Bernardo vs Legaspi, G.R. No.

9308, December 23, 1914

Republic
of
the
SUPREME
Manila

This is equally true of the defendant; and as both of them, by their negligent acts,
contributed to the determining cause of the accident, neither can recover.

Philippines
COURT

The judgment appealed from is affirmed, with costs against the appellant.itc-alf

EN BANC
G.R. No. L-9308 December 23, 1914
JUAN
vs.
M. B. LEGASPI, defendant-appellee.
Roman
de
No appearance for appellee.

PLDT vs CA, G.R. No. 57079, September 29, 1989

Republic
of
the
SUPREME
Manila

BERNARDO, plaintiff-appellant,

Jesus

for

appellant.

Philippines
COURT

SECOND DIVISION
G.R. No. L-57079 September 29, 1989
PHILIPPINE
LONG
DISTANCE
TELEPHONE
CO.,
INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.

MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the city of Manila
dismissing the complaint on the merits filed in an action to recover damages for
injuries sustained by plaintiff's automobile by reason of defendant's negligence in
causing a collision between his automobile and that of plaintiff. The court in its
judgment also dismissed a cross-complaint filed by the defendant, praying for
damages against the plaintiff on the ground that the injuries sustained by the
defendant's automobile in the collision referred to, as well as those to plaintiff's
machine, were caused by the negligence of the plaintiff in handling his automobile.

REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of
First Instance of Negros Occidental 1 by private respondent spouses against
petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the
injuries they sustained in the evening of July 30, 1968 when their jeep ran over a
mound of earth and fell into an open trench, an excavation allegedly undertaken by
PLDT for the installation of its underground conduit system. The complaint alleged
that respondent Antonio Esteban failed to notice the open trench which was left
uncovered because of the creeping darkness and the lack of any warning light or
signs. As a result of the accident, respondent Gloria Esteban allegedly sustained
injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the
respondent husband suffered cut lips. In addition, the windshield of the jeep was
shattered. 2

The court found upon the evidence that both the plaintiff and the defendant were
negligent in handling their automobiles and that said negligence was of such a
character and extent on the part of both as to prevent either from
recovering.1awphil.net
Upon the facts, as they appear of record, the judgment must be affirmed, as the
evidence clearly supports the decision of the trial court. The law applicable to the
facts also requires an affirmance of the judgment appealed from. Where the plaintiff in
a negligence action, by his own carelessness contributes to the principal occurrence,
that is, to the accident, as one of the determining causes thereof, he cannot recover.

denied said motion for reconsideration.10 This resolution was received by respondent
spouses on February 22, 1980. 11

PLDT, in its answer, denies liability on the contention that the injuries sustained by
respondent spouses were the result of their own negligence and that the entity which
should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the manhole and the
conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte
alleging that, under the terms of their agreement, PLDT should in no manner be
answerable for any accident or injuries arising from the negligence or carelessness of
Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not aware
nor was it notified of the accident involving respondent spouses and that it had
complied with the terms of its contract with PLDT by installing the necessary and
appropriate standard signs in the vicinity of the work site, with barricades at both ends
of the excavation and with red lights at night along the excavated area to warn the
traveling public of the presence of excavations. 5

On February 29, 1980, respondent Court of Appeals received private respondents'

motion for leave of court to file a second motion for reconsideration, dated February
27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by
Justice Agrava, allowed respondents to file a second motion for reconsideration,
within ten (10) days from notice thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private respondents had already filed
their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said
second motion for reconsideration. 15 The Court of Appeals, in view of the divergent
opinions on the resolution of the second motion for reconsideration, designated two
additional justices to form a division of five. 16 On September 3, 1980, said division of
five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the resolution dated, January
24,1980, and affirming in toto the decision of the lower court. 17

On October 1, 1974, the trial court rendered a decision in favor of private

respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant
Philippine Long Distance Telephone Company is hereby ordered
(A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as
moral damages and P5,000.00 exemplary damages; to plaintiff
Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from the
date of the filing of the complaint until fully paid. The defendant is
hereby ordered to pay the plaintiff the sum of P3,000.00 as
attorney's fees.

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for
reconsideration of the resolution of September 3, 1980, contending that the second
motion for reconsideration of private respondent spouses was filed out of time and
that the decision of September 25, 1979 penned by Justice Agrava was already final.
It further submitted therein that the relationship of Barte and petitioner PLDT should
be viewed in the light of the contract between them and, under the independent
contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May
11, 1981, respondent Court of Appeals promulgated its resolution denying said motion
to set aside and/or for reconsideration and affirming in toto the decision of the lower
court dated October 1, 1974. 19

(B) The third-party defendant is hereby ordered to reimburse

whatever amount the defendant-third party plaintiff has paid to the
plaintiff. With costs against the defendant. 6

Coming to this Court on a petition for review on certiorari, petitioner assigns the
following errors:

From this decision both PLDT and private respondents appealed, the latter appealing
only as to the amount of damages. Third-party defendant Barte did not appeal.

1. Respondent Court of Appeals erred in not denying private respondents' second

motion for reconsideration on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution of the Special Ninth Division,
dated January 24, 1980, are already final, and on the additional ground that said
second motion for reconsideration is pro forma.

On September 25, 1979, the Special Second Division of the Court of Appeals
rendered a decision in said appealed case, with Justice Corazon Juliano Agrava
as ponente, reversing the decision of the lower court and dismissing the complaint of
respondent spouses. It held that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim for damages. 7 A copy of this
decision was received by private respondents on October 10, 1979. 8 On October 25,
1979, said respondents filed a motion for reconsideration dated October 24,
1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals

2. Respondent court erred in reversing the aforesaid decision and resolution and in
misapplying the independent contractor rule in holding PLDT liable to respondent
Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown

by the records and admitted by both parties, may be graphically presented as follows:

which to do so, they had only one (1) day from receipt of the order denying said
motion to file, with leave of court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980 of the resolution denying their
first motion for reconsideration, private respondents had two remedial options. On
February 23, 1980, the remaining one (1) day of the aforesaid reglementary period,
they could have filed a motion for leave of court to file a second motion for
reconsideration, conceivably with a prayer for the extension of the period within which
to do so. On the other hand, they could have appealed through a petition for review
on certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead,
they filed a motion for leave to file a second motion 'for reconsideration on February
29, 1980, and said second motion for reconsideration on March 7, 1980, both of
which motions were by then time-barred.

(a) September 25, 1979, a decision was rendered by the Court of

Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received by
private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by
private respondents;
(d) January 24, 1980, a resolution was issued denying said motion
for reconsideration;

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day
period, the running of which was suspended during the pendency of the first motion
for reconsideration, the Court of Appeals could no longer validly take further
proceedings on the merits of the case, much less to alter, modify or reconsider its
aforesaid decision and/or resolution. The filing of the motion for leave to file a second
motion for reconsideration by herein respondents on February 29, 1980 and the
subsequent filing of the motion itself on March 7, 1980, after the expiration of the
reglementary period to file the same, produced no legal effects. Only a motion for rehearing or reconsideration filed in time shall stay the final order or judgment sought to
be re-examined. 23

(e) February 22, 1980, a copy of said denial resolution was

received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for
reconsideration was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by
private respondents;

The consequential result is that the resolution of respondent court of March 11, 1980
granting private respondents' aforesaid motion for leave and, giving them an
extension of ten (10) days to file a second motion for reconsideration, is null and void.
The period for filing a second motion for reconsideration had already expired when
private respondents sought leave to file the same, and respondent court no longer
had the power to entertain or grant the said motion. The aforesaid extension of ten
(10) days for private respondents to file their second motion for reconsideration was
of no legal consequence since it was given when there was no more period to extend.
It is an elementary rule that an application for extension of time must be filed prior to
the expiration of the period sought to be extended. 24 Necessarily, the discretion of
respondent court to grant said extension for filing a second motion for reconsideration
is conditioned upon the timeliness of the motion seeking the same.

(h) March 11, 1980, a resolution was issued allowing respondents

to file a second motion for reconsideration within ten (10) days from
receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice
Zosa, reversing the original decision dated September 25, 1979
and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file
a second motion for reconsideration and, consequently, said second motion for
reconsideration itself were filed out of time.

No appeal having been taken seasonably, the respondent court's decision, dated
September 25, 1979, became final and executory on March 9, 1980. The subsequent
resolutions of respondent court, dated March 11, 1980 and September 3, 1980,
allowing private respondents to file a second motion for reconsideration and reversing
the original decision are null and void and cannot disturb the finality of the judgment

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the
time, provided that a second motion for reconsideration may be presented within
fifteen (15) days from notice of the order or judgment deducting the time in which the
first motion has been pending. 20 Private respondents having filed their first motion for
reconsideration on the last day of the reglementary period of fifteen (15) days within

nor restore jurisdiction to respondent court. This is but in line with the accepted rule
that once a decision has become final and executory it is removed from the power
and jurisdiction of the court which rendered it to further alter or amend, much less
revoke it. 25 The decision rendered anew is null and void. 26 The court's inherent power
to correct its own errors should be exercised before the finality of the decision or
order sought to be corrected, otherwise litigation will be endless and no question
could be considered finally settled. Although the granting or denial of a motion for
reconsideration involves the exercise of discretion, 27 the same should not be
exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law,
justice, reason and equity. 28

but not in such a way as to allow the outer lane to be freely and
conveniently passable to vehicles. The situation could have been
worse to the south of the ACCIDENT MOUND for which reason no
picture of the ACCIDENT MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as
plaintiff-husband claimed. At that speed, he could have braked the
vehicle the moment it struck the ACCIDENT MOUND. The jeep
would not have climbed the ACCIDENT MOUND several feet as
indicated by the tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25 kilometers an
hour, plaintiff's would not have been thrown against the windshield
and they would not have suffered their injuries.

Prescinding from the aforesaid procedural lapses into the substantive merits of the
case, we find no error in the findings of the respondent court in its original decision
that the accident which befell private respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to negligent omission on the part
of petitioner PLDT. Such findings were reached after an exhaustive assessment and
evaluation of the evidence on record, as evidenced by the respondent court's
resolution of January 24, 1980 which we quote with approval:

Fourth. If the accident did not happen because the jeep was
running quite fast on the inside lane and for some reason or other it
had to swerve suddenly to the right and had to climb over the
ACCIDENT MOUND, then plaintiff-husband had not exercised the
diligence of a good father of a family to avoid the accident. With the
drizzle, he should not have run on dim lights, but should have put
on his regular lights which should have made him see the
ACCIDENT MOUND in time. If he was running on the outside lane
at 25 kilometers an hour, even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was negligence on his
part. The ACCIDENT MOUND was relatively big and visible, being
2 to 3 feet high and 1-1/2 feet wide. If he did not see the
ACCIDENT MOUND in time, he would not have seen any warning
sign either. He knew of the existence and location of the
ACCIDENT MOUND, having seen it many previous times. With
ordinary precaution, he should have driven his jeep on the night of
the accident so as to avoid hitting the ACCIDENT MOUND. 29

First. Plaintiff's jeep was running along the inside lane of Lacson
Street. If it had remained on that inside lane, it would not have hit
the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT
MOUND was hit by the jeep swerving from the left that is, swerving
from the inside lane. What caused the swerving is not disclosed;
but, as the cause of the accident, defendant cannot be made liable
for the damages suffered by plaintiffs. The accident was not due to
the absence of warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane. That may explain plaintiffhusband's insistence that he did not see the ACCIDENT MOUND
for which reason he ran into it.

The above findings clearly show that the negligence of respondent Antonio Esteban
was not only contributory to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its determining factors, and
thereby precludes their right to recover damages. 30 The perils of the road were known
to, hence appreciated and assumed by, private respondents. By exercising
reasonable care and prudence, respondent Antonio Esteban could have avoided the
injurious consequences of his act, even assuming arguendo that there was some
alleged negligence on the part of petitioner.

Second. That plaintiff's jeep was on the inside lane before it

swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the south of the
ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already
been covered except the 3 or 4 meters where the ACCIDENT
MOUND was located. Exhibit B-1 shows that the ditches on Lacson
Street north of the ACCIDENT MOUND had already been covered,

The presence of warning signs could not have completely prevented the accident; the
only purpose of said signs was to inform and warn the public of the presence of
excavations on the site. The private respondents already knew of the presence of
said excavations. It was not the lack of knowledge of these excavations which caused
the jeep of respondents to fall into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the accident mound. As opined in
some quarters, the omission to perform a duty, such as the placing of warning signs
on the site of the excavation, constitutes the proximate cause only when the doing of
the said omitted act would have prevented the injury. 31 It is basic that private
respondents cannot charge PLDT for their injuries where their own failure to exercise
due and reasonable care was the cause thereof. It is both a societal norm and
necessity that one should exercise a reasonable degree of caution for his own
protection. Furthermore, respondent Antonio Esteban had the last clear chance or
opportunity to avoid the accident, notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and location of the excavations there. It
was his negligence that exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.

police department of Bacolod, defendant would not be able to

determine for itself which of the conflicting testimonies of plaintiffs is
correct as to the report or non-report of the accident to the police
department. 32
A person claiming damages for the negligence of another has the burden of proving
the existence of such fault or negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the burden in the first instance of
proving the existence of the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980
and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on
September 25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.

Manila Electric vs Remoquillo , G.R. No. L-8328, May 18, 1956

Moreover, we also sustain the findings of respondent Court of Appeals in its original
decision that there was insufficient evidence to prove any negligence on the part of
PLDT. We have for consideration only the self-serving testimony of respondent
Antonio Esteban and the unverified photograph of merely a portion of the scene of the
accident. The absence of a police report of the incident and the non-submission of a
medical report from the hospital where private respondents were allegedly treated
have not even been satisfactorily explained.

EN BANC
[G.R. No. L-8328. May 18, 1956.]
MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO,
in his own behalf and as guardian of the minors MANUEL,
BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and
AURORA, all surnamed MAGNO, SALUD MAGNO, and the COURT OF
APPEALS (Second Division),Respondents.

As aptly observed by respondent court in its aforecited extended resolution of

January 24, 1980

DECISION
MONTEMAYOR, J.:

(a) There was no third party eyewitness of the accident. As to how

the accident occurred, the Court can only rely on the testimonial
evidence of plaintiffs themselves, and such evidence should be
very carefully evaluated, with defendant, as the party being
charged, being given the benefit of any doubt. Definitely without
ascribing the same motivation to plaintiffs, another person could
have deliberately engineered a similar accident in the hope and
expectation that the Court can grant him substantial moral and
exemplary damages from the big corporation that defendant is. The
statement is made only to stress the disadvantageous position of
defendant which would have extreme difficulty in contesting such
person's claim. If there were no witness or record available from the

On August 22, 1950, Efren Magno went to the 3-story house of Antonio
Pealoza, his stepbrother, located on Rodriguez Lanuza Street, Manila, to
repair a media agua said to be in a leaking condition. The media agua
was just below the window of the third story. Standing on said media
agua, Magno received from his son thru that window a 3 X 6 galvanized
iron sheet to cover the leaking portion, turned around and in doing so the
lower end of the iron sheet came into contact with the electric wire of the
Manila Electric Company (later referred to as the Company) strung parallel
to the edge of the media agua and 2 1/2 feet from it, causing his death
by electrocution. His widow and children fled suit to recover damages from
the company. After hearing, the trial court rendered judgment in their favor
P10,000 as compensatory damages; chan roblesvirtualawlibraryP784 as

actual damages; chan roblesvirtualawlibraryP2,000 as moral and

exemplary damages; chan roblesvirtualawlibraryand P3,000 as attorneys
fees, with costs. On appeal to the Court of Appeals, the latter affirmed the
judgment with slight modification by reducing the attorneys fees from
P3,000 to P1,000 with costs. The electric company has appealed said
decision to us.

media agua was constructed the owner was given a final permit of
occupancy of the house cralaw .
cralaw The wire was an exposed, high tension wire carrying a load of
3,600 volts. There was, according to Appellant, no insulation that could
have rendered it safe, first, because there is no insulation material in
commercial use for such kind of wire; chan roblesvirtualawlibraryand
secondly, because the only insulation material that may be effective is still
in the experimental stage of development and, anyway, its costs would be
prohibitive

The findings of fact made by the Court of Appeals which are conclusive are
stated in the following portions of its decision which we reproduce
below:chanroblesvirtuallawlibrary
The electric wire in question was an exposed, uninsulated primary wire
stretched between poles on the street and carrying a charge of 3,600 volts.
It was installed there some two years before Pealozas house was
constructed. The record shows that during the construction of said house a
similar incident took place, although fortunate]y with much less tragic
consequences. A piece of wood which a carpenter was holding happened
to come in contact with the same wire, producing some sparks. The owner
of the house forthwith complained to Defendant about the danger which
the wire presented, and as a result Defendant moved one end of the wire
farther from the house by means of a brace, but left the other end where it
was.

