Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF
APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.

injured passengers, including petitioner, sign an already

prepared Joint Affidavit which stated, among other things:
That we were passengers of Thames with
Plate No. 52-222 PUJ Phil. 73 and victims
after the said Thames met an accident at
Barrio Payocpoc Norte, Bauang, La Union
while passing through the National
Highway No. 3;

In defense, respondent averred that the vehicular mishap

was due to force majeure, and that petitioner had already
been paid and moreover had waived any right to institute
any action against him (private respondent) and his driver,
when petitioner Gatchalian signed the Joint Affidavit on 14
July 1973.

That after a thorough investigation the said

Thames met the accident due to
mechanical defect and went off the road
and turned turtle to the east canal of the
road into a creek causing physical injuries
to us;

After trial, the trial court dismissed the complaint upon the
ground that when petitioner Gatchalian signed the Joint
Affidavit, she relinquished any right of action (whether
criminal or civil) that she may have had against respondent
and the driver of the mini-bus.

xxx xxx xxx

FELICIANO, J.:p
At noon time on 11 July 1973, petitioner Reynalda
Gatchalian boarded, as a paying passenger, respondent's
"Thames" mini bus at a point in San Eugenio, Aringay, La
Union, bound for Bauang, of the same province. On the
way, while the bus was running along the highway in Barrio
Payocpoc, Bauang, Union, "a snapping sound" was
suddenly heard at one part of the bus and, shortly
thereafter, the vehicle bumped a cement flower pot on the
side of the road, went off the road, turned turtle and fell into
a ditch. Several passengers, including petitioner
Gatchalian, were injured. They were promptly taken to
Bethany Hospital at San Fernando, La Union, for medical
treatment. Upon medical examination, petitioner was found
to have sustained physical injuries on the leg, arm and
forehead, specifically described as follows: lacerated
wound, forehead; abrasion, elbow, left; abrasion, knee, left;
abrasion, lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were confined
in the hospital, Mrs. Adela Delim, wife of respondent, visited
them and later paid for their hospitalization and medical
expenses. She also gave petitioner P12.00 with which to
pay her transportation expense in going home from the
hospital. However, before Mrs. Delim left, she had the

P30,000.00 for moral damages; and P1,000.00 as

attorney's fees.

That we are no longer interested to file a

complaint, criminal or civil against the said
driver and owner of the said Thames,
because it was an accident and the said
driver and owner of the said Thames have
gone to the extent of helping us to be
treated upon our injuries.
xxx xxx xxx 2
(Emphasis supplied)
Notwithstanding this document, petitioner Gathalian filed
with the then Court of First Instance of La Union an
action extra contractu to recover compensatory and moral
damages. She alleged in the complaint that her injuries
sustained from the vehicular mishap had left her with a
conspicuous white scar measuring 1 by 1/2 inches on the
forehead, generating mental suffering and an inferiority
complex on her part; and that as a result, she had to retire
in seclusion and stay away from her friends. She also
alleged that the scar diminished her facial beauty and
deprived her of opportunities for employment. She prayed
for an award of: P10,000.00 for loss of employment and
other opportunities; P10,000.00 for the cost of plastic
surgery for removal of the scar on her forehead;

On appeal by petitioner, the Court of Appeals reversed the

trial court's conclusion that there had been a valid waiver,
but affirmed the dismissal of the case by denying
petitioner's claim for damages:
We are not in accord, therefore, of (sic) the
ground of the trial court's dismissal of the
complaint, although we conform to the trial
court's disposition of the case its
dismissal.
IN VIEW OF THE FOREGOING
considerations, there being no error
committed by the lower court in dismissing
the plaintiff-appellant's complaint, the
judgment of dismissal is hereby affirmed.
Without special pronouncement as to
costs.
SO ORDERED. 3
In the present Petition for Review filed in forma
pauperis, petitioner assails the decision of the Court of
Appeals and ask this Court to award her actual or
compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals who
held that no valid waiver of her cause of action had been

made by petitioner. The relevant language of the Joint

Affidavit may be quoted again:
That we are no longer interested to file a
complaint, criminal or civil against the said
driver and ownerof the said Thames,
because it was an accident and the said
driver and owner of the said Thames have
gone to the extent of helping us to be
treated upon our injuries. (Emphasis
supplied)
A waiver, to be valid and effective, must in the first
place be couched in clear and unequivocal terms
which leave no doubt as to the intention of a
person to give up a right or benefit which legally
pertains to him. 4 A waiver may not casually be
attributed to a person when the terms thereof do
not explicitly and clearly evidence an intent to
abandon a right vested in such person.
The degree of explicitness which this Court has required in
purported waivers is illustrated in Yepes and Susaya v.
Samar Express Transit (supra), where the Court in reading
and rejecting a purported waiver said:
. . . It appears that before their transfer to
the Leyte Provincial Hospital, appellees
were asked to sign as, in fact, they signed
the document Exhibit I wherein they stated
that "in consideration of the expenses
which said operator has incurred in
properly giving us the proper medical
treatment, we hereby manifest our desire
to waive any and all claims against the
operator of the Samar Express Transit."
xxx xxx xxx
Even a cursory examination of the
document mentioned above will readily
show that appellees did not actually waive
their right to claim damages from appellant
for the latter's failure to comply with their
contract of carriage. All that said document

proves is that they expressed a "desire" to

make the waiver which obviously is not
the same as making an actual waiver of
their right. A waiver of the kind invoked by
appellant must be clear and
unequivocal (Decision of the Supreme
Court of Spain of July 8, 1887) which is
not the case of the one relied upon in this
appeal. (Emphasis supplied)
If we apply the standard used in Yepes and
Susaya, we would have to conclude that the terms
of the Joint Affidavit in the instant case cannot be
regarded as a waiver cast in "clear and
unequivocal" terms. Moreover, the circumstances
under which the Joint Affidavit was signed by
petitioner Gatchalian need to be considered.
Petitioner testified that she was still reeling from the
effects of the vehicular accident, having been in the
hospital for only three days, when the purported
waiver in the form of the Joint Affidavit was
presented to her for signing; that while reading the
same, she experienced dizziness but that, seeing
the other passengers who had also suffered
injuries sign the document, she too signed without
bothering to read the Joint Affidavit in its entirety.
Considering these circumstances there appears
substantial doubt whether petitioner understood
fully the import of the Joint Affidavit (prepared by or
at the instance of private respondent) she signed
and whether she actually intended thereby to waive
any right of action against private respondent.
Finally, because what is involved here is the liability of a
common carrier for injuries sustained by passengers in
respect of whose safety a common carrier must
exercise extraordinary diligence, we must construe any
such purported waiver most strictly against the common
carrier. For a waiver to be valid and effective, it must not be
contrary to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to
claim damages by an injured passenger, under
circumstances like those exhibited in this case, would be to
dilute and weaken the standard of extraordinary diligence
exacted by the law from common carriers and hence to

