequately proved.
Here, there is no dispute that SPO1 Dungga, the on-the-spot investigator, prepared the
report, and he did so in the performance of his duty. However, what is not clear is whether SPO1
Dungga had sufficient personal knowledge of the facts contained in his report. Thus, the third
requisite is lacking.
Respondents failed to make a timely objection to the police reports presentation in
evidence; thus, they are deemed to have waived their right to do so.[ As a result, the police
report is still admissible in evidence
We agree with Malayan Insurance. Even if We consider the inadmissibility of the police
report in evidence, still, respondents cannot evade liability by virtue of the res ipsa loquitur
doctrine. The D.M. Consunji, Inc. case is quite elucidating:
Petitioners contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the
mere fall of the elevator was a result of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of
an accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the occurrence
resulting in the injury was such as in the ordinary course of things would not happen if those who
had its control or management used proper care, there is sufficient evidence, or, as sometimes
stated, reasonable evidence, in the absence of explanation by the defendant, that the injury
arose from or was caused by the defendants want of care.
In the case at bar, aside from the statement in the police report, none of the parties
disputes the fact that the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in
turn, hit the rear end of the vehicle in front of it. Respondents, however, point to the reckless
driving of the Nissan Bus driver as the proximate cause of the collision, which allegation is totally

unsupported by any evidence on record. And assuming that this allegation is, indeed, true, it is
astonishing that respondents never even bothered to file a cross-claim against the owner or
driver of the Nissan Bus.
What is at once evident from the instant case, however, is the presence of all
the requisites for the application of the rule of res ipsa loquitur. To reiterate, res ipsa
loquitur is a rule of necessity which applies where evidence is absent or not readily
available. As explained in D.M. Consunji, Inc., it is partly based upon the theory that
the defendant in charge of the instrumentality which causes the injury either knows
the cause of the accident or has the best opportunity of ascertaining it and that the
plaintiff has no such knowledge, and, therefore, is compelled to allege negligence in
general terms and to rely upon the proof of the happening of the accident in order to
establish negligence.
As mentioned above, the requisites for the application of the res ipsa loquitur
rule are the following: (1) the accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or agency which caused the
injury was under the exclusive control of the person charged with negligence; and (3)
the injury suffered must not have been due to any voluntary action or contribution on
the part of the person injured.[29]
In the instant case, the Fuzo Cargo Truck would not have had hit the rear end of
the Mitsubishi Galant unless someone is negligent. Also, the Fuzo Cargo Truck was
under the exclusive control of its driver, Reyes. Even if respondents avert liability by
putting the blame on the Nissan Bus driver, still, this allegation was self-serving and
totally unfounded. Finally, no contributory negligence was attributed to the driver of
the Mitsubishi Galant. Consequently, all the requisites for the application of the
doctrine of res ipsa loquitur are present, thereby creating a reasonable presumption
of negligence on the part of respondents.
It is worth mentioning that just like any other disputable presumptions or
inferences, the presumption of negligence may be rebutted or overcome by other
evidence to the contrary. It is unfortunate, however, that respondents failed to
present any evidence before the trial court. Thus, the presumption of negligence
remains. Consequently, the CA erred in dismissing the complaint for Malayan
Insurances adverted failure to prove negligence on the part of respondents.
Validity of Subrogation
Malayan Insurance contends that there was a valid subrogation in the instant case, as evidenced
by the claim check voucher and the Release of Claim and Subrogation Receipt[31] presented by
it before the trial court. Respondents, however, claim that the documents presented by Malayan
Insurance do not indicate certain important details that would show proper subrogation.
As noted by Malayan Insurance, respondents had all the opportunity, but failed to object to the
presentation of its evidence. Thus, and as We have mentioned earlier, respondents are deemed
to have waived their right to make an objection. As this Court held in Asian Construction and
Development Corporation v. COMFAC Corporation:
The rule is that failure to object to the offered evidence renders it admissible, and the
court cannot, on its own, disregard such evidence. We note that ASIAKONSTRUCTs
counsel of record before the trial court, Atty. Bernard Dy, who actively participated in
the initial stages of the case stopped attending the hearings when COMFAC was about
to end its presentation. Thus, ASIAKONSTRUCT could not object to COMFACs offer of
evidence nor present evidence in its defense; ASIAKONSTRUCT was deemed by the
trial court to have waived its chance to do so.