The theory followed by the appellate court in finding for the Plaintif is that
although the owner of the house in constructing the media agua in
question exceeded the limits fixed in the permit, still, after making that
media agua, its construction though illegal, was finally approved because
he
was
given
a
final
permit
to
occupy
the
house; chan
roblesvirtualawlibrarythat it was the company that was at fault and was
guilty of negligence because although the electric wire in question had
been installed long before the construction of the house and in accordance
with the ordinance fixing a minimum of 3 feet, mere compliance with the
regulations does not satisfy the requirement of due diligence nor avoid the
need for adopting such other precautionary measures as may be
warranted; chan
roblesvirtualawlibrarythat
negligence
cannot
be
determined by a simple matter of inches; chan roblesvirtualawlibrarythat
all that the city did was to prescribe certain minimum conditions and that
just because the ordinance required that primary electric wires should be
not less than 3 feet from any house, the obligation of due diligence is not
fulfilled by placing such wires at a distance of 3 feet and one inch,
regardless of other factors. The appellate court, however, refrained from
stating or suggesting what other precautionary measures could and should
have been adopted.

At any rate, as revealed by the ocular inspection of the premises ordered

by the trial court, the distance from the electric wire to the edge of the
media agua on which the deceased was making repairs was only 30
inches or 2 1/2 feet. Regulations of the City of Manila required that all
wires be kept three feet from the building. Appellant contends that in
applying said regulations to the case at bar the reckoning should not be
from the edge of the media agua but from the side of the house and that,
thus measured, the distance was almost 7 feet, or more then the minimum
prescribed. This contention is manifestly groundless, for not only is a
media agua an integral part of the building to which it is attached but to
exclude it in measuring the distance would defeat the purpose of the
regulation. Appellant points out, nevertheless, that even assuming that the
distance, within the meaning of the city regulations, should be measured
from the edge of the media agua, the fact that in the case of the house
involved herein such distance was actually less than 3 feet was due to the
fault of the owner of said house, because the city authorities gave him a
permit to construct a media agua only one meter or 39 1/2 inches wide,
but instead he built one having a width of 65 3/4 inches, 17 3/8 inches
more than the width permitted by the authorities, thereby reducing the
distance to the electric wire to less than the prescribed minimum of 3 feet.

After a careful study and discussion of the case and the circumstances
surrounding the same, we are inclined to agree to the contention
of Petitioner Company that the death of Magno was primarily caused by his
own negligence and in some measure by the too close proximity of the
media agua or rather its edge to the electric wire of the company by
reason of the violation of the original permit given by the city and the
subsequent approval of said illegal construction of the media agua. We
fail to see how the Company could be held guilty of negligence or as
lacking in due diligence. Although the city ordinance called for a distance
of 3 feet of its wires from any building, there was actually a distance of 7
feet and 2 3/4 inches of the wires from the side of the house of Pealoza.
Even considering said regulation distance of 3 feet as referring not to the
side of a building, but to any projecting part thereof, such as a media
agua, had the house owner followed the terms of the permit given him by
the city for the construction of his media agua, namely, one meter or 39
3/8 inches wide, the distance from the wires to the edge of said media
agua would have been 3 feet and 11 3/8 inches. In fixing said one meter
width for the media agua the city authorities must have wanted to

It is a fact that the owner of the house exceeded the limit fixed in the
permit given to him by the city authorities for the construction of the
media agua, and that if he had not done soAppellants wire would have
been 11 3/8 (inches) more than the required distance of three feet from
the edge of the media agua. It is also a fact, however, that after the

preserve the distance of at least 3 feet between the wires and any portion
of a building. Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8 inches and
leaving only a distance of 2 1/2 feet between the Media agua as illegally
constructed and the electric wires. And added to this violation of the
permit by the house owner, was its approval by the city through its agent,
possibly an inspector. Surely we cannot lay these serious violations of a
city ordinance and permit at the door of the Company, guiltless of breach
of any ordinance or regulation. The Company cannot be expected to be
always on the lookout for any illegal construction which reduces the
distance between its wires and said construction, and after finding that
said distance of 3 feet had been reduced, to change the stringing or
installation of its wires so as to preserve said distance. It would be much
easier for the City, or rather it is its duty, to be ever on the alert and to see
to it that its ordinances are strictly followed by house owners and to
condemn or disapprove all illegal constructions. Of course, in the present
case, the violation of the permit for the construction of the media agua
was not the direct cause of the accident. It merely contributed to it. Had
said media agua been only one meter wide as allowed by the permit,
Magno standing on it, would instinctively have stayed closer to or hugged
the side of the house in order to keep a safe margin between the edge of
the media agua and the yawning 2-story distance or height from the
ground, and possibly if not probably avoided the fatal contact between the
lower end of the iron sheet and the wires.

turned around swinging his arms with the motion of his body, thereby
causing his own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for
damages the Court of Appeals cites the case of Astudillo vs. Manila Electric
Co., 55 Phil., 427. We do not think the case is exactly applicable. There, the
premises involved was that elevated portion or top of the walls of
Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the
Court, it was a public place where persons come to stroll, to rest and to
enjoy themselves. The electric company was clearly negligent in placing
its wires so near the place that without much difficulty or exertion, a
person by stretching his hand out could touch them. A boy named
Astudillo, placing one foot on a projection, reached out and actually
grasped the electric wire and was electrocuted. The person electrocuted in
said case was a boy who was in no position to realize the danger. In the
present case, however, the wires were well high over the street where
there was no possible danger to pedestrians. The only possible danger was
to persons standing on the media agua, but a media agua can hardly
be considered a public place where persons usually gather. Moreover, a
person standing on the media agua could not have reached the wires
with his hands alone. It was necessary as was done by Magno to hold
something long enough to reach the wire. Furthermore, Magno was not a
boy or a person immature but the father of a family, supposedly a tinsmith
trained and experienced in the repair of galvanized iron roofs and media
agua. Moreover, in that very case of Astudillo vs. Manila Electric Co.,
supra, the court said that although it is a well- established rule that the
liability of electric companies for damages or personal injuries is governed
by the rules of negligence, nevertheless such companies are not insurers
of the safety of the public.

We realize that the presence of the wires in question quite close to the
house or its media agua was always a source of danger considering their
high voltage and uninsulated as they were, but the claim of the company
and the reasons given by it for not insulating said wires were unrefuted as
we gather from the findings of the Court of Appeals, and so we have to
accept them as satisfactory. Consequently, we may not hold said company
as guilty of negligence or wanting in due diligence in failing to insulate said
wires. As to their proximity to the house it is to be supposed that distance
of 3 feet was considered sufficiently safe by the technical men of the city
such as its electrician or engineer. Of course, a greater distance of say 6
feet or 12 feet would have increased the margin of safety but other factors
had to be considered such as that the wires could not be strung or the
posts supporting them could not be located too far toward the middle of
the street. Thus, the real cause of the accident or death was the reckless or
negligent act of Magno himself. When he was called by his stepbrother to
repair the media agua just below the third story window, it is to be
presumed that due to his age and experience he was qualified to do so.
Perhaps he was a tinsmith or carpenter and had training and experience
for the job. So, he could not have been entirely a stranger to electric wires
and the danger lurking in them. But unfortunately, in the instant care, his
training and experience failed him, and forgetting where he was standing,
holding the 6-feet iron sheet with both hands and at arms length, evidently
without looking, and throwing all prudence and discretion to the winds, he

But even assuming for a moment that under the facts of the present case
the Defendant electric company could be considered negligent in installing
its electric wires so close to the house and media agua in question, and
in failing to properly insulate those wires (although according to the
unrefuted claim of said company it was impossible to make the insulation
of that kind of wire), nevertheless to hold the Defendant liable in damages
for the death of Magno, such supposed negligence of the company must
have been the proximate and principal cause of the accident, because if
the act of Magno in turning around and swinging the galvanized iron sheet
with his hands was the proximate and principal cause of the electrocution,
then his heirs may not recover. Such was the holding of this Court in the
case of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil., 8. In
that case, the electric company was found negligent in leaving scattered
on its premises fulminating caps which Taylor, a 15- year old boy found and
carried home. In the course of experimenting with said fulminating caps,
he opened one of them, held it out with his hands while another boy
applied a lighted match to it, causing it to explode and injure one of his
eyes eventually causing blindness in said eye. Said this Tribunal in denying
recovery for the injury:chanroblesvirtuallawlibrary

 cralaw, so that while it may be true that these injuries would not have
been incurred but for the negligent act of the Defendant in leaving the
caps exposed on its premises, neverthelessPlaintifs own act was the
proximate and principal cause of the accident which inflicted the injury.

M.H. Rakes vs The Atlantic, G.R. No. L-1719, January 3, 1907

Republic
of
the
Philippines
SUPREME
COURT
Manila

To us it is clear that the principal and proximate cause of the electrocution

was not the electric wire, evidently a remote cause, but rather the reckless
and negligent act of Magno in turning around and swinging the galvanized
iron sheet without taking any precaution, such as looking back toward the
street and at the wire to avoid its contacting said iron sheet, considering
the latters length of 6 feet. For a better understanding of the rule on
remote and proximate cause with respect to injuries, we find the following
citation helpful:chanroblesvirtuallawlibrary

EN BANC
G.R. No. 1719

January 23, 1907

M.
H.,
RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A prior and remote cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed
in the condition except because of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the circumstances which result in
injury because of the prior defective condition, such subsequent act or
condition is the proximate cause. (45 C.J. pp. 931-332.).

A.
D.
Gibbs
F. G. Waite, & Thimas Kepner for appellee.

for

appellant.

TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in
the employment of the defendant, was at work transporting iron rails from a barge in
the harbor to the company's yard near the malecon in Manila. Plaintiff claims that but
one hand car was used in this work. The defendant has proved that there were two
immediately following one another, upon which were piled lengthwise seven rails,
each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or
sills secured to the cars, but without side pieces or guards to prevent them from
slipping off. According to the testimony of the plaintiff, the men were either in the rear
of the car or at its sides. According to that defendant, some of them were also in front,
hauling by a rope. At a certain spot at or near the water's edge the track sagged, the
tie broke, the car either canted or upset, the rails slid off and caught the plaintiff,
breaking his leg, which was afterwards amputated at about the knee.

We realize that the stringing of wires of such high voltage (3,600 volts),
uninsulated and so close to houses is a constant source of danger, even
death, especially to persons who having occasion to be near said wires, do
not adopt the necessary precautions. But may be, the City of Manila
authorities and the electric company could get together and devise means
of minimizing this danger to the public. Just as the establishment of
pedestrian lanes in city thoroughfares may greatly minimize danger to
pedestrians because drivers of motor vehicles may expect danger and slow
down or even stop and take other necessary precaution upon approaching
said lanes, so, a similar way may possibly be found. Since these high
voltage wires cannot be properly insulated and at reasonable cost, they
might perhaps be strung only up to the outskirts of the city where there
are few houses and few pedestrians and there step-down to a voltage
where the wires carrying the same to the city could be properly insulated
for the better protection of the public.

This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of
the construction and quality of the track proves that if was up to the general stranded
of tramways of that character, the foundation consisting on land of blocks or
crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface
of the ground, upon which at a right angle rested stringers of the same thickness, but
from 24 to 30 feet in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road reached the water's
edge, the blocks or crosspieces were replaced with pilling, capped by timbers
extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there

In view of all the foregoing, the appealed decision of the Court of Appeals
is hereby reversed and the complaint filed against the Company is hereby
dismissed. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

were no side pieces or guards on the car; that where no ends of the rails of the track
met each other and also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.

He who shall execute through reckless negligence an act that if done with
malice would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:

The cause of the sagging of the tracks and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by the
trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay raised
by a recent typhoon. The superintendent of the company attributed it to the giving
way of the block laid in the sand. No effort was made to repair the injury at the time of
the occurrence. According to plaintiffs witnesses, a depression of the track, varying
from one half inch to one inch and a half, was therafter apparent to the eye, and a
fellow workman of the plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply straightening out the
crosspiece, resetting the block under the stringer and renewing the tie, but otherwise
leaving the very same timbers as before. It has not proven that the company
inspected the track after the typhoon or had any proper system of inspection.

4. Those who by simple imprudence or negligence, without committing any

infraction of regulations, shall cause an injury which, had malice intervened,
would have constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of
their servants and representatives is declared to be civil and subsidiary in its
character.
It is contented by the defendant, as its first defense to the action, that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence
lies only in a criminal action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him. According to this theory
the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the tract, and on his prosecution a suitable fine should
have been imposed, payable primarily by him and secondarily by his employer.

In order to charge the defendant with negligence, it was necessary to show a breach
of duty on its part in failing either to properly secure the load on iron to vehicles
transporting it, or to skillfully build the tramway or to maintain it in proper condition, or
to vigilantly inspect and repair the roadway as soon as the depression in it became
visible. It is upon the failure of the defendant to repair the weakened track, after notice
of its condition, that the judge below based his judgment.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article
1093 of the Civil Code makes obligations arising from faults or negligence
not punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section
1902 of that chapter reads:

This case presents many important matters for our decision, and first among them is
the standard of duty which we shall establish in our jurisprudence on the part of
employees toward employees.

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.
SEC. 1903. The obligation imposed by the 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 lack or the harshness of legal rules on this subject has led many countries to
enact designed to put these relations on a fair basis in the form of compensation or
liability laws or the institution of insurance. In the absence of special legislation we
find no difficulty in so applying the general principles of our law as to work out a just
result.

The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them.

Article 1092 of the Civil Code provides:

xxx

Civil obligations, arising from crimes or misdemeanors, shall be governed by

the provisions of the Penal Code.

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for

the damages caused by their employees in the service of the branches in
which the latter may be employed or in the performance of their duties.

And article 568 of the latter code provides:

xxx

xxx

xxx

not affect this action. This construction renders it unnecessary to finally determine
here whether this subsidiary civil liability in penal actions survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure now
in force in the Philippines.

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 damages.

The difficulty in construing the articles of the code above cited in this case appears
from the briefs before us to have arisen from the interpretation of the words of article
1093, "fault or negligence not punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the Penal Code. It has been shown
that the liability of an employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence punished by the law, within
the meaning of articles 1092 and 1093. More than this, however, it can not be said to
fall within the class of acts unpunished by the law, the consequences of which are
regulated by articles 1902 and 1903 of the Civil Code. The acts to which these
articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches of those
duties are subject to articles 1101, 1103, and 1104, of the same code. A typical
application of the distinction may be found in the consequences of a railway accident
due to defective machinery supplied by the employer. His liability to his employee
would arise out of the contract of employment, that to the passengers out of the
contract for passage. while that to that injured bystander would originate in the
negligent act itself. This distinction is thus clearly set forth by Manresa in his
commentary on article 1093.