render that standard unenforceable. 6 We believe such a

purported waiver is offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals,
having by majority vote held that there was no enforceable
waiver of her right of action, should have awarded her
actual or compensatory and moral damages as a matter of
course.
We have already noted that a duty to exercise
extraordinary diligence in protecting the safety of its
passengers is imposed upon a common carrier. 7 In case
of death or injuries to passengers, a statutory presumption
arises that the common carrier was at fault or had acted
negligently "unless it proves that it [had] observed
extraordinary diligence as prescribed in Articles 1733 and
1755." 8 In fact, because of this statutory presumption, it
has been held that a court need not even make an express
finding of fault or negligence on the part of the common
carrier in order to hold it liable. 9 To overcome this
presumption, the common carrier must slow to the court
that it had exercised extraordinary diligence to prevent the
injuries. 10 The standard of extraordinary diligence
imposed upon common carriers is considerably more
demanding than the standard of ordinary diligence,i.e., the
diligence of a good paterfamilias established in respect of
the ordinary relations between members of society. A
common carrier is bound to carry its passengers safely" as
far as human care and foresight can provide, using
the utmost diligence of a very cautious person, with due
regard to all the circumstances". 11
Thus, the question which must be addressed is whether or
not private respondent has successfully proved that he had
exercised extraordinary diligence to prevent the mishap
involving his mini-bus. The records before the Court are
bereft of any evidence showing that respondent had
exercised the extraordinary diligence required by law.
Curiously, respondent did not even attempt, during the trial
before the court a quo, to prove that he had indeed
exercised the requisite extraordinary diligence. Respondent
did try to exculpate himself from liability by alleging that the
mishap was the result of force majeure. But allegation is
not proof and here again, respondent utterly failed to
substantiate his defense of force majeure. To exempt a
common carrier from liability for death or physical injuries to

passengers upon the ground of force majeure, the carrier

must clearly show not only that the efficient cause of the
casualty was entirely independent of the human will, but
also that it was impossible to avoid. Any participation by the
common carrier in the occurrence of the injury will defeat
the defense of force majeure. InServando v. Philippine
Steam Navigation Company, 12 the Court summed up the
essential characteristics of force majeure by quoting with
approval from the Enciclopedia Juridica Espaola:
Thus, where fortuitous event or force
majeure is the immediate and proximate
cause of the loss, the obligor is exempt
from liability non-performance. The
Partidas, the antecedent of Article 1174 of
the Civil Code, defines "caso fortuito" as
'an event that takes place by accident and
could not have been foreseen. Examples
of this are destruction of houses,
unexpected fire, shipwreck, violence of
robber.
In its dissertation on the phrase "caso
fortuito" the Enciclopedia Juridica Espaola
says: 'In legal sense and, consequently,
also in relation to contracts, a "caso
fortuito" presents the following essential
characteristics: (1) the cause of the
unforeseen and unexpected occurence, or
of the failure of the debtor to comply with
his obligation, must be independent of the
human will; (2) it must be impossible to
foresee the event which constitutes the
"caso fortuito", or if it can be foreseen, it
must be impossible to avoid; (3) the
occurrence must be such as to render it
impossible for the debtor to fulfill his
obligation in a normal manner; and (4) the
obligor must be free from any participation
in the aggravation of the injury resulting to
the creditor.
Upon the other hand, the record yields affirmative evidence
of fault or negligence on the part of respondent common
carrier. In her direct examination, petitioner Gatchalian
narrated that shortly before the vehicle went off the road

and into a ditch, a "snapping sound" was suddenly heard at

one part of the bus. One of the passengers, an old woman,
cried out, "What happened?" ("Apay addan samet
nadadaelen?"). The driver replied, nonchalantly, "That is
only normal" ("Ugali ti makina dayta"). The driver did not
stop to check if anything had gone wrong with the bus.
Moreover, the driver's reply necessarily indicated that the
same "snapping sound" had been heard in the bus on
previous occasions. This could only mean that the bus had
not been checked physically or mechanically to determine
what was causing the "snapping sound" which had
occurred so frequently that the driver had gotten
accustomed to it. Such a sound is obviously alien to a
motor vehicle in good operating condition, and even a
modicum of concern for life and limb of passengers dictated
that the bus be checked and repaired. The obvious
continued failure of respondent to look after the
roadworthiness and safety of the bus, coupled with the
driver's refusal or neglect to stop the mini-bus after he had
heard once again the "snapping sound" and the cry of
alarm from one of the passengers, constituted wanton
disregard of the physical safety of the passengers, and
hence gross negligence on the part of respondent and his
driver.
We turn to petitioner's claim for damages. The first item in
that claim relates to revenue which petitioner said she
failed to realize because of the effects of the vehicular
mishap. Petitioner maintains that on the day that the minibus went off the road, she was supposed to confer with the
district supervisor of public schools for a substitute
teacher's job, a job which she had held off and on as a
"casual employee." The Court of Appeals, however, found
that at the time of the accident, she was no longer
employed in a public school since, being a casual
employee and not a Civil Service eligible, she had been laid
off. Her employment as a substitute teacher was occasional
and episodic, contingent upon the availability of vacancies
for substitute teachers. In view of her employment status as
such, the Court of Appeals held that she could not be said
to have in fact lost any employment after and by reason of
the accident. 13 Such was the factual finding of the Court of
Appeals, a finding entitled to due respect from this Court.
Petitioner Gatchalian has not submitted any basis for
overturning this finding of fact, and she may not be

awarded damages on the basis of speculation or

conjecture.14
Petitioner's claim for the cost of plastic surgery for removal
of the scar on her forehead, is another matter. A person is
entitled to the physical integrity of his or her body; if that
integrity is violated or diminished, actual injury is suffered
for which actual or compensatory damages are due and
assessable. Petitioner Gatchalian is entitled to be placed as
nearly as possible in the condition that she was before the
mishap. A scar, especially one on the face of the woman,
resulting from the infliction of injury upon her, is a violation
of bodily integrity, giving raise to a legitimate claim for
restoration to her conditio ante. If the scar is relatively small
and does not grievously disfigure the victim, the cost of
surgery may be expected to be correspondingly modest.
In Araneta, et al. vs. Areglado, et al., 15 this Court awarded
actual or compensatory damages for, among other things,
the surgical removal of the scar on the face of a young boy
who had been injured in a vehicular collision. The Court
there held:
We agree with the appellants that the
damages awarded by the lower court for
the injuries suffered by Benjamin Araneta
are inadequate. In allowing not more than
P1,000.00 as compensation for the
"permanent deformity and something
like an inferiority complex" as well as for
the "pathological condition on the left side
of the jaw" caused to said plaintiff, the
court below overlooked the clear evidence
on record that to arrest the degenerative
process taking place in the mandible
and restore the injured boy to a nearly
normal condition, surgical intervention was
needed, for which the doctor's charges
would amount to P3,000.00, exclusive of
hospitalization fees, expenses and
medicines.Furthermore, the operation,
according to Dr. Dio, would probably have
to be repeated in order to effectuate a
complete cure, while removal of the scar
on the face obviously demanded plastic
surgery.