Note also that when a party desires the court to reject the evidence offered, it must
so state in the form of a timely objection and it cannot raise the objection to the
evidence for the first time on appeal. Because of a partys failure to timely object, the
evidence becomes part of the evidence in the case. Thereafter, all the parties are
considered bound by any outcome arising from the offer of evidence properly
presented.
Bearing in mind that the claim check voucher and the Release of Claim and Subrogation Receipt
presented by Malayan Insurance are already part of the evidence on record, and since it is not
disputed that the insurance company, indeed, paid PhP 700,000 to the assured, then there is a
valid subrogation in the case at bar. As explained in Keppel Cebu Shipyard, Inc. v. Pioneer
Insurance and Surety Corporation:
Subrogation is the substitution of one person by another with reference to a lawful claim or right,
so that he who is substituted succeeds to the rights of the other in relation to a debt or claim,
including its remedies or securities. The principle covers a situation wherein an insurer has paid a
loss under an insurance policy is entitled to all the rights and remedies belonging to the insured
against a third party with respect to any loss covered by the policy. It contemplates full
substitution such that it places the party subrogated in the shoes of the creditor, and he may use
all means that the creditor could employ to enforce payment.
We have held that payment by the insurer to the insured operates as an equitable assignment to
the insurer of all the remedies that the insured may have against the third party whose
negligence or wrongful act caused the loss. The right of subrogation is not dependent upon, nor
does it grow out of, any privity of contract. It accrues simply upon payment by the insurance
company of the insurance claim. The doctrine of subrogation has its roots in equity. It is designed
to promote and to accomplish justice; and is the mode that equity adopts to compel the ultimate
payment of a debt by one who, in justice, equity, and good conscience, ought to pay.
Considering the above ruling, it is only but proper that Malayan Insurance be subrogated to the
rights of the assured.
D.M. Consunji vs. CA
GR 137873 April 20, 2001
*Hindi ko masyado ma gets to, paki try basahin in the original pero try ko explain din sa Monday.
Facts:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M.
Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.

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

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

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

the victim to fall down to the basement of the elevator core, Tower D of the building under
construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.

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

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

After trial, the RTC rendered a decision in favor of the widow Maria Juego.
Issue:
Whether or not the petitioner is held liable under the grounds of negligence.
Whether or not the injured employee or his heirs in case of death have a right of selection
or choice of action between availing themselves of the workers right under the
Workmens Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by virtue of the
negligence or fault of the employers or whether they may avail themselves cumulatively
of both actions.
Held/Ratio:
The doctrine of res ipsa loquitur (the thing or transaction speaks for itself) is peculiar to
the law of negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. It has the following
requisites: (1) the accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3)the injury suffered must not have been
due to any voluntary action or contribution on the part of the person injured. All the requisites for
the application of the rule of res ipsa loquitur are present in the case at bar, thus a reasonable
presumption or inference of appellants negligence arises. Petitioner does not cite any other
evidence to rebut the inference or presumption of negligence arising from the application of res
ipsa loquitur, or to establish any defense relating to the incident.
The claims for damages sustained by workers in the course of their employment could be
filed only under the Workmens Compensation Law, to the exclusion of all further claims under
other laws. In the course of availing the remedies provided under the Workmens Compensation
law, the claimants are deemed to have waived theirknown right of the remedies provided by
other laws. The Court of Appeals, however, held that the case at bar came under exception
because private respondent was unaware of petitioners negligence when she filed her claim for
death benefits from the State Insurance Fund. Had the claimant been aware, she wouldve opted
to avail of a better remedy than that of which she already had.