As an answer to the argument urged in this particular action it may be sufficient to

point out that nowhere in our general statutes is the employer penalized for failure to
provide or maintain safe appliances for his workmen. His obligation therefore is one
"not punished by the law " and falls under civil rather than criminal jurisprudence. But
the answer may be a broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is proposed by the
defendant, that would rob some of these articles of effect, would shut out litigants
their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if
these articles had always stood alone, such a construction would be unnecessary, but
clear light is thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in actual
force in these Islands, was formerly given a suppletory or explanatory effect. Under
article 111 of this law, both classes of action, civil and criminal, might be prosecuted
jointly or separately, but while the penal action was pending the civil was suspended.
According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced by only on private complaint,
the penal action thereunder should be extinguished. These provisions are in harmony
with those of articles 23 and 133 of our Penal Code on the same subject.

We are with reference to such obligations, that culpa, or negligence, may be

understood
in
two
difference
senses;
either
as culpa,
substantive and independent, which on account of its origin arises in an
obligation between two persons not formerly bound by any other obligation;
or as an incident in the performance of an obligation; or as already existed,
which can not be presumed to exist without the other, and which increases
the liability arising from the already exiting obligation.

An examination of this topic might be carried much further, but the citations of these
articles suffices to show that the civil liability was not intended to be merged in the
criminal nor even to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or omission, it is not required
that the inured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.

Of these two species of culpa the first one mentioned, existing by itself, may
be also considered as a real source of an independent obligation, and, as
chapter 2, title 16 of this book of the code is devoted to it, it is logical to
presume that the reference contained in article 1093 is limited thereto and
that it does not extend to those provisions relating to the other species
of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p.
29.)

Under article 20 of the Penal Code the responsibility of an employer may be regarded
as subsidiary in respect of criminal actions against his employees only while they are
process of prosecution, or in so far as they determinate the existence of the criminal
act from which liability arises, and his obligation under the civil law and its
enforcement in the civil courts is not barred thereby unless by election of the injured
person. Inasmuch as no criminal in question, the provisions of the Penal Code can

10

And in his commentary on articles 1102 and 1104 he says that these two species of
negligence may be somewhat inexactly described as contractual and extracontractual, the letter being the culpa aquiliana of the Roman law and not entailing so
strict an obligation as the former. This terminology is unreservedly accepted by
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the
principle stated is supported be decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894
(75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

might neglect his legal duty. Nor may it be excused upon the ground that the
negligence leading to the accident was that of a fellow-servant of the injured man. It is
not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the
fellow-servant, rule," we are not disposed to introduce into our jurisprudence. Adopted
in England by Lord Abinger in the case of Prescottvs. Fowler (3 Meeson & Welsby, 1)
in 1837, it has since been effectually abrogated by "the Employers' Liability Acts" and
the "Compensation Law." The American States which applied it appear to be
gradually getting rid of it; for instance, the New York State legislature of 1906 did
away with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol.
39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of
January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts of
France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.

The French Cour de Cassation clearly laid down the contrary principle in its judgment
of June 28, 1841, in the case of Reygasse, and has since adhered to it.

The original French theory, resting the responsibility of owners of industrial

enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding
in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the principle
that the true basis is the contractual obligation of the employer and employee. (See
18 Dalloz, 196, Title Travail, 331.)

The most controverted question in the case is that of the negligence of the plaintiff,
contributing to the accident, to what extent it existed in fact and what legal effect is to
be given it. In two particulars is he charged with carelessness:

Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of he French
Code making the possessor of any object answerable for damage done by it while in
his charge. Our law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that of "professional
risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual
obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely corresponding to English
and American Law. On these principles it was the duty of the defendant to build and
to maintain its track in reasonably sound condition, so as to protect its workingmen
from unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the
defendant is established.

First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along
the boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival
difficulty. There is nothing in the evidence to show that the plaintiff did or could see
the displaced timber underneath the sleeper. The claim that he must have done so is
a conclusion drawn from what is assumed to have been a probable condition of things
not before us, rather than a fair inference from the testimony. While the method of
construction may have been known to the men who had helped build the road, it was
otherwise with the plaintiff who had worked at this job less than two days. A man may
easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the
accident and that it was then in good condition, and one Danridge, a witness for the
defendant, working on the same job, swore that he never noticed the depression in
the track and never saw any bad place in it. The sagging of the track this plaintiff did
perceive, but that was reported in his hearing to the foreman who neither promised
nor refused to repair it. His lack of caution in continuing at his work after noticing the
slight depression of the rail was not of so gross a nature as to constitute negligence,

Another contention of the defense is that the injury resulted to the plaintiff as a risk
incident to his employment and, as such, one assumed by him. It is evident that this
can not be the case if the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have stipulated that the employer

11

barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know the
cause of the one rail being lower than then other" and "it does not appear in this case
that the plaintiff knew before the accident occurred that the stringers and rails joined
in the same place."

reducing the award to a plaintiff in proportion to his responsibility for the accident, yet
the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")

Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of evidence,"
as those words of section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De la Rama case (201
U. S., 303).

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme
Court of the United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of
the injury complained of, yet an action for such injury can not be maintained
if the proximate and immediate cause of the injury can be traced to the want
of ordinary care and caution in the person injured; subject to this
qualification, which has grown up in recent years (having been first
enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the injured party's negligence.

In respect of the second charge of negligence against the plaintiff, the judgment
below is not so specific. While the judge remarks that the evidence does not justify
the finding that the car was pulled by means of a rope attached to the front end or to
the rails upon it, and further that the circumstances in evidence make it clear that the
persons necessary to operate the car could not walk upon the plank between the rails
and that, therefore, it was necessary for the employees moving it to get hold upon it
as best they could, there is no specific finding upon the instruction given by the
defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car.
Therefore the findings of the judge below leave the conduct of the plaintiff in walking
along the side of the loaded car, upon the open ties, over the depressed track, free to
our inquiry.

There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the
point that he was not negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to casus fortuitus. Of
the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No.
70), in which a railway employee, standing on a car, was thrown therefrom and killed
by the shock following the backing up of the engine. It was held that the management
of the train and engine being in conformity with proper rules of the company, showed
no fault on its part.

While the plaintiff and his witnesses swear that not only were they not forbidden to
proceed in this way, but were expressly directed by the foreman to do so, both the
officers of the company and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by the side of the
car, and the foreman swears that he repeated the prohibition before the starting of
this particular load. On this contradiction of proof we think that the preponderance is
in favor of the defendant's contention to the extent of the general order being made
known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its
primary cause. This conclusion presents sharply the question, What effect is to be
given such an act of contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of damages?

Of the second class are the decision of the 15th of January, the 19th of February, and
the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the third class
the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1), in which the
breaking down of plaintiff's dam by the logs of the defendant impelled against it by the
Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two
bases, one, that the defendant was not negligent, because expressly relieved by royal
order from the common obligation imposed by the police law of maintaining a guard at
the road crossing; the other, because the act of the deceased in driving over level
ground with unobstructed view in front of a train running at speed, with the engine
whistle blowing was the determining cause of the accident. It is plain that the train

While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act
contributed to his injury, provided his negligence was slight as compared with that of
the defendant, and some others have accepted the theory of proportional damages,

12

was doing nothing but what it had a right to do and that the only fault lay with the
injured man. His negligence was not contributory, it was sole, and was of such an
efficient nature that without it no catastrophe could have happened.

reduced in the first case, and in the second case it shall be appropriated in
proportion to such fault or negligence as provided in paragraphs 1 and 2 of
section 2372.

On the other hand, there are many cases reported in which it seems plain that the
plaintiff sustaining damages was not free from contributory negligence; for instance,
the decision of the 14th of December, 1894 (76Jurisprudencia Civil, No. 134), in
which the owner of a building was held liable for not furnishing protection to workmen
engaged in hanging out flags, when the latter must have perceived beforehand the
danger attending the work.

And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of proportional damages
appears to be also adopted in article 51 of the Swiss Code. Even in the United States
in admirality jurisdictions, whose principles are derived from the civil law, common
fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that
of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

None of those cases define the effect to be given the negligence of a plaintiff which
contributed to his injury as one of its causes, though not the principal one, and we are
left to seek the theory of the civil law in the practice of other countries.

The damage of both being added together and the sum equally divided, a decree is
entered in favor of the vessel sustaining the greater loss against the other for the
excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U.
S., 97)

In France in the case of Marquant, August 20, 1879, the cour de cassation held that
the carelessness of the victim did not civilly relieve the person without whose fault the
accident could not have happened, but that the contributory negligence of the injured
man had the effect only of reducing the damages. The same principle was applied in
the case of Recullet, November 10, 1888. and that of Laugier of the 11th of
November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor
are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).

Exceptional practice appears to prevail in maritime law in other jurisdictions. The

Spanish Code of Commerce, article 827, makes each vessel for its own damage
when both are the fault; this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of contributory negligence as
understood in American Law, with which, indeed, it has little in common. This is a
plain from other articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: "In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as
the criminal liability which may appear."

In the Canadian Province of Quebee, which has retained for the most part the French
Civil Law, now embodied in a code following the Code Napoleon, a practice in accord
with that of France is laid down in many cases collected in the annotations to article
1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier,
reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of
Kings bench, otherwise known as the court of appeals, the highest authority in the
Dominion of Canada on points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate cause of the accident,
but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn
from other provinces, who have preferred to impose uniformally throughout the
Dominion the English theory of contributory negligence. Such decisions throw no light
upon the doctrines of the civil law. Elsewhere we find this practice embodied in
legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as
follows:

The rule of the common law, a hard and fast one, not adjustable with respects of the
faults of the parties, appears to have grown out the original method of trial by jury,
which rendered difficult a nice balancing of responsibilities and which demanded an
inflexible standard as a safeguard against too ready symphaty for the injured. It was
assumed that an exact measure of several concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not the wrong of the one is set off
against the wrong of the other; it that the law can not measure how much of
the damage suffered is attributable to the plaintiff's own fault. If he were
allowed to recover, it might be that he would obtain from the other party
compensation for hiss own misconduct. (Heil vs.Glanding, 42 Penn. St.
Rep., 493, 499.)

If in the case of damage there was fault or negligence on the part of the
person injured or in the part of some one else, the indemnification shall be

13

The parties being mutually in fault, there can be no appointment of

damages. The law has no scales to determine in such cases whose
wrongdoing weighed most in the compound that occasioned the mischief.
(Railroad vs. Norton, 24 Penn. St. 565, 469.)

Arellano, C.J. Torres and Mapa, JJ., concur

Experience with jury trials in negligence cases has brought American courts to review
to relax the vigor of the rule by freely exercising the power of setting aside verdicts
deemed excessive, through the device of granting new trials, unless reduced
damages are stipulated for, amounting to a partial revision of damages by the courts.
It appears to us that the control by the court of the subject matter may be secured on
a moral logical basis and its judgment adjusted with greater nicety to the merits of the
litigants through the practice of offsetting their respective responsibilities. In the civil
law system the desirable end is not deemed beyond the capacity of its tribunals.

Ma-Ao Sugar vs CA, G.R. No. 83491, August 27, 1990

Republic
of
the
SUPREME
Manila

Whatever may prove to be the doctrine finally adopted in Spain or in other countries
under the stress and counter stress of novel schemers of legislation, we find the
theory of damages laid down in the judgment the most consistent with the history and
the principals of our law in these Islands and with its logical development.

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,

vs.
HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.

Philippines
COURT

FIRST DIVISION
G.R. No. 83491 August 27, 1990

Jalandoni, Herrera, Del Castillo & Associates for petitioners.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be
between the accident and the injury, between the event itself, without which there
could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for
damages that is, the shinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece
been out of place wholly or partly thorough his act of omission of duty, the last would
have been one of the determining causes of the event or accident, for which he would
have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.

Napoleon Corral for private respondent.

CRUZ, J.:
To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao
Sugar Central to recompense the private respondent for the death of Julio Famoso,
their main source of support, who was killed in line of duty while in its employ. It is not
only a matter of law but also of compassion on which we are called upon to rule
today. We shall state at the outset that on both counts the petition must fail.
On March 22, 1980, Famoso was riding with a co-employee in the caboose or
"carbonera" of Plymouth No. 12, a cargo train of the petitioner, when the locomotive
was suddenly derailed. He and his companion jumped off to escape injury, but the
train fell on its side, caught his legs by its wheels and pinned him down. He was
declared dead on the spot. 1

Accepting, though with some hesitation, the judgment of the trial court, fixing the
damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars,
United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable
to his negligence, and direct judgment to be entered in favor of the plaintiff for the
resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let
the case be remanded to the court below for proper action. So ordered.

The claims for death and other benefits having been denied by the petitioner, the
herein private respondent filed suit in the Regional Trial Court of Bago City. Judge
Marietta Hobilla-Alinio ruled in her favor but deducted from the total damages

14

awarded 25% thereof for the decedent's contributory negligence and the total pension
of P41,367.60 private respondent and her children would be receiving from the SSS
for the next five years. The dispositive portion of the decision read:

SO ORDERED.
The widow appealed, claiming that the deductions were illegal. So did the petitioner,
but on the ground that it was not negligent and therefore not liable at all.

WHEREFORE, in view of the foregoing facts and circumstances

present in this case, the Court order, as it does hereby order the
defendant Ma-ao Sugar Central thru its Manager Mr. Guillermo Y.
Araneta to pay plaintiff the following amount:

In its own decision, the Court of Appeals 2 sustained the rulings of the trial court
except as to the contributory negligence of the deceased and disallowed the
deductions protested by the private respondent. Thus, the respondent court declared:

P30,000.00 for the death of plaintiff's husband, the late

Julio Famoso

WHEREFORE, the decision appealed from is MODIFIED by

ordering the defendant-appellant to pay the plaintiff-appellee the
following amounts:

P30,000.00 for actual, exemplary and moral damages

P30,000.00, for the death of Julio Famoso
P10,000.00 loss of earnings for twenty (20) years
P30,000.00, for actual, exemplary and moral damages
P3,000.00 funeral expenses
P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses

P73,000.00 Total Damages
P3,000.00, for attorney's fees
Less: P18,250.00 25% for the deceased's contributory
negligence

Less: P41,367.60 pension plaintiff and her minor children would

P76,000.00 Total Amount

be receiving for five (5) years from the SSS

========
In this petition, the respondent court is faulted for finding the petitioner guilty of
negligence notwithstanding its defense of due diligence under Article 2176 of the Civil
Code and for disallowing the deductions made by the trial court.

Pl3,382.40
Plus: P3,000.00 Attorney's fees and cost of this suit

Investigation of the accident revealed that the derailment of the locomotive was
caused by protruding rails which had come loose because they were not connected
and fixed in place by fish plates. Fish plates are described as strips of iron 8" to 12"
long and 3 1/2" thick which are attached to the rails by 4 bolts, two on each side, to
keep the rails aligned. Although they could be removed only with special equipment,
the fish plates that should have kept the rails aligned could not be found at the scene
of the accident.

Pl6,382.40 Total amount payable to the plaintiff.

15

There is no question that the maintenance of the rails, for the purpose inter alia of
preventing derailments, was the responsibility of the petitioner, and that this
responsibility was not discharged. According to Jose Treyes, its own witness, who
was in charge of the control and supervision of its train operations, cases of
derailment in the milling district were frequent and there were even times when such
derailments were reported every hour. 3 The petitioner should therefore have taken
more prudent steps to prevent such accidents instead of waiting until a life was finally
lost because of its negligence.

employees. The Court cannot agree. The record shows it was in fact lax in requiring
them to exercise the necessary vigilance in maintaining the rails in good condition to
prevent the derailments that sometimes happened "every hour." Obviously, merely
ordering the brakemen and conductors to fill out prescribed forms reporting
derailments-which reports have not been acted upon as shown by the hourly
derailments is-not the kind of supervision envisioned by the Civil Code.
We also do not see how the decedent can be held guilty of contributory negligence
from the mere fact that he was not at his assigned station when the train was
derailed. That might have been a violation of company rules but could not have
directly contributed to his injury, as the petitioner suggests. It is pure speculation to
suppose that he would not have been injured if he had stayed in the front car rather
than at the back and that he had been killed because he chose to ride in the caboose.