xxx xxx xxx

The father's failure to submit his son to a
plastic operation as soon as possible does
not prove that such treatment is not called
for. The damage to the jaw and
the existence of the scar in Benjamin
Araneta's face are physical facts that can
not be reasoned out of existence. That the
injury should be treated in order to restore
him as far as possible to his original
condition is undeniable. The father's delay,
or even his negligence, should not be
allowed to prejudice the son who has no
control over the parent's action nor impair
his right to a full indemnity.
. . . Still, taking into account the necessity
and cost of corrective measures to fully
repair the damage;the pain suffered by the
injured party; his feelings of inferiority due
to consciousness of his present deformity,
as well as the voluntary character of the
injury inflicted; and further considering
that a repair, however, skillfully conducted,
is never equivalent to the original state, we
are of the opinion that the indemnity
granted by the trial court should be
increased to a total of P18,000.00.
(Emphasis supplied)
Petitioner estimated that the cost of having her scar
surgically removed was somewhere between P10,000.00 to
P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam,
a witness presented as an expert by petitioner, testified that
the cost would probably be between P5,000.00 to
P10,000.00. 17 In view of this testimony, and the fact that a
considerable amount of time has lapsed since the mishap
in 1973 which may be expected to increase not only the
cost but also very probably the difficulty of removing the
scar, we consider that the amount of P15,000.00 to cover
the cost of such plastic surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the longestablished rule is that moral damages may be awarded
where gross negligence on the part of the common carrier

is shown. 18 Since we have earlier concluded that

respondent common carrier and his driver had been grossly
negligent in connection with the bus mishap which had
injured petitioner and other passengers, and recalling the
aggressive manuevers of respondent, through his wife, to
get the victims to waive their right to recover damages even
as they were still hospitalized for their injuries, petitioner
must be held entitled to such moral damages. Considering
the extent of pain and anxiety which petitioner must have
suffered as a result of her physical injuries including the
permanent scar on her forehead, we believe that the
amount of P30,000.00 would be a reasonable award.
Petitioner's claim for P1,000.00 as atttorney's fees is in fact
even more modest. 19
WHEREFORE, the Decision of the Court of Appeals dated
24 October 1980, as well as the decision of the then Court
of First Instance of La Union dated 4 December 1975 are
hereby REVERSED and SET ASIDE.Respondent is hereby
ORDERED to pay petitioner Reynalda Gatchalian the
following sums: 1) P15,000.00 as actual or compensatory
damages to cover the cost of plastic surgery for the
removal of the scar on petitioner's forehead; 2) P30,000.00
as moral damages; and 3) P1,000.00 as attorney's fees,
the aggregate amount to bear interest at the legal rate of
6% per annum counting from the promulgation of this
decision until full payment thereof. Costs against private
respondent.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 79688

February 1, 1996

PLEASANTVILLE DEVELOPMENT
CORPORATION, petitioner,
vs.
COURT OF APPEALS, WILSON KEE, C.T. TORRES
ENTERPRISES, INC. and ELDRED
JARDINICO,respondents.
DECISION
PANGANIBAN, J.:
Is a lot buyer who constructs improvements on the wrong
property erroneously delivered by the owner's agent, a
builder in good faith? This is the main issue resolved in this
petition for review on certiorari to reverse the Decision1 of
the Court of Appeals2 in CA-G.R. No. 11040, promulgated
on August 20, 1987.
By resolution dated November 13, 1995, the First Division
of this Court resolved to transfer this case (along with
several others) to the Third Division. After due deliberation
and consultation, the Court assigned the writing of this
Decision to the undersigned ponente.
The Facts
The facts, as found by respondent Court, are as follows:
Edith Robillo purchased from petitioner a parcel of land
designated as Lot 9, Phase II and located at Taculing Road,
Pleasantville Subdivision, Bacolod City. In 1975,
respondent Eldred Jardinico bought the rights to the lot
from Robillo. At that time, Lot 9 was vacant.

Upon completing all payments, Jardinico secured from the

Register of Deeds of Bacolod City on December 19, 1978
Transfer Certificate of Title No. 106367 in his name. It was
then that he discovered that improvements had been
introduced on Lot 9 by respondent Wilson Kee, who had
taken possession thereof.
It appears that on March 26, 1974, Kee bought on
installment Lot 8 of the same subdivision from C.T. Torres
Enterprises, Inc. (CTTEI), the exclusive real estate agent of
petitioner. Under the Contract to Sell on Installment, Kee
could possess the lot even before the completion of all
installment payments. On January 20, 1975, Kee paid
CTTEI the relocation fee of P50.00 and another P50.00 on
January 27, 1975, for the preparation of the lot plan. These
amounts were paid prior to Kee's taking actual possession
of Lot 8. After the preparation of the lot plan and a copy
thereof given to Kee, CTTEI through its employee, Zenaida
Octaviano, accompanied Kee's wife, Donabelle Kee, to
inspect Lot 8. Unfortunately, the parcel of land pointed by
Octaviano was Lot 9. Thereafter, Kee proceeded to
construct his residence, a store, an auto repair shop and
other improvements on the lot.
After discovering that Lot 9 was occupied by Kee, Jardinico
confronted him. The parties tried to reach an amicable
settlement, but failed.
On January 30, 1981, Jardinico's lawyer wrote Kee,
demanding that the latter remove all improvements and
vacate Lot 9. When Kee refused to vacate Lot 9, Jardinico
filed with the Municipal Trial Court in Cities, Branch 3,
Bacolod City (MTCC), a complaint for ejectment with
damages against Kee.
Kee, in turn, filed a third-party complaint against petitioner
and CTTEI.
The MTCC held that the erroneous delivery of Lot 9 to Kee
was attributable to CTTEI. It further ruled that petitioner and
CTTEI could not successfully invoke as a defense the
failure of Kee to give notice of his intention to begin
construction required under paragraph 22 of the Contract to
Sell on Installment and his having built a sari-sari store

without the prior approval of petitioner required under

paragraph 26 of said contract, saying that the purpose of
these requirements was merely to regulate the type of
improvements to be constructed on the Lot.3
However, the MTCC found that petitioner had already
rescinded its contract with Kee over Lot 8 for the latter's
failure to pay the installments due, and that Kee had not
contested the rescission. The rescission was effected in
1979, before the complaint was instituted. The MTCC
concluded that Kee no longer had any right over the lot
subject of the contract between him and petitioner.
Consequently, Kee must pay reasonable rentals for the use
of Lot 9, and, furthermore, he cannot claim reimbursement
for the improvements he introduced on said lot.
The MTCC thus disposed:
IN VIEW OF ALL THE FOREGOING, judgment is
hereby rendered as follows:
1. Defendant Wilson Kee is ordered to vacate the
premises of Lot 9, covered by TCT No. 106367 and
to remove all structures and improvements he
introduced thereon;
2. Defendant Wilson Kee is ordered to pay to the
plaintiff rentals at the rate of P15.00 a day
computed from the time this suit was filed on March
12, 1981 until he actually vacates the premises.
This amount shall bear interests (sic) at the rate of
12 per cent (sic) per annum.
3. Third-Party Defendant C.T. Torres Enterprises,
Inc. and Pleasantville Subdivision are ordered to
pay the plaintiff jointly and severally the sum of
P3,000.00 as attorney's fees and P700.00 as cost
and litigation expenses.4
On appeal, the Regional Trial Court, Branch 48, Bacolod
City (RTC) ruled that petitioner and CTTEI were not at fault
or were not negligent, there being no preponderant
evidence to show that they directly participated in the
delivery of Lot 9 to Kee5. It found Kee a builder in bad faith.