The argument that no one had been hurt before because of such derailments is of
course not acceptable. And neither are we impressed by the claim that the brakemen
and the conductors were required to report any defect in the condition of the railways
and to fill out prescribed forms for the purpose. For what is important is that the
petitioner should act on these reports and not merely receive and file them. The fact
that it is not easy to detect if the fish plates are missing is no excuse either. Indeed, it
should stress all the more the need for the responsible employees of the petitioner to
make periodic checks and actually go down to the railroad tracks and see if the fish
plates were in place.

Contributory negligence has been defined as "the act or omission amounting to want
of ordinary care on the part of the person injured which, concurring with the
defendant's
negligence,
is
the
proximate
cause
of
the
injury." 5 It has been held that "to hold a person as having contributed to his injuries, it
must be shown that he performed an act that brought about his injuries in disregard of
warnings or signs of an impending danger to health and body." 6 There is no showing
that the caboose where Famoso was riding was a dangerous place and that he
recklessly dared to stay there despite warnings or signs of impending danger.

It is argued that the locomotive that was derailed was on its way back and that it had
passed the same rails earlier without accident. The suggestion is that the rails were
properly aligned then, but that does not necessarily mean they were still aligned
afterwards. It is possible that the fish plates were loosened and detached during its
first trip and the rails were as a result already mis-aligned during the return trip. But
the Court feels that even this was unlikely, for, as earlier noted, the fish plates were
supposed to have been bolted to the rails and could be removed only with special
tools. The fact that the fish plates were not found later at the scene of the mishap may
show they were never there at all to begin with or had been removed long before.

The last point raised by the petitioner is easily resolved. Citing the case of Floresca v.
Philex Mining Corporation, 7it argues that the respondent court erred in disauthorizing
the deduction from the total damages awarded the private respondent of the amount
of P41,367.60, representing the pension to be received by the private respondent
from the Social Security System for a period of five years. The argument is that such
deduction was quite proper because of Art. 173 of the Labor Code, as amended. This
article provides that any amount received by the heirs of a deceased employee from
the Employees Compensation Commission, whose funds are administered by the
SSS, shall be exclusive of all other amounts that may otherwise be claimed under the
Civil Code and other pertinent laws.

At any rate, the absence of the fish plates whatever the cause or reason is by
itself alone proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine
was described recently in Layugan v. Intermediate Appellate Court, 4 thus:
Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident
arose from want of care.

The amount to be paid by the SSS represents the usual pension received by the heirs
of a deceased employee who was a member of the SSS at the time of his death and
had regularly contributed his premiums as required by the System. The pension is the
benefit derivable from such contributions. It does not represent the death benefits
payable under the Workmen's Compensation Act to an employee who dies as a result
of a work-connected injury. Indeed, the certification from the SSS 8 submitted by the
petitioner is simply to the effect that:

The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code,
contending it has exercised due diligence in the selection and supervision of its

16

TO WHOM IT MAY CONCERN:

Administrative Code, Republic Act Numbered Eleven hundred

sixty-one, as amended, Commonwealth Act Numbered One
hundred eighty-six, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight
hundred sixty-four, as amended and other laws whose benefits are
administered by the System or by other agencies of the
government. (Emphasis supplied).

This is to certify that Mrs. Herminia Vda. de Famoso is a recipient

of a monthly pension from the Social Security System arising from
the death of her late husband, Julio Famoso, an SSS member with
SSS No. 07-018173-1.
This certification is issued to Ma-ao Sugar Central for whatever
legal purpose it may serve best.

Rep. Act No. 1161, as amended, is the Social Security Law.

Issued this 8th day of April 1983 in Bacolod City, Philippines.

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht

Club, 9 which is still controlling:
GODOFRED
O S. SISON
Regional
Manager
By:
(SGD.)
COSME
Q.
BERMEO,
JR.
Chief,
Benefits
Branch

It does not indicate that the pension is to be taken from the funds of the ECC. The
certification would have said so if the pension represented the death benefits accruing
to the heirs under the Workmen's Compensation Act.

. . . By their nature and purpose, the sickness or disability benefits

to which a member of the System may be entitled under the Social
Security law (Rep. Act No. 1161, as amended by Rep. Acts Nos.
1792 and 2658) are not the same as the compensation that may be
claimed against the employer under the Workmen's Compensation
Act or the Civil Code, so that payment to the member employee of
social security benefits would not wipe out or extinguish the
employer's liability for the injury or illness contracted by his
employee in the course of or during the employment. It must be
realized that, under the Workmen's Compensation Act (or the Civil
Code, in a proper case), the employer is required to compensate
the employee for the sickness or injury arising in the course of the
employment because the industry is supposed to be responsible
therefore; whereas, under the Social Security Act, payment is being
made because the hazard specifically covered by the membership,
and for which the employee had put up his own money, had taken
place. As this Court had said:
. . . To deny payment of social security benefits
because the death or injury or confinement is
compensable
under
the
Workmen's
Compensation Act would be to deprive the
employees members of the System of the
statutory benefits bought and paid for by them,
since they contributed their money to the general
common fund out of which benefits are paid. In
other words, the benefits provided for in the
Workmen's Compensation Act accrues to the
employees concerned due to the hazards

This conclusion is supported by the express provision of Art. 173 as amended, which
categorically states that:
Art. 173. Exclusiveness of liability. Unless otherwise provided,
the liability of the State Insurance Fund under this Title shall be
exclusive and in place of all other liabilities of the employer to the
employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery
of benefits as provided for in Section 699 of the Revised

17

involved in their employment and is made a

burden on the employment itself However, social
security benefits are paid to the System's
members, by reason of their membership therein
for which they contribute their money to a general
common fund . . . .

Famoso's widow and nine minor children have since his death sought to recover the
just recompense they need for their support. Instead of lending a sympathetic hand,
the petitioner has sought to frustrate their efforts and has even come to this Court to
seek our assistance in defeating their claim. That relief-and we are happy to say this
must be withheld.
WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED,
with costs against the petitioner.

It may be added that whereas social security

benefits are intended to provide insurance or
protection against the hazards or risks for which
they are established, e.g., disability, sickness, old
age or death, irrespective of whether they arose
from or in the course of the employment or not,
the compensation receivable under the
Workmen's Compensation law is in the nature of
indemnity for the injury or damage suffered by
the employee or his dependents on account of
the employment. (Rural Transit Employees Asso.
vs. Bachrach Trans. Co., 21 SCRA 1263 [19671])

SO ORDERED.

Aonuevo vs CA, G.R. No. 130003, 20 October 2004

SECOND DIVISION
[G.R. No. 130003. October 20, 2004]

And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social

Security System:" 10

JONAS AONUEVO, petitioner vs. HON. COURT OF APPEALS and JEROME

VILLAGRACIA, respondent

The philosophy underlying the Workmen's Compensation Act is to

make the payment of the benefits provided for therein as a
responsibility of the industry, on the ground that it is industry which
should bear the resulting death or injury to employees engaged in
the said industry. On the other hand, social security sickness
benefits are not paid as a burden on the industry, but are paid to
the members of the System as a matter of right, whenever the
hazards provided for in the law occurs. To deny payment of social
security benefits because the death or injury or confinement is
compensable under the Workmen's Compensation Act would be to
deprive the employees-members of the System of the statutory
benefits bought and paid for by them, since they contribute their
money to the general common fund out of which benefits are paid.
In other words, the benefits provided for in the Workmen's
Compensation Act accrues to the employees concerned, due to the
hazards involved in their employment and is made a burden on the
employment itself However, social security benefits are paid to the
System's members, by reason of their membership therein for
which they contributed their money to a general common fund.

DECISION
TINGA, J.:
The bicycle provides considerable speed and freedom of movement to the rider.
It derives a certain charm from being unencumbered by any enclosure, affording the
cyclist the perception of relative liberty. It also carries some obvious risks on the part
of the user and has become the subject of regulation, if not by the government, then
by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages from
the driver of the car which had struck him. The argument is hinged on the cyclists
failure to install safety devices on his bicycle. However, the lower courts agreed that
the motorist himself caused the collision with his own negligence. The facts are
deceptively simple, but the resolution entails thorough consideration of fundamental
precepts on negligence.

18

causing a comminuted fracture;[11] that as testified by eyewitness Alfredo Sorsano,

witness for Villagracia, Aonuevo was umaarangkada, or speeding as he made the left
turn into Libertad;[12] that considering Aonuevos claim that a passenger jeepney was
obstructing his path as he made the turn. Aonuevo had enough warning to control his
speed;[13] and that Aonuevo failed to exercise the ordinary precaution, care and
diligence required of him in order that the accident could have been avoided.
[14]
Notably, Aonuevo, in his current petition, does not dispute the findings of tortious
conduct on his part made by the lower courts, hinging his appeal instead on the
alleged negligence of Villagracia. Aonuevo proffers no exculpatory version of facts on
his part, nor does he dispute the conclusions made by the RTC and the Court of
Appeals. Accordingly, the Court, which is not a trier of facts, [15] is not compelled to
review the factual findings of the lower courts, which following jurisprudence have to
be received with respect and are in fact generally binding.[16]

The present petition raises little issue with the factual findings of the Regional
Trial Court (RTC), Branch 160, of Pasig City, as affirmed by the Court of Appeals.
Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ), liable for the damages
for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia). Instead, the
petition hinges on a sole legal question, characterized as novel by the petitioner:
whether Article 2185 of the New Civil Code, which presumes the driver of a motor
vehicle negligent if he was violating a traffic regulation at the time of the mishap,
should apply by analogy to non-motorized vehicles.[1]
As found by the RTC, and affirmed by the Court of Appeals, the accident in
question occurred on 8 February 1989, at around nine in the evening, at the
intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a city).
Villagracia was traveling along Boni Avenue on his bicycle, while Aonuevo, traversing
the opposite lane was driving his Lancer car with plate number PJJ 359. The car was
owned by Procter and Gamble Inc., the employer of Aonuevos brother, Jonathan.
Aonuevo was in the course of making a left turn towards Libertad Street when the
collision occurred. Villagracia sustained serious injuries as a result, which
necessitated his hospitalization several times in 1989, and forced him to undergo four
(4) operations.

Notwithstanding, the present petition presents interesting questions for

resolution. Aonuevos arguments are especially fixated on a particular question of law:
whether Article 2185 of the New Civil Code should apply by analogy to non-motorized
vehicles.[17] In the same vein, Aonuevo insists that Villagracias own fault and
negligence serves to absolve the former of any liability for damages.

On 26 October 1989, Villagracia instituted an action for damages against

Procter and Gamble Phils., Inc. and Aonuevo before the RTC.[2] He had also filed a
criminal complaint against Aonuevo before the Metropolitan Trial Court of
Mandaluyong, but the latter was subsequently acquitted of the criminal charge. [3] Trial
on the civil action ensued, and in a Decision dated 9 March 1990, the RTC rendered
judgment against Procter and Gamble and Aonuevo, ordering them to pay Villagracia
the amounts of One Hundred Fifty Thousand Pesos (P150, 000.00). for actual
damages, Ten Thousand Pesos (P10,000.00) for moral damages, and Twenty
Thousand Pesos (P20,000.00) for attorneys fees, as well as legal costs.[4] Both
defendants appealed to the Court of Appeals.

Its is easy to discern why Aonuevo chooses to employ this line of argument.
Aonuevo points out that Villagracias bicycle had no safety gadgets such as a horn or
bell, or headlights, as invoked by a 1948 municipal ordinance. [18] Nor was it duly
registered with the Office of the Municipal Treasurer, as required by the same
ordinance. Finally, as admitted by Villagracia, his bicycle did not have foot brakes.
[19]
Before this Court, Villagracia does not dispute these allegations, which he admitted
during the trial, but directs our attention instead to the findings of Aonuevos own
negligence.[20] Villagracia also contends that, assuming there was contributory
negligence on his part, such would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged the lack of safety gadgets on
Villagracias bicycle, but characterized the contention as off-tangent and insufficient to
obviate the fact that it was Aonuevos own negligence that caused the accident.[21]

In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division affirmed
the RTC Decision in toto[6]. After the Court of Appeals denied the Motion for
Reconsideration in aResolution[7] dated 22 July 1997, Procter and Gamble and
Aonuevo filed their respective petitions for review with this Court. Procter and
Gambles petition was denied by this Court in aResolution dated 24 November 1997.
Aonuevos petition,[8] on the other hand, was given due course,[9] and is the subject of
this Decision.

Aonuevo claims that Villagracia violated traffic regulations when he failed to

register his bicycle or install safety gadgets thereon. He posits that Article 2185 of the
New Civil Code applies by analogy. The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap he was violating any traffic regulation.

In arriving at the assailed Decision, the Court of Appeals affirmed the factual
findings of the RTC. Among them: that it was Aonuevos vehicle which had struck
Villagracia;[10] that Aonuevos vehicle had actually hit Villagracias left mid-thigh, thus

The provision was introduced for the first time in this jurisdiction with the
adoption in 1950 of the New Civil Code.[22] Its applicability is expressly qualified to

19

motor vehicles only, and there is no ground to presume that the law intended a
broader coverage.

injury or damage in the event of an accident or collision. This is due to a combination

of factors peculiar to the motor vehicle, such as the greater speed, its relative greater
bulk of mass, and greater combustability due to the fuels that they use.

Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all
types of vehicles[23]. He points out that modern-day travel is more complex now than
when the Code was enacted, the number and types of vehicles now in use far more
numerous than as of then. He even suggests that at the time of the enactment of the
Code, the legislators must have seen that only motor vehicles were of such public
concern that they had to be specifically mentioned, yet today, the interaction of
vehicles of all types and nature has inescapably become matter of public concern so
as to expand the application of the law to be more responsive to the times.[24]

There long has been judicial recognition of the peculiar dangers posed by the
motor vehicle. As far back as 1912, in the U.S. v. Juanillo[25], the Court has recognized
that an automobile is capable of great speed, greater than that of ordinary vehicles
hauled by animals, and beyond doubt it is highly dangerous when used on country
roads, putting to great hazard the safety and lives of the mass of the people who
travel on such roads.[26] In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is required to use a greater degree of
care than drivers of animals, for the reason that the machine is capable of greater destruction,
and furthermore, it is absolutely under the power and control of the driver; whereas, a horse or
other animal can and does to some extent aid in averting an accident. It is not pleasant to be
obliged to slow down automobiles to accommodate persons riding, driving, or walking. It is
probably more agreeable to send the machine along and let the horse or person get out of the
way in the best manner possible; but it is well to understand, if this course is adopted and an
accident occurs, that the automobile driver will be called upon to account for his acts. An
automobile driver must at all times use all the care and caution which a careful and prudent
driver would have exercised under the circumstances. [27]

What Aonuevo seeks is for the Court to amend the explicit command of the
legislature, as embodied in Article 2185, a task beyond the pale of judicial power. The
Court interprets, and not creates, the law. However, since the Court is being asked to
consider the matter, it might as well examine whether Article 2185 could be
interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of nonmotorized vehicles ranging from human-powered contraptions on wheels such as
bicycles, scooters, and animal-drawn carts such as calesas and carromata. These
modes of transport were even more prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New Civil Code chose then to exclude
these alternative modes from the scope of Article 2185 with the use of the term
motorized vehicles. If Aonuevo seriously contends that the application of Article 2185
be expanded due to the greater interaction today of all types of vehicles, such
argument contradicts historical experience. The ratio of motorized vehicles as to nonmotorized vehicles, as it stood in 1950, was significantly lower than as it stands today.
This will be certainly affirmed by statistical data, assuming such has been compiled,
much less confirmed by persons over sixty. Aonuevos characterization of a vibrant
intra-road dynamic between motorized and non-motorized vehicles is more apropos
to the past than to the present.