It further ruled that even assuming arguendo that Kee was

acting in good faith, he was, nonetheless, guilty of
unlawfully usurping the possessory right of Jardinico over
Lot 9 from the time he was served with notice to vacate
said lot, and thus was liable for rental.
The RTC thus disposed:
WHEREFORE, the decision appealed from is
affirmed with respect to the order against the
defendant to vacate the premises of Lot No. 9
covered by Transfer Certificate of Title No. T106367 of the land records of Bacolod City; the
removal of all structures and improvements
introduced thereon at his expense and the payment
to plaintiff (sic) the sum of Fifteen (P15.00) Pesos a
day as reasonable rental to be computed from
January 30, 1981, the date of the demand, and not
from the date of the filing of the complaint, until he
had vacated (sic) the premises, with interest
thereon at 12% per annum. This Court further
renders judgment against the defendant to pay the
plaintiff the sum of Three Thousand (P3,000.00)
Pesos as attorney's fees, plus costs of litigation.
The third-party complaint against Third-Party
Defendants Pleasantville Development Corporation
and C.T. Torres Enterprises, Inc. is dismissed. The
order against Third-Party Defendants to pay
attorney's fees to plaintiff and costs of litigation is
reversed.6
Following the denial of his motion for reconsideration on
October 20, 1986, Kee appealed directly to the Supreme
Court, which referred the matter to the Court of Appeals.
The appellate court ruled that Kee was a builder in good
faith, as he was unaware of the "mix-up" when he began
construction of the improvements on Lot 8. It further ruled
that the erroneous delivery was due to the negligence of
CTTEI, and that such wrong delivery was likewise
imputable to its principal, petitioner herein. The appellate
court also ruled that the award of rentals was without basis.
Thus, the Court of Appeals disposed:

WHEREFORE, the petition is GRANTED, the

appealed decision is REVERSED, and judgment is
rendered as follows:

Petitioner then filed the instant petition against Kee,

Jardinico and CTTEI.
The Issues

1. Wilson Kee is declared a builder in good faith

with respect to the improvements he introduced on
Lot 9, and is entitled to the rights granted him
under Articles 448, 546 and 548 of the New Civil
Code.
2. Third-party defendants C.T. Torres Enterprises,
Inc. and Pleasantville Development Corporation
are solidarily liable under the following
circumstances:
A.
If Eldred Jardinico decides to
appropriate the improvements and,
thereafter, remove these structures, the
third-party defendants shall answer for all
demolition expenses and the value of the
improvements thus destroyed or rendered
useless;
b. If Jardinico prefers that Kee buy the
land, the third-party defendants shall
answer for the amount representing the
value of Lot 9 that Kee should pay to
Jardinico.
3. Third-party defendants C.T. Torres Enterprises,
Inc. and Pleasantville Development Corporation
are ordered to pay in solidum the amount of
P3,000.00 to Jardinico as attorney's fees, as well
as litigation expenses.

The petition submitted the following grounds to justify a

review of the respondent Court's Decision, as follows:
1. The Court of Appeals has decided the case in a
way probably not in accord with law or the the (sic)
applicable decisions of the Supreme Court on thirdparty complaints, by ordering third-party
defendants to pay the demolition expenses and/or
price of the land;
2. The Court of Appeals has so far departed from
the accepted course of judicial proceedings, by
granting to private respondent-Kee the rights of a
builder in good faith in excess of what the law
provides, thus enriching private respondent Kee at
the expense of the petitioner;
3. In the light of the subsequent events or
circumstances which changed the rights of the
parties, it becomes imperative to set aside or at
least modify the judgment of the Court of Appeals
to harmonize with justice and the facts;
4. Private respondent-Kee in accordance with the
findings of facts of the lower court is clearly a
builder in bad faith, having violated several
provisions of the contract to sell on installments;

4. The award of rentals to Jardinico is dispensed

with.

5. The decision of the Court of Appeals, holding the

principal, Pleasantville Development Corporation
(liable) for the acts made by the agent in excess of
its authority is clearly in violation of the provision of
the law;

Furthermore, the case is REMANDED to the court

of origin for the determination of the actual value of
the improvements and the property (Lot 9), as well
as for further proceedings in conformity with Article
448 of the New Civil Code.7

6. The award of attorney's fees is clearly without

basis and is equivalent to putting a premium in (sic)
court litigation.
From these grounds, the issues could be re-stated as
follows:

(1) Was Kee a builder in good faith?

(2) What is the liability, if any, of petitioner and its
agent, C.T. Torres Enterprises, Inc.? and
(3) Is the award of attorney's fees proper?
The First Issue: Good Faith
Petitioner contends that the Court of Appeals erred in
reversing the RTC's ruling that Kee was a builder in bad
faith.
Petitioner fails to persuade this Court to abandon the
findings and conclusions of the Court of Appeals that Kee
was a builder in good faith. We agree with the following
observation of the Court of Appeals:

for the relocation of the lot, as well as for the

production of a lot plan by CTTEI's geodetic
engineer. Upon Kee's receipt of the map, his wife
went to the subdivision site accompanied by
CTTEI's employee, Octaviano, who authoritatively
declared that the land she was pointing to was
indeed Lot 8. Having full faith and confidence in the
reputation of CTTEI, and because of the
company's positive identification of the property,
Kee saw no reason to suspect that there had been
a misdelivery. The steps Kee had taken to protect
his interests were reasonable. There was no need
for him to have acted ex-abundantia cautela, such
as being present during the geodetic engineer's
relocation survey or hiring an independent geodetic
engineer to countercheck for errors, for the final
delivery of subdivision lots to their owners is part of
the regular course of everyday business of CTTEI.
Because of CTTEI's blunder, what Kee had hoped
to forestall did in fact transpire. Kee's efforts all
went to naught.8

The roots of the controversy can be traced directly

to the errors committed by CTTEI, when it pointed
the wrong property to Wilson Kee and his wife. It is
highly improbable that a purchaser of a lot would
knowingly and willingly build his residence on a lot
owned by another, deliberately exposing himself
and his family to the risk of being ejected from the
land and losing all improvements thereon, not to
mention the social humiliation that would follow.

Good faith consists in the belief of the builder that the land
he is building on is his and his ignorance of any defect or
flaw in his title 9. And as good faith is presumed, petitioner
has the burden of proving bad faith on the part of Kee 10.

Under the circumstances, Kee had acted in the

manner of a prudent man in ascertaining the
identity of his property. Lot 8 is covered by Transfer
Certificate of Title No. T-69561, while Lot 9 is
identified in Transfer Certificate of Title No. T106367. Hence, under the Torrens system of land
registration, Kee is presumed to have knowledge of
the metes and bounds of the property with which
he is dealing. . . .

To demonstrate Kee's bad faith, petitioner points to Kee's

violation of paragraphs 22 and 26 of the Contract of Sale
on Installment.

xxx

xxx

xxx

But as Kee is a layman not versed in the technical

description of his property, he had to find a way to
ascertain that what was described in TCT No.
69561 matched Lot 8. Thus, he went to the
subdivision developer's agent and applied and paid

At the time he built improvements on Lot 8, Kee believed

that said lot was what he bought from petitioner. He was
not aware that the lot delivered to him was not Lot 8. Thus,
Kee's good faith. Petitioner failed to prove otherwise.

We disagree. Such violations have no bearing whatsoever

on whether Kee was a builder in good faith, that is, on his
state of mind at the time he built the improvements on Lot
9. These alleged violations may give rise to petitioner's
cause of action against Kee under the said contract
(contractual breach), but may not be bases to negate the
presumption that Kee was a builder in good faith.

Petitioner also points out that, as found by the trial court,

the Contract of Sale on Installment covering Lot 8 between
it and Kee was rescinded long before the present action
was instituted. This has no relevance on the liability of
petitioner, as such fact does not negate the negligence of
its agent in pointing out the wrong lot. to Kee. Such
circumstance is relevant only as it gives Jardinico a cause
of action for unlawful detainer against Kee.
Petitioner next contends that Kee cannot "claim that
another lot was erroneously pointed out to him" because
the latter agreed to the following provision in the Contract of
Sale on installment, to wit:
13. The Vendee hereby declares that prior to the
execution of his contract he/she has personally
examined or inspected the property made subjectmatter hereof, as to its location, contours, as well
as the natural condition of the lots and from the
date hereof whatever consequential change therein
made due to erosion, the said Vendee shall bear
the expenses of the necessary fillings, when the
same is so desired by him/her.11
The subject matter of this provision of the contract is the
change of the location, contour and condition of the lot due
to erosion. It merely provides that the vendee, having
examined the property prior to the execution of the
contract, agrees to shoulder the expenses resulting from
such change.
We do not agree with the interpretation of petitioner that
Kee contracted away his right to recover damages resulting
from petitioner's negligence. Such waiver would be contrary
to public policy and cannot be allowed. "Rights may be
waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law." 12
The Second Issue: Petitioner's Liability
Kee filed a third-party complaint against petitioner and
CTTEI, which was dismissed by the RTC after ruling that
there was no evidence from which fault or negligence on
the part of petitioner and CTTEI can be inferred. The Court

of Appeals disagreed and found CTTEI negligent for the

erroneous delivery of the lot by Octaviano, its employee.
Petitioner does not dispute the fact that CTTEI was its
agent. But it contends that the erroneous delivery of Lot 9
to Kee was an act which was clearly outside the scope of
its authority, and consequently, CTTEI I alone should be
liable. It asserts that "while [CTTEI] was authorized to sell
the lot belonging to the herein petitioner, it was never
authorized to deliver the wrong lot to Kee" 13.
Petitioner's contention is without merit.
The rule is that the principal is responsible for the acts of
the agent, done within the scope of his authority, and
should bear the damage caused to third persons 14. On the
other hand, the agent who exceeds his authority is
personally liable for the damage 15
CTTEI was acting within its authority as the sole real estate
representative of petitioner when it made the delivery to
Kee. In acting within its scope of authority, it was, however,
negligent. It is this negligence that is the basis of
petitioner's liability, as principal of CTTEI, per Articles 1909
and 1910 of the Civil Code.
Pending resolution of the case before the Court of Appeals,
Jardinico and Kee on July 24, 1987 entered into a deed of
sale, wherein the former sold Lot 9 to Kee. Jardinico and
Kee did not inform the Court of Appeals of such deal.
The deed of sale contained the following provision:
1. That Civil Case No. 3815 entitled "Jardinico vs.
Kee" which is now pending appeal with the Court of
Appeals, regardless of the outcome of the decision
shall be mutually disregarded and shall not be
pursued by the parties herein and shall be
considered dismissed and without effect whatsoever; 16
Kee asserts though that the "terms and conditions in said
deed of sale are strictly for the parties thereto" and that
"(t)here is no waiver made by either of the parties in said
deed of whatever favorable judgment or award the

honorable respondent Court of Appeals may make in their

favor against herein petitioner Pleasantville Development
Corporation and/or private respondent C.T. Torres
Enterprises; Inc." 17
Obviously, the deed of sale can have no effect on the
liability of petitioner. As we have earlier stated, petitioner's
liability is grounded on the negligence of its agent. On the
other hand, what the deed of sale regulates are the
reciprocal rights of Kee and Jardinico; it stressed that they
had reached an agreement independent of the outcome of
the case.
Petitioner further assails the following holding of the Court
of Appeals:
2. Third-party defendants C.T. Torres Enterprises,
Inc. and Pleasantville Development Corporation
are solidarily liable under the following
circumstances:
a. If Eldred Jardinico decides to
appropriate the improvements and,
thereafter, remove these structures, the
third-party defendants shall answer for all
demolition expenses and the value of the
improvements thus destroyed or rendered
useless;
b. If Jardinico prefers that Kee buy the
land, the third-party defendants shall
answer for the amount representing the
value of Lot 9 that Kee should pay to
Jardinico. 18

Petitioner contends that if the above holding would be

carried out, Kee would be unjustly enriched at its expense.
In other words, Kee would be able to own the lot, as buyer,
without having to pay anything on it, because the
aforequoted portion of respondent Court's Decision would
require petitioner and CTTEI jointly and solidarily to
"answer" or reimburse Kee therefor.

We agree with petitioner.

Petitioner' s liability lies in the negligence of its agent
CTTEI. For such negligence, the petitioner should be held
liable for damages. Now, the extent and/or amount of
damages to be awarded is a factual issue which should be
determined after evidence is adduced. However, there is no
showing that such evidence was actually presented in the
trial court; hence no damages could flow be awarded.
The rights of Kee and Jardinico vis-a-vis each other, as
builder in good faith and owner in good faith, respectively,
are regulated by law (i.e., Arts. 448, 546 and 548 of the
Civil Code). It was error for the Court of Appeals to make a
"slight modification" in the application of such law, on the
ground of "equity". At any rate, as it stands now, Kee and
Jardinico have amicably settled through their deed of sale
their rights and obligations with regards to Lot 9. Thus, we
delete items 2 (a) and (b) of the dispositive portion of the
Court of Appeals' Decision [as reproduced above] holding
petitioner and CTTEI solidarily liable.
The Third Issue: Attorney's Fees
The MTCC awarded Jardinico attorney's fees and costs in
the amount of P3,000.00 and P700.00, respectively, as
prayed for in his complaint. The RTC deleted the award,
consistent with its ruling that petitioner was without fault or
negligence. The Court of Appeals, however, reinstated the
award of attorney's fees after ruling that petitioner was
liable for its agent's negligence.