American jurisprudence has had occasion to explicitly rule on the relationship

between the motorist and the cyclist. Motorists are required to exercise ordinary or
reasonable care to avoid collision with bicyclists.[28] While the duty of using ordinary
care falls alike on the motorist and the rider or driver of a bicycle, it is obvious, for
reasons growing out of the inherent differences in the two vehicles, that more is
required from the former to fully discharge the duty than from the latter.[29]
The Code Commission was cognizant of the difference in the natures and
attached responsibilities of motorized and non-motorized vehicles. Art. 2185 was not
formulated to compel or ensure obeisance by all to traffic rules and regulations. If
such were indeed the evil sought to be remedied or guarded against, then the framers
of the Code would have expanded the provision to include non-motorized vehicles or
for that matter, pedestrians. Yet, that was not the case; thus the need arises to
ascertain the peculiarities attaching to a motorized vehicle within the dynamics of
road travel. The fact that there has long existed a higher degree of diligence and care
imposed on motorized vehicles, arising from the special nature of motor vehicle, leads
to the inescapable conclusion that the qualification under Article 2185 exists precisely
to recognize such higher standard. Simply put, the standards applicable to motor
vehicle are not on equal footing with other types of vehicles.

There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable

today. He premises that the need for the distinction between motorized and nonmotorized vehicles arises from the relative mass of number of these vehicles. The
more pertinent basis for the segregate classification is the difference in type of these
vehicles. A motorized vehicle operates by reason of a motor engine unlike a nonmotorized vehicle, which runs as a result of a direct exertion by man or beast of
burden of direct physical force. A motorized vehicle, unimpeded by the limitations in
physical exertion. is capable of greater speeds and acceleration than non-motorized
vehicles. At the same time, motorized vehicles are more capable in inflicting greater

20

Thus, we cannot sustain the contention that Art. 2185 should apply to nonmotorized vehicles, even if by analogy. There is factual and legal basis that
necessitates the distinction under Art. 2185, and to adopt Aonuevos thesis would
unwisely obviate this distinction.

of itself, in the absence of a legal excuse. According to this view it is immaterial, where a
statute has been violated, whether the act or omission constituting such violation would have
been regarded as negligence in the absence of any statute on the subject or whether there was,
as a matter of fact, any reason to anticipate that injury would result from such violation. x x x.
(65 C.J.S. pp.623-628)

Even if the legal presumption under Article 2185 should not apply to Villagracia,
this should not preclude any possible finding of negligence on his part. While the legal
argument as formulated by Aonuevo is erroneous, his core contention that Villagracia
was negligent for failure to comply with traffic regulations warrants serious
consideration, especially since the imputed negligent acts were admitted by
Villagracia himself.

But the existence of an ordinance changes the situation. If a driver causes an accident by
exceeding the speed limit, for example, we do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited. Violation of an ordinance intended
to promote safety is negligence. If by creating the hazard which the ordinance was intended to
avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause
of the harm. This comes only to saying that in such circumstances the law has no reason to
ignore the causal relation which obviously exists in fact. The law has excellent reason to
recognize it, since it is the very relation which the makers of the ordinance anticipated. This
court has applied these principles to speed limits and other regulations of the manner of
driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

The Civil Code characterizes negligence as the omission of that diligence which
is required by the nature of the obligation and corresponds with the circumstances of
the persons, of the time and of the place.[30] However, the existence of negligence in a
given case is not determined by the personal judgment of the actor in a given
situation, but rather, it is the law which determines what would be reckless or
negligent.[31]

x x x However, the fact that other happenings causing or contributing toward an injury
intervened between the violation of a statute or ordinance and the injury does not necessarily
make the result so remote that no action can be maintained. The test is to be found not in the
number of intervening events or agents, but in their character and in the natural and probable
connection between the wrong done and the injurious consequence. The general principle is
that the violation of a statute or ordinance is not rendered remote as the cause of an injury by
the intervention of another agency if the occurrence of the accident, in the manner in which it
happened, was the very thing which the statute or ordinance was intended to prevent. (38 Am
Jur 841)[34]

Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a
municipal ordinance requiring the registration of bicycles and the installation of safety
devices thereon. This view finds some support if anchored on the long standing
principle of negligence per se.
The generally accepted view is that the violation of a statutory duty constitutes
negligence, negligence as a matter of law, or negligence per se.[32] In Teague vs.
Fernandez,[33] the Court cited with approval American authorities elucidating on the
rule:

In Teague, the owner of a vocational school stricken by a fire resulting in

fatalities was found negligent, base on her failure to provide adequate fire exits in
contravention of a Manila city ordinance.[35] In F.F. Cruz and Co., Inc. v. Court of
Appeals[36], the failure of the petitioner to construct a firewall in accordance with city
ordinances sufficed to support a finding of negligence.[37] InCipriano v. Court of
Appeals, [38]the Court found that the failure of the petitioner to register and insure his
auto rustproofing shop in accordance with the statute constituted negligence per se,
thus holding him liable for the damages for the destruction by fire of a customers
vehicle garaged therein.

The mere fact of violation of a statute is not sufficient basis for an inference that such violation
was the proximate cause of the injury complained. However, if the very injury has happened
which was intended to be prevented by the statute, it has been held that violation of the statute
will be deemed to be the proximate cause of the injury. (65 C.J.S. 1156)
The generally accepted view is that violation of a statutory duty constitutes negligence,
negligence as a matter of law, or, according to the decisions on the question, negligence per se,
for the reason that non-observance of what the legislature has prescribed as a suitable
precaution is failure to observe that care which an ordinarily prudent man would observe, and,
when the state regards certain acts as so liable to injure others as to justify their absolute
prohibition, doing the forbidden act is a breach of duty with respect to those who may be
injured thereby; or, as it has been otherwise expressed, when the standard of care is fixed by
law, failure to conform to such standard is negligence, negligence per se or negligence in and

Should the doctrine of negligence per se apply to Villagracia, resulting from his
violation of an ordinance? It cannot be denied that the statutory purpose for requiring
bicycles to be equipped with headlights or horns is to promote road safety and to
minimize the occurrence of road accidents involving bicycles. At face value,
Villagracias mishap was precisely the danger sought to be guarded against by the

21

Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was
violating a municipal ordinance at the time of the accident may have sufficiently
established some degree of negligence on his part, but such negligence is without
legal consequence unless it is shown that it was a contributing cause of the injury. If
anything at all, it is but indicative of Villagracias failure in fulfilling his obligation to the
municipal government, which would then be the proper party to initiate corrective
action as a result. But such failure alone is not determinative of Villagracias
negligence in relation to the accident. Negligence is relative or comparative,
dependent upon the situation of the parties and the degree of care and vigilance
which the particular circumstances reasonably require. [43] To determine if Villagracia
was negligent, it is not sufficient to rely solely on the violations of the municipal
ordinance, but imperative to examine Villagracias behavior in relation to the
contemporaneous circumstances of the accident.

ordinance he violated. Aonuevo argues that Villagracias violation should bar the
latters recovery of damages, and a simplistic interpretation of negligence per se might
vindicate such an argument.
But this is by no means a simple case. There is the fact which we consider as
proven, that Aonuevo was speeding as he made the left turn, and such negligent act
was the proximate cause of the accident. This reckless behavior would have
imperiled anyone unlucky enough within the path of Aonuevos car as it turned into the
intersection, whether they are fellow motorists, pedestrians, or cyclists. We are hard
put to conclude that Villagracia would have avoided injury had his bicycle been up to
par with safety regulations, especially considering that Aonuevo was already
speeding as he made the turn, or before he had seen Villagracia. Even assuming that
Aonuevo had failed to see Villagracia because the bicycle was not equipped with
headlights, such lapse on the cyclists part would not have acquitted the driver of his
duty to slow down as he proceeded to make the left turn.

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 others.[44]

This court has appreciated 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 Sanitary Steam Laundry, Inc. v. Court of Appeals,[39] a collision between
a truck and a privately-owned Cimarron van caused the death of three of the vans
passengers. The petitioner therein, the owner of the truck, argued that the driver of
the Cimarron was committing multiple violations of the Land Transportation and
Traffic Code[40] at the time of the accident. Among these violations: the Cimarron was
overloaded at the time of the accident; the front seat of the van was occupied by four
adults, including the driver; and the van had only one functioning headlight. Similar as
in this case, petitioner therein invoked Article 2185 and argued that the driver of the
Cimarron should be presumed negligent. The Court, speaking through Justice
Mendoza, dismissed these arguments:

Under American case law, the failures imputed on Villagracia are not grievous
enough so as to negate monetary relief. In the absence of statutory requirement, one
is not negligent as a matter of law for failing to equip a horn, bell, or other warning
devise onto a bicycle.[45] In most cases, the absence of proper lights on a bicycle does
not constitute negligence as a matter of law[46]but is a question for the jury whether the
absence of proper lights played a causal part in producing a collision with a motorist.
[47]
The absence of proper lights on a bicycle at night, as required by statute or
ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is
struck by a motorist as long as the absence of such lights was a proximate cause of
the collision;[48] however, the absence of such lights will not preclude or diminish
recovery if the scene of the accident was well illuminated by street lights, [49] if
substitute lights were present which clearly rendered the bicyclist visible, [50] if the
motorist saw the bicycle in spite of the absence of lights thereon,[51] or if the motorist
would have been unable to see the bicycle even if it had been equipped with lights.
[52]
A bicycle equipped with defective or ineffective brakes may support a finding of
negligence barring or diminishing recovery by an injured bicyclist where such
condition was a contributing cause of the accident.[53]

[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the
collision between the vehicles. Indeed, petitioner has the burden of showing a causal
connection between the injury received and the violation of the Land Transportation and
Traffic Code. He must show that the violation of the statute 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. Petitioner says that driving an overloaded vehicle with only
one functioning headlight during nighttime certainly increases the risk of accident, that
because the Cimarron had only one headlight, there was decreased visibility, and that the fact
that the vehicle was overloaded and its front seat overcrowded decreased its maneuverability.
However, mere allegations such as these are not sufficient to discharge its burden of proving
clearly that such alleged negligence was the contributing cause of the injury. [41]

22

of warnings or signs of an impending danger to health and body. [60] To prove

contributory negligence, it is still necessary to establish a causal link, although not
proximate, between the negligence of the party and the succeeding injury. In a legal
sense, negligence is contributory only when it contributes proximately to the injury,
and not simply a condition for its occurrence.[61]

The above doctrines reveal a common thread. The failure of the bicycle owner
to comply with accepted safety practices, whether or not imposed by ordinance or
statute, is not sufficient to negate or mitigate recovery unless a causal connection is
established between such failure and the injury sustained. The principle likewise finds
affirmation in Sanitary Steam, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it substantially
contributed thereto.[54] Aonuevo had the burden of clearly proving that the alleged
negligence of Villagracia was the proximate or contributory cause of the latters injury.

As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as

solely responsible for the accident. The petition does not demonstrate why this finding
should be reversed. It is hard to imagine that the same result would not have
occurred even if Villagracias bicycle had been equipped with safety equipment.
Aonuevo himself admitted having seen Villagracia from ten (10) meters away, thus he
could no longer claim not having been sufficiently warned either by headlights or
safety horns. The fact that Aonuevo was recklessly speeding as he made the turn
likewise leads us to believe that even if Villagracias bicycle had been equipped with
the proper brakes, the cyclist would not have had opportunity to brake in time to avoid
the speeding car. Moreover, it was incumbent on Aonuevo to have established that
Villagracias failure to have installed the proper brakes contributed to his own injury.
The fact that Aonuevo failed to adduce proof to that effect leads us to consider such
causal connection as not proven.

On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about
ten (10) meters before the accident. Corrolarily, therefore, he could have avoided the accident
had he [stopped] alongside with an earlier (sic) jeep which was already at a full stop giving
way to appellee. But according to [eyewitness] Sorsano, he saw appellant Aonuevo
umaarangkada and hit the leg of Villagracia (TSN March 14, 1990 p. 30). This earlier (sic)
jeep at a full stop gave way to Villagracia to proceed but Aonuevo at an unexpected motion
(umarangkada) came out hitting Villagracia (TSN March 9, 1990 p. 49). Appellant Aonuevo
admitted that he did not blow his horn when he crossed Boni Avenue (TSN March 21, 1990 p.
47).[55]

All told, there is no reason to disturb the assailed judgment.

By Aonuevos own admission, he had seen Villagracia at a good distance of ten
(10) meters. Had he been decelerating, as he should, as he made the turn, Aonuevo
would have had ample opportunity to avoid hitting Villagracia. Moreover, the fact that
Aonuevo had sighted Villagracia before the accident would negate any possibility that
the absence of lights on the bike contributed to the cause of the accident. [56] A
motorist has been held liable for injury to or death of a bicyclist where the motorist
turned suddenly into the bicyclist so as to cause a collision.[57]

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is

AFFIRMED. Costs against petitioner.
SO ORDERED.

Neither does Aonuevo attempt before this Court to establish a causal connection
between the safety violations imputed to Villagracia and the accident itself. Instead,
he relied on a putative presumption that these violations in themselves sufficiently
established negligence appreciable against Villagracia. 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 Villagracias own
liability.

MPC vs Heirs of Casiona, G.R. No. 165969, November 27,2008

Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
NATIONAL POWER G.R. No. 165969
CORPORATION,
Petitioner, Present:
YNARES-SANTIAGO, J.,

Neither can we can adjudge Villagracia with contributory negligence. The

leading case in contributory negligence, Rakes v. Atlantic Gulf[58] clarifies that
damages may be mitigated if the claimant in conjunction with the occurrence,
[contributes] only to his injury.[59] To hold a person as having contributed to his injuries,
it must be shown that he performed an act that brought about his injuries in disregard

Cha
irperson,

23

AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,

In a letter dated March 1, 1995, Engr. Banayot informed Itogon Mayor Cresencio
Pacalso that NPC had installed nine additional poles on their Beckel-Philex 60 KV line.They
likewise identified a possible rerouting scheme with an estimated total cost of 1.7 million
pesos to improve the distance from its deteriorating lines to the ground.

NACHURA, and
REYES, JJ.
Promulgated:
HEIRS OF NOBLE CASIONAN,
Respondents. November 27, 2008

On June 27, 1995, Noble and his co-pocket miner, Melchor Jimenez, were at
Dalicno. They cut two bamboo poles for their pocket mining. One was 18 to 19 feet long and
the other was 14 feet long. Each man carried one pole horizontally on his shoulder: Noble
carried the shorter pole while Melchor carried the longer pole. Noble walked ahead as both
passed through the trail underneath the NPC high tension transmission lines on their way to
their work place.

x--------------------------------------------------x
DECISION

As Noble was going uphill and turning left on a curve, the tip of the bamboo pole he
was carrying touched one of the dangling high tension wires. Melchor, who was walking
behind him, narrated that he heard a buzzing sound when the tip of Nobles pole touched the
wire for only about one or two seconds. Thereafter, he saw Noble fall to the ground.Melchor
rushed to Noble and shook him but the latter was already dead. Their co-workers heard
Melchors shout for help and together they brought the body of Noble to their camp.

REYES, R.T., J.:

PETITIONING power company pleads for mitigation of awarded damages on ground of
contributory negligence. But is the victim in this case partly to blame for his electrocution and
eventual demise?

A post-mortem examination by Dra. Ignacia Reyes Ciriaco, Municipal Health

Officer of Itogon, Benguet, determined the cause of death to be cardiac arrest, secondary to
ventricular fibulation, secondary to electrocution. [2] She also observed a small burned area in
the middle right finger of the victim.

This is a review on certiorari of the Decision[1] of the Court of Appeals (CA) which found the
National Power Corporation (NPC) liable for damages for the death of Noble Casionan due to
electrocution from the companys high tension transmission lines.

Police investigators who visited the site of the incident confirmed that
portions of the high tension wires above the trail hung very low, just about
eight to ten feet above theground. They noted that the residents, school children, and pocket
miners usually used the trail and had to pass directly underneath the wires. The trail was the
only viable way since the other side was a precipice. In addition, they did not see any danger
warning signs installed in the trail.

The Facts
The facts, as found by the trial court are as follows:
Respondents are the parents of Noble Casionan, 19 years old at the time of the
incident that claimed his life on June 27, 1995. He would have turned 20 years of age on
November 9 of that year. Noble was originally from Cervantes, Ilocos Sur. He worked as a
pocket miner in Dalicno, Ampucao, Itogon, Benguet.

The elders and leaders of the community, through Mayor Cresencio Pacalso,
informed the General Manager of NPC in Itogon of the incident. After learning of the
electrocution, NPC repaired the dangling and sagging transmission lines and put up warning
signs around the area.

A trail leading to Sangilo, Itogon, existed in Dalicno and this trail was regularly used
by members of the community. Sometime in the 1970s, petitioner NPC installed high-tension
electrical transmission lines of 69 kilovolts (KV) traversing the trail. Eventually, some of the
transmission lines sagged and dangled reducing their distance from the ground to only about
eight to ten feet. This posed a great threat to passersby who were exposed to the danger of
electrocution especially during the wet season.

Consequently, the heirs of the deceased Noble filed a claim for damages against the
NPC before the Regional Trial Court (RTC) in Benguet. In its answer, NPC denied being
negligent in maintaining the safety of the high tension transmission lines. It averred that there
were danger and warning signs installed but these were stolen by children.Excavations were
also made to increase the necessary clearance from the ground to about 17 to 18 feet but some
towers or poles sank due to pocket mining in the area.

As early as 1991, the leaders of Ampucao, Itogon made verbal and written requests
for NPC to institute safety measures to protect users of the trail from their high tension
wires. On June 18, 1991 and February 11, 1993, Pablo and Pedro Ngaosie, elders of the
community, wrote Engr. Paterno Banayot, Area Manager of NPC, to make immediate and
appropriate repairs of the high tension wires. They reiterated the danger it posed to small-scale
miners especially during the wet season. They related an incident where one boy was nearly
electrocuted.

At the trial, NPC witnesses testified that the cause of death could not have been
electrocution because the victim did not suffer extensive burns despite the strong 69 KV
carried by the transmission lines. NPC argued that if Noble did die by electrocution, it was due
to his own negligence. The company counter-claimed for attorneys fees and cost of litigation.

24

RTC Disposition

breathing. What better account would there be than this? Melchor

Jimenez was an eye witness as to how it all happened.[4] (Emphasis added)

On February 17, 1998, the RTC decided in favor of respondents. The fallo of its
decision reads:

The RTC ruled that the negligence of NPC in maintaining the high-tension wires
was established by preponderance of evidence. On this score, the RTC opined:

WHEREFORE, judgment is hereby rendered in favor of the

plaintiffs and against the defendant NPC as follows:
2. On the matter of whether plaintiffs have a cause of action
against defendant NPC, obviously, they would have. x x x This negligence
of the NPC was well established and cannot be denied because previous to
this incident, the attention of NPC has already been called by several
requests and demands in 1991, 1993 and 1995 by elders and leaders of
the community in the area to the fact that their transmission lines were
dangling and sagging and the clearance thereof from the line to the ground
was only 8 to 10 feet and not within the standard clearance of 18 to 20 feet
but no safety measures were taken. They did not even put danger and
warning signs so as to warn persons passing underneath. [5] (Emphasis
added)

1. Declaring defendant NPC guilty of Negligence (Quasi-Delict)

in connection with the death of Noble Casionan;
2. Ordering NPC as a consequence of its negligence, to pay the
plaintiffs Jose and Linda Casionan, as heirs of the deceased, Noble
Casionan, the following Damages:
a. P50,000.00 as indemnity for the death of their son
Noble Casionan;
b. P100,000.00 as moral damages;

Disagreeing with the ruling of the trial court, NPC elevated the case to the CA. In its appeal, it
argued that the RTC erred in ruling that NPC was liable for Nobles
death. Further,even assuming that Noble died of electrocution, the RTC erred in not finding
that he was guilty of contributory negligence and in awarding excessive damages.

c. P50,000.00 as exemplary damages;

d. P52,277.50 as actual damages incurred for the
expenses of burial and wake in connection with
the death of Noble Casionan;

CA Disposition

e. P720,000.00 as the loss of unearned income; and

On June 30, 2004, the CA promulgated its decision, disposing as follows:

f. P20,000.00 as attorneys fees and the cost of suit;

and

WHEREFORE, the appealed

with the MODIFICATION that the
REDUCED to Fifty Thousand Pesos
attorneys fees in the sum of Twenty
DELETED.[6]

3. Dismissing the counter claim of the NPC for lack of merit. [3]
The RTC gave more credence to the testimony of witnesses for respondents than
those of NPC who were not actually present at the time of the incident. The trial court
observed that witnesses for NPC were biased witnesses because they were all employed by the
company, except for the witness from the Department of Environment and Natural Resources
(DENR). The RTC found:

Decision is hereby AFFIRMED,

amount of moral damages is
(P50,000.00); and the award of
Thousand Pesos (P20,000.00) is

The CA sustained the findings of fact of the trial court but reduced the award of moral
damages from P100,000.00 to P50,000.00. The CA further disallowed the award of attorneys
fees because the reason for the award was not expressly stated in the body of the decision.
Issues

Melchor Jimenez was very vivid in his account. He declared that

he and Noble Casionan cut two bamboo poles, one 14 feet and the other
about 18 feet. The shorter bamboo pole was carried by Noble Casionan
and the longer bamboo pole was carried by him. And they walked along
the trail underneath the transmission lines. He was following Noble
Casionan. And when they were going uphill in the trail and Noble
Casionan was to turn left in a curve, the bamboo pole of Casionan swung
around and its tip at the back touched for one or two seconds or for a split
moment the transmission line that was dangling and a buzzing sound was
heard. And Casionan immediately fell dead and simply stopped

The following issues are presented for Our consideration: (i) Whether the award for damages
should be deleted in view of the contributory negligence of the victim; and (ii) Whether the
award for unearned income, exemplary, and moral damages should be deleted for lack of
factual and legal bases.[7]
Our Ruling
I

25

That the victim Noble died from being electrocuted by the high-tension transmission
wires of petitioner is not contested by petitioner. We are, however, asked to delete or mitigate
the damages awarded by the trial and appellate courts in view of what petitioner alleges to be
contributory negligence on the part of the victim.

There is no question that the maintenance of the rails, for the

purpose, inter alia, of preventing derailments, was the responsibility of the
petitioner, and that this responsibility was not discharged. According to
Jose Reyes, its own witness, who was in charge of the control and
supervision of its train operations, cases of derailment in the milling
district were frequent and there were even times when such derailments
were reported every hour. The petitioner should therefore have taken more
prudent steps to prevent such accidents instead of waiting until a life was
finally lost because of its negligence.[10]

As a rule, only questions of law may be entertained on appeal by certiorari under Rule
45. The finding of negligence on the part of petitioner by the trial court and affirmed by the
CA is a question of fact which We cannot pass upon since it would entail going into factual
matters on which the finding of negligence was based. [8] Corollary to this, the finding by both
courts of the lack of contributory negligence on the part of the victim is a factual issue which
is deemed conclusive upon this Court absent any compelling reason for Us to rule otherwise.

Moreover, We find no contributory negligence on Nobles part.

But even if We walk the extra mile, the finding of liability on the part of
petitioner must stay.

Negligence is the failure to observe, for the protection of the interest of another
person, that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. [11] On the other hand, contributory negligence is
conduct on the part of the injured party, contributing as a legal cause to the harm he has
suffered, which falls below the standard which he is required to conform for his own
protection.[12] There is contributory negligence when the partys act showed lack of ordinary
care and foresight that such act could cause him harm or put his life in danger. [13] It is an act or
omission amounting to want of ordinary care on the part of the person injured which,
concurring with the defendants negligence, is the proximate cause of the injury.[14]

Petitioner contends that the mere presence of the high tension wires above the trail
did not cause the victims death. Instead, it was Nobles negligent carrying of the bamboo pole
that caused his death. It insists that Noble was negligent when he allowed the bamboo pole he
was carrying to touch the high tension wires. This is especially true because other people
traversing the trail have not been similarly electrocuted.
Petitioners contentions are absurd.
The sagging high tension wires were an accident waiting to happen. As established
during trial, the lines were sagging around 8 to 10 feet in violation of the required distance of
18 to 20 feet. If the transmission lines were properly maintained by petitioner, the bamboo
pole carried by Noble would not have touched the wires. He would not have been
electrocuted.

The underlying precept on contributory negligence is that a plaintiff who is partly

responsible for his own injury should not be entitled to recover damages in full but must bear
the consequences of his own negligence. [15] If indeed there was contributory negligence on the
part of the victim, then it is proper to reduce the award for
damages. This is inconsonance with the Civil Code provision that liability will be mitigated in
consideration of the contributory negligence of the injured party. Article 2179 of the Civil
Code is explicit on this score:

Petitioner cannot excuse itself from its failure to properly maintain the wires by
attributing negligence to the victim. In Ma-ao Sugar Central Co., Inc. v. Court of Appeals,
[9]
this Court held that the responsibility of maintaining the rails for the purpose of preventing
derailment accidents belonged to the company. The company should not have been negligent
in ascertaining that the rails were fully connected than to wait until a life was lost due to an
accident. Said the Court:

When the plaintiffs own negligence was the immediate and

proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of
the injury being the defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.

In this petition, the respondent court is faulted for finding the

petitioner guilty of negligence notwithstanding its defense of due diligence
under Article 2176 of the Civil Code and for disallowing the deductions
made by the trial court.

In Ma-ao Sugar Central, it was held that to hold a person as having contributed to
his injuries, it must be shown that he performed an act that brought about his injuries in
disregard of warnings or signs on an impending danger to health and
body. This Court held then that the victim was not guilty of contributory negligence as there
was no showing that the caboose where he was riding was a dangerous place and that he
recklessly dared to stay there despite warnings or signs of impending danger.[16]

Investigation of the accident revealed that the derailment of the

locomotive was caused by protruding rails which had come loose because
they were not connected and fixed in place by fish plates. Fish plates are
described as strips of iron 8" to 12" long and 3 " thick which are attached
to the rails by 4 bolts, two on each side, to keep the rails aligned. Although
they could be removed only with special equipment, the fish
plates that should have kept the rails aligned could not be found at the
scene of the accident.

In this case, the trail where Noble was electrocuted was regularly used by members of the
community. There were no warning signs to inform passersby of the impending danger to their
lives should they accidentally touch the high tension wires. Also, the trail was the only viable
way from Dalicon to Itogon. Hence, Noble should not be faulted for simply doing what was
ordinary routine to other workers in the area.

26

The above doctrines reveal a common thread. The failure of the

bicycle owner to comply with accepted safety practices, whether or not
imposed by ordinance or statute, is not sufficient to negate or mitigate
recovery unless a causal connection is established between such failure
and the injury sustained. The principle likewise finds affirmation
in Sanitary Steam, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it
substantially contributed thereto. Aonuevo had the burden of clearly
proving that the alleged negligence of Villagracia was the proximate or
contributory cause of the latters injury.[18] (Emphasis added)

Petitioner further faults the victim in engaging in pocket mining, which is prohibited by the
DENR in the area.
In Aonuevo v. Court of Appeals,[17] this Court ruled that the violation of a statute is
not sufficient to hold that the violation was the proximate cause of the injury, unless the very
injury that happened was precisely what was intended to be prevented by the statute. In said
case, the allegation of contributory negligence on the part of the injured party who violated
traffic regulations when he failed to register his bicycle or install safety gadgets thereon was
struck down. We quote:
x x x The bare fact that Villagracia was violating a municipal
ordinance at the time of the accident may have sufficiently established
some degree of negligence on his part, but such negligence is without
legal consequence unless it is shown that it was a contributing cause of
the injury. If anything at all, it is but indicative of Villagracias failure in
fulfilling his obligation to the municipal government, which would then be
the proper party to initiate corrective action as a result. But such failure
alone is not determinative of Villagracias negligence in relation to the
accident. Negligence is relative or comparative, dependent upon the
situation of the parties and the degree of care and vigilance which the
particular circumstances reasonably require. To determine if Villagracia
was negligent, it is not sufficient to rely solely on the violations of the
municipal ordinance, but imperative to examine Villagracias behavior in
relation to the contemporaneous circumstances of the accident.

That the pocket miners were unlicensed was not a justification for petitioner to leave
their transmission lines dangling. We quote with approval the observation of the RTCon this
matter:
The claim of NPC that the pocket miners have no right to
operate within the area of Dalicno, Itogon, Benguet as there was no permit
issued by DENR is beside the point. The fact is that there were not only
pocket miners but also there were many residents in the area of Dalicno,
Ampucao, Itogon, Benguet using the trail. These residents were using this
trail underneath the transmission lines x x x. They were using this trail
even before the transmission lines were installed in the 1970s by
NPC. The pocket miners, although they have no permit to do pocket
mining in the area, are also human beings who have to eke out a living in
the only way they know how. The fact that they were not issued a permit by
the DENR to do pocket mining is no justification for NPC to simply leave
their transmission lines dangling or hanging 8 to 10 feet above the ground
posing danger to the life and limb of everyone in said community. x x
x[19] (Emphasis added)

xxxx
Under American case law, the failures imputed on Villagracia
are not grievous enough so as to negate monetary relief. In the absence of
statutory requirement, one is not negligent as a matter of law for failing to
equip a horn, bell, or other warning devise onto a bicycle. In most cases,
the absence of proper lights on a bicycle does not constitute negligence as
a matter of law but is a question for the jury whether the absence of proper
lights played a causal part in producing a collision with a motorist. The
absence of proper lights on a bicycle at night, as required by statute or
ordinance, may constitute negligence barring or diminishing recovery if
the bicyclist is struck by a motorist as long as the absence of such lights
was a proximate cause of the collision; however, the absence of such
lights will not preclude or diminish recovery if the scene of the accident
was well illuminated by street lights, if substitute lights were present
which clearly rendered the bicyclist visible, if the motorist saw the bicycle
in spite of the absence of lights thereon, or if the motorist would have been
unable to see the bicycle even if it had been equipped with lights. A
bicycle equipped with defective or ineffective brakes may support a
finding of negligence barring or diminishing recovery by an injured
bicyclist where such condition was a contributing cause of the accident.

In sum, the victim was not guilty of contributory negligence. Hence, petitioner is not
entitled to a mitigation of its liability.
II
We now determine the propriety of the awards for loss of unearned income,
moral, and exemplary damages.
From the testimony of the victims mother, it was duly established during trial that he
was earning P3,000.00 a month. To determine the compensable amount of lost earnings, We
consider (1) the number of years for which the victim would otherwise have lived (life
expectancy); and (2) the rate of loss sustained by the heirs of the
deceased. Lifeexpectancy is computed by applying the formula (2/3 x [80 - age at death])
adopted
in
the
American
Expectancy
Table
of
Mortality
or
the
Actuarial Combined Experience Table ofMortality. The second factor is computed by
multiplying the life expectancy by the net earnings of the deceased, i.e., the total earnings less
expenses necessary in the creation of such earnings or income and less living and other
incidental expenses. The net earning is ordinarily computed at fifty percent (50%) of the gross
earnings. Thus, the formula usedby this Court in computing loss of earning capacity is: Net

27

their decision making. [24] We find that the CA correctly reduced the award from P100,000.00
to P50,000.00.

Earning Capacity = [2/3 x (80 age at time of death) x (gross annual income reasonable and
necessary living expenses)].[20]
We sustain the trial court computation of unearned income of the victim:

As for the award for attorneys fees, well-settled is the rule that the reason for the
award must be discussed in the text of the courts decision and not only in the dispositive
portion.[25] Except for the fallo, a discussion on the reason for the award for attorneys fees was
not included by the RTC in its decision. The CA thus correctly disallowed it on appeal.

x x x the loss of his unearned income can be computed as

follows: two-thirds of 80 years, minus 20 years, times P36,000.00 per
year, equals P1,440,000.00. This is because Noble Casionan, at the time of
his death, was 20 years old and was healthy and strong. And, therefore, his
life expectancy would normally reach up to 80 years old in accordance
with the above formula illustrated in the aforesaid cases. Thus, Noble
Casionan had 60 more years life expectancy since he was 20 years old at
the time of his death on June 27, 1995. Two-thirds of 60 years
times P36,000.00 since he was earning aboutP3,000.00 a month
of P36,000.00 a year would be P1,440,000.00.