The award of attorney's fees lies within the discretion of the

court and depends upon the circumstances of each case 19.
We shall not interfere with the discretion of the Court of
Appeals. Jardinico was compelled to litigate for the
protection of his interests and for the recovery of damages
sustained as a result of the negligence of petitioner's
agent 20.
In sum, we rule that Kee is a builder in good faith. The
disposition of the Court of Appeals that Kee "is entitled to
the rights granted him under Articles 448, 546 and 548 of

the New Civil Code" is deleted, in view of the deed of sale

entered into by Kee and Jardinico, which deed now
governs the rights of Jardinico and Kee as to each other.
There is also no further need, as ruled by the appellate
Court, to remand the case to the court of origin "for
determination of the actual value of the improvements and
the property (Lot 9), as well as for further proceedings in
conformity with Article 448 of the New Civil Code."
WHEREFORE , the petition is partially GRANTED. The
Decision of the Court of Appeals is hereby MODIFIED as
follows:
(1) Wilson Kee is declared a builder in good faith;
(2) Petitioner Pleasantville Development
Corporation and respondent C.T. Torres
Enterprises, Inc. are declared solidarily liable for
damages due to negligence; however, since the
amount and/or extent of such damages was not
proven during the trial, the same cannot now be
quantified and awarded;
(3) Petitioner Pleasantville Development
Corporation and respondent C.T. Torres
Enterprises, Inc. are ordered to pay in solidum the
amount of P3,000.00 to Jardinico as attorney's
fees, as well as litigation expenses; and
(4) The award of rentals to Jardinico is dispensed
with.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.

FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30
a.m. private respondent Leonardo Dionisio was on his
way home he lived in 1214-B Zamora Street, Bangkal,
Makati from a cocktails-and-dinner meeting with his
boss, the general manager of a marketing corporation.
During the cocktails phase of the evening, Dionisio had
taken "a shot or two" of liquor. Dionisio was driving his
Volkswagen car and had just crossed the intersection of
General Lacuna and General Santos Streets at Bangkal,
Makati, not far from his home, and was proceeding down
General Lacuna Street, when his car headlights (in his
allegation) suddenly failed. He switched his headlights on
"bright" and thereupon he saw a Ford dump truck looming
some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand
side of General Lacuna Street (i.e., on the right hand side
of a person facing in the same direction toward which
Dionisio's car was proceeding), facing the oncoming traffic.
The dump truck was parked askew (not parallel to the
street curb) in such a manner as to stick out onto the street,
partly blocking the way of oncoming traffic. There were no
lights nor any so-called "early warning" reflector devices set
anywhere near the dump truck, front or rear. The dump
truck had earlier that evening been driven home by
petitioner Armando U. Carbonel, its regular driver, with the
permission of his employer Phoenix, in view of work

scheduled to be carried out early the following morning,

Dionisio claimed that he tried to avoid a collision by
swerving his car to the left but it was too late and his car
smashed into the dump truck. As a result of the collision,
Dionisio suffered some physical injuries including some
permanent facial scars, a "nervous breakdown" and loss of
two gold bridge dentures.
Dionisio commenced an action for damages in the Court of
First Instance of Pampanga basically claiming that the legal
and proximate cause of his injuries was the negligent
manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate
cause of Dionisio's injuries was his own recklessness in
driving fast at the time of the accident, while under the
influence of liquor, without his headlights on and without a
curfew pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of the
dump truck driver.
The trial court rendered judgment in favor of Dionisio and
against Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the
sum of P 15,000.00 for hospital bills and
the replacement of the lost dentures of
plaintiff;
(2) To pay plaintiff jointly and severally the
sum of P 1,50,000.-00 as loss of expected
income for plaintiff brought about the
accident in controversy and which is the
result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally
the sum of P 10,000. as moral damages for
the unexpected and sudden withdrawal of
plaintiff from his lifetime career as a
marketing man; mental anguish, wounded
feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic
insecurity, and the untold sorrows and
frustration in life experienced by plaintiff

and his family since the accident in

controversy up to the present time;
(4) To pay plaintiff jointly and severally the
sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle
amicably this case with the plaintiff before
the filing of this case in court for a smaller
amount.
(5) To pay the plaintiff jointly and severally
the sum of P 4,500.00 due as and for
attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate
Appellate Court. That court in CA-G.R. No. 65476 affirmed
the decision of the trial court but modified the award of
damages to the following extent:
1. The award of
P15,000.00 as
compensatory damages
was reduced
to P6,460.71, the latter
being the only amount that
the appellate court found
the plaintiff to have proved
as actually sustained by
him;
2. The award of
P150,000.00 as loss of
expected income was
reduced
to P100,000.00,basically
because Dionisio had
voluntarily resigned his job
such that, in the opinion of
the appellate court, his
loss of income "was not
solely attributable to the
accident in question;" and

3. The award of
P100,000.00 as moral
damages was held by the
appellate court as
excessive and
unconscionable and hence
reduced to P50,000.00.
The award
of P10,000.00 as
exemplary damages
and P4,500.00 as
attorney's fees and costs
remained untouched.
This decision of the Intermediate Appellate Court is now
before us on a petition for review.
Both the trial court and the appellate court had made fairly
explicit findings of fact relating to the manner in which the
dump truck was parked along General Lacuna Street on
the basis of which both courts drew the inference that there
was negligence on the part of Carbonel, the dump truck
driver, and that this negligence was the proximate cause of
the accident and Dionisio's injuries. We note, however, that
both courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and proximate
cause of the accident was not the way in which the dump
truck had been parked but rather the reckless way in which
Dionisio had driven his car that night when he smashed into
the dump truck. The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was
"in some way, negligent" but apparently failed to see the
relevance of Dionisio's negligence and made no further
mention of it. We have examined the record both before the
trial court and the Intermediate Appellate Court and we find
that both parties had placed into the record sufficient
evidence on the basis of which the trial court and the
appellate court could have and should have made findings
of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix
and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that
negligence was merely a "passive and static condition" and
that private respondent Dionisio's recklessness constituted
an intervening, efficient cause determinative of the accident

and the injuries he sustained. The need to administer

substantial justice as between the parties in this case,
without having to remand it back to the trial court after
eleven years, compels us to address directly the contention
put forward by the petitioners and to examine for ourselves
the record pertaining to Dionisio's alleged negligence which
must bear upon the liability, or extent of liability, of Phoenix
and Carbonel.
There are four factual issues that need to be looked into:
(a) whether or not private respondent Dionisio had a curfew
pass valid and effective for that eventful night; (b) whether
Dionisio was driving fast or speeding just before the
collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with
the dump truck or whether those headlights accidentally
malfunctioned moments before the collision; and (d)
whether Dionisio was intoxicated at the time of the
accident.
As to the first issue relating to the curfew pass, it is clear
that no curfew pass was found on the person of Dionisio
immediately after the accident nor was any found in his car.
Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to
the Makati Medical Center for emergency treatment
immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined
them along with the contents of pockets together with
Patrolman Cuyno. 1 Private respondent Dionisio was not
able to produce any curfew pass during the trial. Instead,
he offered the explanation that his family may have
misplaced his curfew pass. He also offered a certification
(dated two years after the accident) issued by one Major
Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando,
Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila. This
certification was to the effect that private respondent
Dionisio had a valid curfew pass. This certification did not,
however, specify any pass serial number or date or period
of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove
possession of a valid curfew pass during the night of the
accident and that the preponderance of evidence shows
that he did not have such a pass during that night. The