WHREFORE, the petition is DENIED and the appealed decision of the Court of
Appeals AFFIRMED.
SO ORDERED.

Lambert vs Heirs of Ray Castillon, G.R. No. 160709, February 23,

2005

However, in determining the unearned income, the basic concern is to

determine the damages sustained by the heirs or dependents of the
deceased Casionan. And here, the damages consist not of the full amount
of his earnings but the support they would have received from the
deceased had he not died as a consequence of the unlawful act of the
NPC. x x x The amount recoverable is not the loss of the entire earnings
but the loss of that portion of the earnings which the heirs would have
received as support. Hence, from the amount of P1,440,000.00, a
reasonable amount for the necessary expenses of Noble Casionan had he
lived would be deducted. Following the ruling in People v. Quilaton, 205
SCRA 279, the Court deems that 50 percent of the gross earnings of the
deceased of P1,440,000.00 should be deducted for his necessary expenses
had he lived, thus leaving the other half of about P720,000.00 as the net
earnings that would have gone for the support of his heirs. This is the
unearned income of which the heirs were deprived of. [21]

FIRST DIVISION

[G.R. No. 160709. February 23, 2005]

NELEN

LAMBERT, assisted by her husband, GLENROY ALOYSUIS

LAMBERT, petitioners, vs. HEIRS OF RAY CASTILLON, Represented by
MARILOU T. CASTILLON and SERGIO LABANG, respondents.

DECISION

In quasi delicts, exemplary damages are awarded where the offender was guilty of
gross negligence.[22] Gross negligence has been defined to be the want or absence of even
slight care or diligence as to amount to a reckless disregard of the safety of person or
property. It evinces a thoughtless disregard of consequences without exerting any effort to
avoid them.[23]

YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking the
reversal of the decision[1] of the Court of Appeals dated October 21, 2002 in CA-G.R.
CV No. 43734, which affirmed the June 29, 1993 decision of the Regional Trial Court
of Iligan City, Branch 06, in Civil Case No. 06-2086.

Petitioner demonstrated its disregard for the safety of the members of the
community of Dalicno who used the trail regularly when it failed to address the sagging high
tension wires despite numerous previous requests and warnings. It only exerted efforts to
rectify the danger it posed after a death from electrocution already occurred. Gross negligence
was thus apparent, warranting the award of exemplary damages.

In the evening of January 13, 1991, Ray Castillon visited the house of his
brother Joel Castillon at Tambo, Iligan City and borrowed his motorcycle. He then
invited his friend, Sergio Labang, to roam around Iligan City. Ray drove the
motorcycle with Sergio as the backrider.[2]

As to the award of moral damages, We sustain the CA reduction of the award. Moral
damages are designed to compensate the claimant for actual injury suffered and not to impose
a penalty on the wrongdoer. It is not meant to enrich the complainant but to enable the injured
party to obtain means to obviate the moral suffering experience. Trial courts should guard
against the award of exorbitant damages lest they be accused of prejudice or corruption in

At around past 10:00 p.m., after eating supper at Honas Restaurant and
imbibing a bottle of beer, they traversed the highway towards Tambo at a high speed.
Upon reaching Brgy. Sto. Rosario, they figured in an accident with a Tamaraw
jeepney, owned by petitioner Nelen Lambert and driven by Reynaldo Gamot, which

28

was traveling on the same direction but made a sudden left turn. The incident resulted
in the instantaneous death of Ray and injuries to Sergio.[3]

contrary to the rulings of this Honorable Court in the case of Sanitary Steam Laundry, INC. vs.
The Honorable Court of Appeals [300 SCRA 20, December 10, 1998] and the case of Edna A.
Raynera vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA 102, April 21, 1999].

Respondents, the heirs of Ray Castillon, thus filed an action for damages with
prayer for preliminary attachment against the petitioner Nelen Lambert. The complaint
was docketed as Civil Case No. 06-2086 of the RTC of Iligan City, Branch 06. [4] The
complaint was subsequently amended to include the claim by Joel Castillon for the
damages caused to the motorcycle.[5]

3. The Honorable Court of Appeals grossly erred in its conclusion that petitioners driver was
negligent, without taking into consideration the presumptions enunciated by this Honorable
Court in the case of Philippine Rabbit Bus Lines vs. The Honorable Intermediate Appellate
Court and Casiano Pascua, Et. Al., [189 SCRA 168, August 30, 1990], and the case of Edna A.
Raynera vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA 102, April 21, 1999].

On June 29, 1993, after a full-blown trial, the court a quo rendered a decision in
favor of herein private respondents but reduced petitioners liability by 20% in view of
the contributory negligence of Ray. The dispositive portion of the decision reads:

4. As an alternative relief, petitioner most respectfully assigns as error the Honorable Trial
Courts computation as to the loss of earning capacity of Ray Castillon. Such computation is
contrary to the formula enunciated by this Honorable Court in the case of Villa Rey Transit,
Inc. vs. The Honorable Court of Appeals [31 SCRA 511 (1970)].

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants, directing the latter, jointly and severally, to pay the former the following:
1. The sum of SIX HUNDRED THIRTY-THREE THOUSAND AND NINETY-ONE
(P633,091) PESOS, representing loss of support, death indemnity, funeral and related
expenses, moral damages and attorneys fees and

5. The Honorable Trial Courts award of moral damages is contrary to the pronunciation of this
Honorable Court in the case of Ace Haulers Corporation vs. The Honorable Court of Appeals
and Abiva [338 SCRA 572, August 23, 2000], wherein the award of moral damages was
disallowed absent any evidence of bad faith or ill-motive. [8]

2. Costs of the suit.

Petitioner insists that the negligence of Ray Castillon was the proximate cause
of his unfortunate death and therefore she is not liable for damages.

For lack of merit, defendants counterclaim is dismissed.

In petitions for review on certiorari under Rule 45 of the Rules of Court, only
questions of law may be put into issue. Questions of fact cannot be entertained. The
finding of negligence by the Court of Appeals is a question of fact which we cannot
pass upon as it would entail going into factual matters on which the finding of
negligence was based. As a rule, factual findings of the trial court, especially those
affirmed by the Court of Appeals, are conclusive on this Court when supported by the
evidence on record.[9]

On the claim of Joel Castillon, the evidence shows that he is not the real owner of the
motorcycle. He is not the real party in interest. Accordingly, his complaint is dismissed.
On the third-party complaint, the third-party defendant Zenith Insurance Corporation is
ordered to pay the sum of P16,500.00 directly to the plaintiffs. This sum, if paid, should be
deducted from the amount adjudged in par. 1 above.

Our examination of the records shows that both the trial court and the Court of
Appeals carefully considered the factual backdrop of the case. No cogent reason
exists for disturbing the following findings of the trial court, which the Court of Appeals
affirmed:

SO ORDERED.[6]
The Court of Appeals affirmed the decision of the trial court. [7] Hence the present
petition, based on the following arguments:

To the mind of the court, this is exactly what happened. When Reynaldo Gamot was
approaching the side road, he slightly veered to the right for his allowance. Ray Castillon, who
was following closely behind, instinctively veered to the left but it was also the moment when
Reynaldo Gamot sharply turned to the left towards the side road. At this juncture both were
moving obliquely to the left. Thus the motorcycle sliced into the side of the jeepney throwing
the driver forward so that his forehead hit the angle bar on the left front door of the jeepney
even as the motorcycle shot forward and the jeepney veered back to the right and sped away.

1. The Honorable Court of Appeals committed serious error of law and grave abuse of
discretion when it did not apply the ruling of this Honorable Court in the case of Philippine
Rabbit Bus Lines vs. The Honorable Intermediate Appellate Court and Casiano Pascua, Et.
Al., [189 SCRA 168, August 30, 1990], as reiterated recently in the case of Edna A. Raynera
vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA 102, April 21, 1999], in which this
Honorable Court enunciated that drivers of vehicles who bump the rear of another vehicle are
presumed to be the cause of the accident.

The testimonies of the witnesses Frias, Opada, Labang and Sumile show that he did not stop
even for a second, or less before making the left turn. On the contrary, he slightly veered to the
right immediately followed by the abrupt and sudden turn to the left in order to enter the side
road. It is apparent that Reynaldo Gamot did not keep a lookout for vehicles or persons

2. The erroneous conclusion of the Honorable Trial Court as affirmed by the Honorable Court
of Appeals that the act of tailgating, at high speed, constitutes contributory negligence only, is

29

has imbibed one or two bottles of beer; and (4) was not wearing a protective helmet.
[21]
These circumstances, although not constituting the proximate cause of his demise
and injury to Sergio, contributed to the same result. The contribution of these
circumstances are all considered and determined in terms of percentages of the total
cause. Hence, pursuant to Rakes v. AG & P, the heirs of Ray Castillon shall recover
damages only up to 50% of the award. In other words, 50% of the damage shall be
borne by the private respondents; the remaining 50% shall be paid by the petitioner.

following him before proceeding to turn left. He failed to take into account the possibility that
others may be following him. He did not employ the necessary precaution to see to it that the
road was clear.[10]
Clearly, the abrupt and sudden left turn by Reynaldo, without first establishing
his right of way, was the proximate cause of the mishap which claimed the life of Ray
and injured Sergio. Proximate cause is defined as that which, in the natural and
continuous sequence, unbroken by any efficient, intervening cause, produces the
injury, and without which the result would not have occurred. [11] The cause of the
collision is traceable to the negligent act of Reynaldo for, as the trial court correctly
held, without that left turn executed with no precaution, the mishap in all probability
would not have happened.[12]

Anent the award of loss of earning capacity, we agree with the petitioner that the
trial court erred in the computation of the net earnings.
In considering the earning capacity of the victim as an element of damages, the
following factors are considered in determining the compensable amount of lost
earnings: (1) the number of years for which the victim would otherwise have lived;
and (2) the rate of loss sustained by the heirs of the deceased. Jurisprudence
provides that the first factor, i.e., life expectancy, is computed by applying the formula
(2/3 x [80 - age at death]) adopted in the American Expectancy Table of Mortality or
the Actuarial Combined Experience Table of Mortality. As to the second factor, it is
computed by multiplying the life expectancy by the net earnings of the deceased, i.e.,
the total earnings less expenses necessary in the creation of such earnings or income
and less living and other incidental expenses. The net earning is ordinarily
computed at fifty percent (50%) of the gross earnings. Thus, the formula used by
this Court in computing loss of earning capacity is: Net Earning Capacity = [2/3 x
(80 age at time of death) x (gross annual income reasonable and necessary
living expenses)].[22]

Petitioner misunderstood our ruling in Raynera v. Hiceta.[13] That case also

involved a motorcycle crashing into the left rear portion of another vehicle, and we
declared therein that drivers of vehicles who bump the rear of another vehicle are
presumed to be the cause of the accident, unless contradicted by other evidence.
[14]
In Raynera, the death of the victim was solely attributable to his own negligence in
bumping the rear of the trailer truck which was traveling ahead of him at 20 to 30
kilometers per hour. Raynera, being the driver of the rear vehicle, had full control of
the situation as he was in a position to observe the vehicle in front of him. The trailer
truck therein did not make a sudden left turn as in the case at bar. Thus, the theory
that drivers of vehicles who bump the rear of another vehicle are presumed to be the
cause of the accident is, as in this case, sufficiently contradicted by evidence, which
is the sudden left turn made by Reynaldo which proximately caused the collision.

It was established that Ray was 35 at the time of his death and was earning a
gross annual income of P31,876.00 as a driver at the Mindanao State University. In
arriving at the net earnings, the trial court deducted from the gross annual income the
annual living expenses in the amount of P9,672.00, broken down as follows: P20.00 a
day for travel or P520.00 per month; P60.00 a month for cigarettes; P26.00 for drinks;
and other personal expenses like clothing, toiletries, etc. estimated at P200.00 per
month.[23] The amount of P9,672.00, however, appears unrealistic, and constitutes
only 30.34% of the gross earnings. It even includes expenses for cigarettes which by
no means can be classified as a necessary expense. Using the cited formula with the
net earnings computed at 50% of the gross earnings, a detailed computation is as
follows:

While we agree with the trial court that Ray was likewise guilty of contributory
negligence as defined under Article 2179 of the Civil Code, we find it equitable to
increase the ratio of apportionment of damages on account of the victims negligence.
Article 2179 reads as follows:
When the plaintiffs negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate
cause of the injury being the defendants lack of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be awarded.
The underlying precept on contributory negligence is that a plaintiff who is partly
responsible for his own injury should not be entitled to recover damages in full but
must bear the consequences of his own negligence. The defendant must thus be held
liable only for the damages actually caused by his negligence. [15] The determination of
the mitigation of the defendants liability varies depending on the circumstances of
each case. The Court had sustained a mitigation of 50% in Rakes v. AG & P;
[16]
20% in Phoenix Construction, Inc. v. Intermediate Appellate Court[17] andLBC Air
Cargo, Inc. v. Court of Appeals;[18] and 40% in Bank of the Philippine Islands v. Court
of Appeals[19] and Philippine Bank of Commerce v. Court of Appeals.[20]
In the case at bar, it was established that Ray, at the time of the mishap: (1) was
driving the motorcycle at a high speed; (2) was tailgating the Tamaraw jeepney; (3)

30

NET
EARNING
CAPACITY (X)

= LIFE EXPECTANCY [2/3 (80-age

at the time of death)]

x
GROSS
ANNUAL
INCOME (GAI)

= [2/3 (80-35)]

x [P31,876.00

= [2/3 (45)]

x [P31,876.00

= 30

= P478,140.00

While it is true that there can be no exact or uniform rule for measuring the value
of human life and the measure of damages cannot be arrived at by a precise
mathematical calculation,[28] we hold that the trial courts award of moral damages of
P50,000.00 for the death of Ray Castillon is in accord with the prevailing
jurisprudence.[29]

x 15,938.00

With respect to attorneys fees, it is well settled that the same should not be
awarded in the absence of stipulation except under the instances enumerated in
Article 2208 of the Civil Code. The trial court did not indicate the basis for its award.
As we have held in Rizal Surety and Insurance Company v. Court of Appeals:[30]

We sustain the awards of P33,215.00 as funeral and burial expenses being

supported with receipts;[24] P50,000.00 as death indemnity; and P50,000.00 as moral
damages. However, the award of P20,000.00 as attorneys fees must be deleted for
lack of basis.

Article 2208 of the Civil Code allows attorneys fess to be awarded by a court when its
claimant is compelled to litigate with third persons or to incur expenses to protect his interest
by reason of an unjustified act or omission of the party from whom it is sought. While judicial
discretion is here extant, an award thereof demands, nevertheless, a factual, legal or equitable
justification. The matter cannot and should not be left to speculation and conjecture ( Mirasol
vs. De la Cruz, 84 SCRA 337; Stronghold Insurance Company, Inc. vs. Court of Appeals, 173
SCRA 619).

The indemnity for death caused by a quasi-delict used to be pegged at

P3,000.00,[25] based on Article 2206 of the Civil Code, which reads:
ART. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at
least three thousand pesos, even though there may have been mitigating circumstances. In
addition:

In the case at bench, the records do not show enough basis for sustaining the award for
attorneys fees and to adjudge its payment by petitioner

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

Likewise, this Court held in Stronghold Insurance Company, Inc. vs. Court of Appeals that:
In Abrogar v. Intermediate Appellate Court [G.R. No. 67970, January 15, 1988, 157 SCRA
57] the Court had occasion to state that [t]he reason for the award of attorneys fees must be
stated in the text of the courts decision, otherwise, if it is stated only in the dispositive portion
of the decision, the same must be disallowed on appeal.