relevance of possession or non-possession of a curfew

pass that night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home and
whether he had indeed purposely put out his headlights
before the accident, in order to avoid detection and possibly
arrest by the police in the nearby police station for travelling
after the onset of curfew without a valid curfew pass.
On the second issue whether or not Dionisio was
speeding home that night both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the testimony of
Patrolman Cuyno who was at the scene of the accident
almost immediately after it occurred, the police station
where he was based being barely 200 meters away.
Patrolman Cuyno testified that people who had gathered at
the scene of the accident told him that Dionisio's car was
"moving fast" and did not have its headlights on. 2 Dionisio,
on the other hand, claimed that he was travelling at a
moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General
Lacuna Streets and had started to accelerate when his
headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's
testimony was hearsay and did not fag within any of the
recognized exceptions to the hearsay rule since the facts
he testified to were not acquired by him through official
information and had not been given by the informants
pursuant to any duty to do so. Private respondent's
objection fails to take account of the fact that the testimony
of Patrolman Cuyno is admissible not under the official
records exception to the hearsay rule 4 but rather as part of
the res gestae. 5 Testimonial evidence under this exception
to the hearsay rule consists of excited utterances made on
the occasion of an occurrence or event sufficiently startling
in nature so as to render inoperative the normal reflective
thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and
suddenly smashing into a stationary object in the dead of
night is a sufficiently startling event as to evoke
spontaneous, rather than reflective, reactions from

observers who happened to be around at that time. The

testimony of Patrolman Cuyno was therefore admissible as
part of the res gestae and should have been considered by
the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it
could not, have purported to describe quantitatively the
precise velocity at winch Dionisio was travelling just before
impact with the Phoenix dump truck.

The conclusion we draw from the factual circumstances

outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home
that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the
intersection of General Lacuna and General Santos Streets
and thus did not see the dump truck that was parked askew
and sticking out onto the road lane.

A third related issue is whether Dionisio purposely turned

off his headlights, or whether his headlights accidentally
malfunctioned, just moments before the accident. The
Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so. It
is the petitioners' contention that Dionisio purposely shut off
his headlights even before he reached the intersection so
as not to be detected by the police in the police precinct
which he (being a resident in the area) knew was not far
away from the intersection. We believe that the petitioners'
theory is a more credible explanation than that offered by
private respondent Dionisio i.e., that he had his
headlights on but that, at the crucial moment, these had in
some mysterious if convenient way malfunctioned and
gone off, although he succeeded in switching his lights on
again at "bright" split seconds before contact with the dump
truck.

Nonetheless, we agree with the Court of First Instance and

the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries
was the wrongful or negligent manner in which the dump
truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on
the one hand and the accident and respondent's injuries on
the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck
was a natural and foreseeable consequence of the truck
driver's negligence.

A fourth and final issue relates to whether Dionisio was

intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the effect
that private respondent Dionisio smelled of liquor at the
time he was taken from his smashed car and brought to the
Makati Medical Center in an unconscious condition. 7 This
testimony has to be taken in conjunction with the admission
of Dionisio that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that this
evidence is sufficient to show that Dionisio was so heavily
under the influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless imprudence. 8There
simply is not enough evidence to show how much liquor he
had in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness. We are
also aware that "one shot or two" of hard liquor may affect
different people differently.

The petitioners, however, urge that the truck driver's

negligence was merely a "passive and static condition" and
that private respondent Dionisio's negligence was an
"efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the older
cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that
even in the United States, the distinctions between "cause"
and "condition" which the 'petitioners would have us adopt
have already been "almost entirely discredited." Professors
and Keeton make this quite clear:
Cause and condition. Many courts have
sought to distinguish between the active
"cause" of the harm and the existing
"conditions" upon which that cause
operated. If the defendant has created only
a passive static condition which made the
damage possible, the defendant is said not
to be liable. But so far as the fact of

causation is concerned, in the sense of

necessary antecedents which have played
an important part in producing the result it
is quite impossible to distinguish between
active forces and passive situations,
particularly since, as is invariably the case,
the latter are the result of other active
forces which have gone before. The
defendant who spills gasoline about the
premises creates a "condition," but the act
may be culpable because of the danger of
fire. When a spark ignites the gasoline, the
condition has done quite as much to bring
about the fire as the spark; and since that
is the very risk which the defendant has
created, the defendant will not escape
responsibility. Even the lapse of a
considerable time during which the
"condition" remains static will not
necessarily affect liability; one who digs a
trench in the highway may still be liable to
another who fans into it a month
afterward. "Cause" and "condition" still find
occasional mention in the decisions; but
the distinction is now almost entirely
discredited. So far as it has any validity at
all, it must refer to the type of case where
the forces set in operation by the
defendant have come to rest in a position
of apparent safety, and some new force
intervenes. But even in such cases, it is
not the distinction between "cause" and
"condition" which is important but the
nature of the risk and the character of the
intervening cause. 9
We believe, secondly, that the truck driver's negligence far
from being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between
the dump truck and the private respondent's car would in
an probability not have occurred had the dump truck not
been parked askew without any warning lights or reflector
devices. The improper parking of the dump truck created
an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk,
the truck driver must be held responsible. 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 consequent
manner 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 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. It is helpful to quote once more from Professor and
Keeton:
Foreseeable Intervening Causes. If the
intervening cause is one which in ordinary
human experience is reasonably to be
anticipated or one which the defendant has
reason to anticipate under the particular
circumstances, the defendant may be
negligence among other reasons, because
of failure to guard against it; or the
defendant may be negligent only for that
reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual
and customary wind arising later wig
spread it beyond the defendant's own
property, and therefore to take precautions
to prevent that event. The person who
leaves the combustible or explosive
material exposed in a public place may
foresee the risk of fire from some
independent source. ... In all of these
cases there is an intervening cause
combining with the defendant's conduct to
produce the result and in each case the
defendant's negligence consists in failure
to protect the plaintiff against that very risk.
Obviously the defendant cannot be
relieved from liability by the fact that the
risk or a substantial and important part of
the risk, to which the defendant has
subjected the plaintiff has indeed come to

pass. Foreseeable intervening forces are

within the scope original risk, and hence of
the defendant's negligence. The courts are
quite generally agreed that intervening
causes which fall fairly in this category will
not supersede the defendant's
responsibility.
Thus it has been held that a defendant will
be required to anticipate the usual weather
of the vicinity, including all ordinary forces
of nature such as usual wind or rain, or
snow or frost or fog or even lightning; that
one who leaves an obstruction on the road
or a railroad track should foresee that a
vehicle or a train will run into it; ...
The risk created by the defendant may
include the intervention of the foreseeable
negligence of others. ... [The standard of
reasonable conduct may require the
defendant to protect the plaintiff against
'that occasional negligence which is one of
the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and
forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of
heavy traffic becomes liable when the
plaintiff is run down by a car, even though
the car is negligently driven; and one who
parks an automobile on the highway
without lights at night is not relieved of
responsibility when another negligently
drives into it. --- 10
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" and that consequently respondent Dionisio may
recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the
Philippines).
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. The theory here of petitioners

is that while the petitioner truck driver was negligent,

private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that
Dionisio having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance doctrine
of the common law was imported into our jurisdiction
by Picart vs. Smith 11 but it is a matter for debate whether,
or to what extent, it has found its way into the Civil Code of
the Philippines. The historical function of that doctrine in the
common law was to mitigate the harshness of another
common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who
was also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or
omission of the defendant. 13 The common law notion of
last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the casualty
and failed to do so. 14 Accordingly, it is difficult to see what
role, if any, the common law last clear chance doctrine has
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 of the Philippines. 15
Is there perhaps a general concept of "last clear chance"
that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil law
jurisdiction like ours? We do not believe so. Under Article
2179, the task of a court, in technical terms, is to determine
whose negligence the plaintiff's or the defendant's
was the legal or proximate cause of the injury. That task is
not simply or even primarily an exercise in chronology or
physics, as the petitioners seem to imply by the use of
terms like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more
fundamental importance are the nature of the negligent act
or omission of each party and the character and gravity of
the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and
therefore his employer) should be absolved from
responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased

diligence which had become necessary to avoid the peril

precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to
wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own
negligent act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and to
allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very
bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix16 in supervising its employees properly and
adequately. The respondent appellate court in effect found,
correctly in our opinion, that Phoenix was not able to
overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was work
to be done early the following morning, when coupled with
the failure to show any effort on the part of Phoenix to
supervise the manner in which the dump truck is parked
when away from company premises, is an affirmative
showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account
the comparative negligence of private respondent Dionisio
on one hand and petitioners Carbonel and Phoenix upon
the other hand, 17 we believe that the demands of
substantial justice are satisfied by allocating most of the
damages on a 20-80 ratio. Thus, 20% of the damages
awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and
P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs
to be paid by petitioners Carbonel and Phoenix who shall
be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall be
borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. 18 We see no
sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate
court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and

moral damages private respondent Dionisio is entitled to by

20% of such amount. Costs against the petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40452 October 12, 1989
GREGORIO GENOBIAGON, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Mario D. Ortiz for petitioner.

GRIO-AQUINO, J.:
This is a petition for review of the Court of Appeals'
decision in CA-G.R. No. 09949-CR, dated October 10,
1974, affirming the conviction of the petitioner of the crime
of homicide thru reckless imprudence.
As found by the Court of Appeals, the facts of this case are:
On December 31,1959, at about 7:30
o'clock in the evening, a rig driven by
appellant bumped an old woman who was
crossing T. Padilla St., Cebu City, at the
right side of T. Padilla Market. The
appellant's rig was following another at a
distance of two meters. The old woman
started to cross when the first rig was
approaching her, but as appellant's vehicle
was going so fast not only because of the
steep down-grade of the road, but also
because he was trying to overtake the rig
ahead of him, the appellant's rig bumped
the old woman, who as a consequence, fell
at the middle of the road. The appellant
continued to drive on, but a by-stander,
one Vicente Mangyao, who just closed his
store in market in order to celebrate the
coming of the New Year, and who saw the

incident right before him, shouted at the

appellant to stop. He ran after appellant
when the latter refused to stop. Overtaking
the appellant, Mangyao asked him why he
bumped the old woman and his answer
was, 'it was the old woman that bumped
him.' The appellant went back to the place
where the old woman was struck by his rig.
The old woman was unconscious, and the
food and viands she was carrying were
scattered on her body. The victim was then
loaded in a jeep and brought to the hospital
where she died three hours later (Exh. C).
The findings after an autopsy are as
follows:
Contusion with Hematoma
Left, Frontal and OccipitoParietal Regionas Fracture
Occipito-Parietal Bone
Cerebral Hemorrhage.
The deceased was an eighty-one-year old
woman named Rita B. Cabrera. (pp. 31-32,
Rollo.)
Petitioner was charged with homicide thru reckless
imprudence in the Court of First Instance of Cebu (Crim.
Case No. V7855). The trial court found petitioner guilty of
the felony charged and sentenced him to "suffer an
indeterminate penalty of three (3) months of arresto
mayor as minimum to one (1) year, one (1) month and
eleven (11) days of prision correccional as maximum, to
indemnify the heirs of Rita Banzon Cabrera the sum of
P6,000 with subsidiary imprisonment in case of insolvency,
not to exceed 1/3 of the principal penalty and to pay the
costs" (p. 3, Appellant's Brief, p. 56, Rollo).
The petitioner appealed to the Court of Appeals (CA-G.R.
09949-CR)which,on October 10,1974,conviction of the
accused but increased his civil liability to P12,000. The
dispositive portion of its decision reads:
WHEREFORE, finding no error in the
judgment appealed from except in the

amount of indemnity to be paid to the heirs

of the deceased, Rita B. Cabrera, which is
the sum of P6,000.00 with subsidiary
imprisonment in case of insolvency which
should be raised to P12,000.00 (People vs.
Pantoja, G.R. No. L-18793, October 11,
1968, 25 SCRA 468) but without subsidiary
imprisonment in case of insolvency, the
same should be, as it is hereby affirmed in
all other respects with costs. (P. 37, Rollo.)
After his motion for reconsideration of the Court of Appeals'
decision was denied, he filed a petition for review in this
Court, alleging that the Court of Appeals erred:
1. in not finding that the reckless
negligence of the victim was the proximate
cause of the accident which led to her
death;
2. in not acquitting the petitioner on the
ground of reasonable doubt; and
3. in unjustly increasing the civil liability of
the petitioner from P6,000.00 to
P12,000.00, although the circumstances of
the victim and the accused (petitioner) do
not warrant such increase.
It is quite evident that all the issues raised in the petition for
review are factual. Well-entrenched in our jurisprudence is
the rule that findings of fact of the trial court and the Court
of Appeals are binding upon us (Bernardo vs. Bernardo,
101 SCRA 351; Vda. De Roxas vs. IAC, 143 SCRA 77;
Republic vs. IAC, 144 SCRA 705).
The alleged contributory negligence of the victim, if any,
does not exonerate the accused. "The defense of
contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot
allege the negligence of another to evade the effects of his
own negligence (People vs. Orbeta, CA-G.R. No. 321,
March 29,1947)." (People vs. Quinones, 44 O.G. 1520).

The petitioner's contention that the Court of Appeals

unjustly increased his civil liability to P12,000, is devoid of
merit. The prevailing jurisprudence in fact provides that
indemnity for death in homicide or murder is P30,000
(People vs. De la Fuente, [1983]126 SCRA 518; People vs.

Centeno, 130 SCRA 198). Accordingly, the civil liability of

the petitioner is increased to P30,000.
WHEREFORE, the appealed decision is affirmed with
modification as to the civil liability of the petitioner which is
hereby increased to P30,000. Costs against petitioner.

SO ORDERED.