(2) If the deceased was obliged to give support according to the provisions of article 291, the
recipient who is not an heir called to the decedents inheritance by the law of testate or intestate
succession, may demand support from the person causing the death, for a period of not
exceeding five years, the exact duration to be fixed by the court;

WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed

decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the net
earnings is computed at 50% of the gross annual income to conform with the
prevailing jurisprudence, and the FURTHER MODIFICATION that petitioner NELEN
LAMBERT is ordered to pay the heirs of Ray Castillon only 50% of the damages
herein awarded, except attorneys fees which is DELETED for lack of basis.

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason of the death of the deceased.
However, the amount has been gradually increased through the years. At present,
prevailing jurisprudence fixes the amount at P50,000.00.[26]

SO ORDERED.

Paragraph 3 of the same provision also serves as the basis for the award of
moral damages in quasi-delict. The reason for the grant of moral damages has been
explained, thus:
the award of moral damages is aimed at a restoration, within the limits possible, of the
spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted. The
intensity of the pain experienced by the relatives of the victim is proportionate to the intensity
of affection for him and bears no relation whatsoever with the wealth or means of the offender.

PNR vs Brunty, G.R. No. 169891, November 2, 2006

Republic
of
the
SUPREME
Manila

[27]

FIRST DIVISION

31

Philippines
COURT

G.R. No. 169891

November 2, 2006

and Rhonda Brunty, as well as the physical injuries suffered by Garcia, were the
direct and proximate result of the gross and reckless negligence of PNR in not
providing the necessary equipment at the railroad crossing in Barangay Rizal,
Municipality of Moncada, Tarlac. They pointed out that there was no flagbar or red
light signal to warn motorists who were about to cross the railroad track, and that the
flagman or switchman was only equipped with a hand flashlight. 10 Plaintiffs likewise
averred that PNR failed to supervise its employees in the performance of their
respective tasks and duties, more particularly the pilot and operator of the
train.11 They prayed for the payment of the following damages:

PHILIPPINE
NATIONAL
RAILWAYS, Petitioner,
vs.
ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents.
DECISION
CALLEJO, SR., J.:

1.) P200,000.00 as actual and compensatory damages to plaintiff Ethel

Brunty;

This is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals
(CA) in CA-G.R. CV No. 47567 and its Resolution 2 denying the motion for
reconsideration thereof. The assailed decision affirmed with partial modification the
ruling3 of the Regional Trial Court (RTC) of Manila, Branch 20, directing petitioner
Philippine National Railways (PNR) to indemnify respondents Ethel Brunty and Juan
Manuel M. Garcia for the death of Rhonda Brunty, and to pay actual and moral
damages, attorneys fees and cost of suit.

2.) P2,800,000.00 for compensatory damages to plaintiff Ethel Brunty

representing lost or unearned income of Rhonda Brunty;
3.) Such amounts of moral and exemplary damages as may be warranted by
the evidence adduced, to plaintiff Ethel Brunty;

Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came
to the Philippines for a visit sometime in January 1980. Prior to her departure, she,
together with her Filipino host Juan Manuel M. Garcia, traveled to Baguio City on
board a Mercedes Benz sedan with plate number FU 799, driven by Rodolfo L.
Mercelita. It was about 12:00 midnight, January 25, 1980. By then, PNR Train No. T71, driven by Alfonso Reyes, was on its way to Tutuban, Metro Manila 4 as it had left
the La Union station at 11:00 p.m., January 24, 1980.

4.) At least P64,057.61 as actual damages representing medical expenses

to plaintiff Juan Manuel M. Garcia and at least P1,000,000.00 as unearned
or lost income of said plaintiff;
5.) At least P72,760.00 as actual damages representing cost of the
Mercedes Benz car to plaintiff Juan Manuel M. Garcia;

By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the
railroad crossing at Barangay Rizal, Moncada, Tarlac. Mercelita, driving at
approximately 70 km/hr, drove past a vehicle, unaware of the railroad track up ahead
and that they were about to collide with PNR Train No. T-71. Mercelita was instantly
killed when the Mercedes Benz smashed into the train; the two other passengers
suffered serious physical injuries.5 A certain James Harrow6 brought Rhonda Brunty to
the Central Luzon Doctors Hospital in Tarlac, where she was pronounced dead after
ten minutes from arrival. Garcia, who had suffered severe head injuries, was brought
via ambulance to the same hospital. He was transferred to the Manila Doctors
Hospital, and later to the Makati Medical Center for further treatment.7

6.) Such amounts of moral and exemplary damages as may be warranted by

the evidence adduced, to plaintiff Juan Manuel M. Garcia; and
7.) Attorneys fees equivalent to at least 15% of the total award to plaintiffs
herein.12
In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family
not only in the selection but also in the supervision of its employees. 14 By way of
special and affirmative defense, it stressed that it had the right of way on the railroad
crossing in question, and that it has no legal duty to put up a bar or red light signal in
any such crossing. It insisted that there were adequate, visible, and clear warning
signs strategically posted on the sides of the road before the railroad crossing. It
countered that the immediate and proximate cause of the accident was Mercelitas
negligence, and that he had the last clear chance to avoid the accident. The driver
disregarded the warning signs, the whistle blasts of the oncoming train and the

On July 28, 1981, Ethel Brunty sent a demand letter 8 to the PNR demanding payment
of actual, compensatory, and moral damages, as a result of her daughters death.
When PNR did not respond, Ethel Brunty and Garcia, filed a complaint 9 for damages
against the PNR before the RTC of Manila. The case was raffled to Branch 20 and
was docketed as Civil Case No. 83-18645. They alleged that the death of Mercelita

32

flashlight signals to stop given by the guard.15As counterclaim, it prayed that it be

awarded actual and compensatory damages, and litigation expenses.16

II.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT
PNR LIABLE FOR THE DAMAGES SUFFERED BY PLAINTIFFAPPELLEES MERCEDES BENZ IN THE AMOUNT OF SEVENTY-TWO
THOUSAND SEVEN HUNDRED AND SIXTY PESOS (P72,760.00).

Plaintiffs filed an Amended Complaint17 dated July 28, 1986 to include, as party
plaintiff, Chemical Industries of the Philippines, Inc. (Chemphil), Garcias employer,
who claimed to have paid for the latters medical and hospitalization expenses, the
services rendered by the funeral parlor of the deceased, and the expenses in
transferring the remains of Rhonda Brunty to the United States.18

III.

After trial on the merits, the RTC rendered its Decision 19 on May 21, 1990 in favor of
plaintiffs. The fallo reads:

THE LOWER COURT ERRED IN AWARDING ATTORNEYS FEES TO THE

PLAINTIFFS-APPELLEES.21

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and
Juan Manuel M. Garcia and against the defendant Philippine National Railways
directing the latter to pay the former the sum of:

In its Brief, PNR insisted that the sole and proximate cause of the accident was the
negligence and recklessness of Garcia and Mercelita.22 It insisted that it had provided
adequate warning signals at the railroad crossing23 and had exercised due care in the
selection and supervision of its employees.24 The RTC erred in awarding damages to
Rhonda Brunty as she cannot be allowed to receive what she is not in a position to
give, having been a non-resident alien who did not own a property in the
Philippines.25 It likewise questioned the award of damages on the Mercedes Benz as
well as the grant of attorneys fees.26 At the very least, Mercelita was guilty of
contributory negligence.27

1. Thirty Thousand Pesos (P30,000.00) Philippine Currency, for the death of

Rhonda Brunty formerly a resident of 1595 Ashland Avenue, Des Plaines,
Illinois, U.S.A.;
2. One Million Pesos (P1,000,000.00) Philippine Currency for moral and
actual damages due the heirs of Rhonda Brunty;

For their part, appellees countered that appellant was grossly and recklessly
negligent in not properly providing the necessary equipment at the railroad crossing in
Rizal, Moncada, Tarlac;28 appellant was negligent in not exercising due diligence of a
good father of a family in the supervision of its employees, particularly the train
operator Alfonso Reyes;29 the car was driven in a careful and diligent manner, and at
a moderate speed, with due regard to all traffic rules and regulations at that particular
time;30 the doctrine of "last clear chance" is not applicable;31 Ethel Brunty is a nonresident alien who can rightfully file the instant case; 32 and they are entitled to recover
damages from appellant.33

3. Seventy-Two Thousand Seven Hundred Sixty Pesos (P72,760.00)

Philippine Currency for damages sustained by the Mercedes Benz;
4. Fifty Thousand Pesos (P50,000.00) Philippine Currency as and for
attorney's fees, and;
5. Costs of suit.
SO ORDERED.20

The CA rendered the assailed Decision34 on August 15, 2005. The dispositive portion
reads:

Aggrieved, the PNR appealed the case to the CA, raising the following errors:
I.

WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with

PARTIAL MODIFICATIONS, increasing the death indemnity award from P30,000.00
to P50,000.00, and deleting the award for damages sustained by the Mercedes Benz.

THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT

PNR LIABLE FOR THE DEATH OF RHONDA BRUNTY AND THE
CONSEQUENT AWARD OF DAMAGES DUE THE HEIRS OF RHONDA
BRUNTY.

SO ORDERED.35

33

The appellate court affirmed the findings of the RTC as to the negligence of the PNR.
Considering the circumstances prevailing at the time of the fatal accident, it ruled that
the alleged safety measures installed by the PNR at the railroad crossing were not
merely inadequate they did not satisfy the well-settled safety standards in
transportation.36 However, the CA did not agree with the RTCs findings on the
contributory negligence of Mercelita, the driver of the Mercedes Benz. It held that
Mercelita could not have foreseen the harm that would befall him and the two other
passengers under the prevailing circumstances, thus, could not be considered guilty
of contributory negligence.37

freedom of control and greater maneuverability on the part of motor vehicles, it is

obvious that in railroad crossings, they have the last clear chance to prevent or avoid
an unwanted accident from taking place.41
In their Comment42 on the petition, respondents reiterate the findings of the RTC and
the CA that the breach by petitioner of its legal duty to provide adequate and
necessary public safety device and equipment within the area or scene of the
accident was the proximate cause of the mishap. 43 While it is true that as a general
rule, the trial court is in the best position to evaluate and observe the conduct and
demeanor of the witnesses presented during the trial, the CA, in the exercise of its
appellate jurisdiction, has the vested right to modify, reject, or set aside the trial
courts evaluation and findings.44 As to the application of the doctrine of last clear
chance, respondents claim that said issue is being raised for the first time in this
petition.45 Lastly, respondents cite foreign jurisprudence stating that if the violation is
one which gives rise to liability per se for any resulting injury, the defenses ordinarily
available in actions for diligence are barred and the contributory negligence of the
person injured is no defense.46

The PNR, now petitioner, comes before this Court in this Petition for Review on
Certiorari on the following grounds:
I.
THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN
RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY
CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION SUCH AS:

The Court is thus tasked to answer the following factual questions: (1) As between
petitioner and Mercelita, whose negligence resulted in the unfortunate collision? (2) Is
Mercelita (the driver of the Mercedes Benz) guilty of contributory negligence? Finally,
the application in this case of the doctrine of last clear chance is likewise in question.

THE RESPONDENTS DRIVER OVERTOOK ANOTHER VEHICLE BY

ACCELERATING AT 70 KILOMETERS PER HOUR WITHIN JUST 50 YARDS AWAY
FROM THE RAILROAD TRACKS.

Negligence is the omission to do something which a reasonable man, guided by

those considerations which ordinarily regulate the conduct of human affairs, would do,
or the doing of something which a prudent and reasonable man would not do. 47 In
Corliss v. Manila Railroad Company,48 this Court held that negligence is want of the
care required by the circumstances. It is a relative or comparative, not an absolute,
term and its application depends upon the situation of the parties and the degree of
care and vigilance which the circumstances reasonably require. 49 In determining
whether or not there is negligence on the part of the parties in a given situation,
jurisprudence50 has laid down the following test: Did defendant, in doing the alleged
negligent act, use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, the person is guilty of
negligence. The law, in effect, adopts the standard supposed to be supplied by the
imaginary conduct of the discreet pater familias of the Roman law.

II.
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO
THOSE OF THE TRIAL COURT REGARDING CONTRIBUTORY NEGLIGENCE OF
THE RESPONDENTS DRIVER.
III.
THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST
CLEAR CHANCE IN THE INSTANT CASE.38
Petitioner insists that the proximate cause of the mishap was Mercelitas disregard of
traffic rules and regulations. Had the court considered the fact that Mercelita had
overtaken another vehicle a few yards before the railroad track, it would have reached
a different conclusion.39 Moreover, petitioner asserts, considering that the decisions of
the RTC and the CA vary as to whether or not Mercelita was guilty of contributory
negligence, the findings of the RTC should prevail. Thus, Mercelitas contributory
negligence should not have been ignored.40 Lastly, petitioner avers that since there is

The issue of who, between the parties, was negligent was thoroughly discussed by
both the RTC and the CA. In petitions for review under Rule 45 of the Revised Rules
of Court, only questions of law may be put into issue, and questions of fact as a
general rule, cannot be entertained. The finding of negligence by the RTC, as
affirmed by the CA, is a question of fact which this Court cannot pass upon as it

34

would entail going into factual matters on which the finding of negligence was
based.51 The established rule is that factual findings of the CA affirming those of the
trial court are conclusive and binding on this Court.52

Moreover, the CA held that a vehicle coming from the Moncada side would have
difficulty in knowing that there is an approaching train because of the slight curve,
more so, at an unholy hour as 2:00 a.m. Thus, it is imperative on the part of the PNR
to provide adequate safety equipment in the area.55

The records of the instant case show that both the RTC and the CA carefully
examined the factual circumstances surrounding the case, and we find no cogent
reason to disturb the same. It is, however, worthy to emphasize that petitioner was
found negligent because of its failure to provide the necessary safety device to
ensure the safety of motorists in crossing the railroad track. As such, it is liable for
damages for violating the provisions of Article 2176 of the New Civil Code, viz:

It may broadly be stated that railroad companies owe to the public a duty of
exercising a reasonable degree of care to avoid injury to persons and property at
railroad crossings, which duties pertain both in the operation of trains and in the
maintenance of the crossings.56 Moreover, every corporation constructing or operating
a railway shall make and construct at all points where such railway crosses any public
road, good, sufficient, and safe crossings and erect at such points, at a sufficient
elevation from such road as to admit a free passage of vehicles of every kind, a sign
with large and distinct letters placed thereon, to give notice of the proximity of the
railway, and warn persons of the necessity of looking out for trains.57

Article 2176. Whoever, by act or omission, causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter.

This Court has previously determined the liability of the PNR for damages for its
failure to put a cross bar, or signal light, flagman or switchman, or semaphores. Such
failure is evidence of negligence and disregard of the safety of the public, even if
there is no law or ordinance requiring it because public safety demands that said
device or equipment be installed.58

In a long line of cases, the Court held that in order to sustain a claim based on quasidelict, the following requisites must concur: (1) damage to plaintiff; (2) negligence, by
act or omission, of which defendant, or some person for whose acts he must respond
was guilty; and (3) connection of cause and effect between such negligence and
damage.53 Applying the foregoing requisites, the CA correctly made the following
conclusions:

In view of the foregoing, we affirm the factual findings of the CA as well as its
conclusion on petitioners negligence.

It was clearly established that plaintiffs-appellees (respondents herein) sustained

damage or injury as a result of the collision. That there was negligence on the part of
PNR is, likewise, beyond cavil. Considering the circumstances prevailing at the time
of the fatal accident, the alleged safety measures installed by the PNR at the railroad
crossing is not only inadequate but does not satisfy well-settled safety standards in
transportation. x x x

As to whether or not Mercelita was guilty of contributory negligence, we agree with

petitioner. Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection. 59 To hold a person
as having contributed to his injuries, it must be shown that he performed an act that
brought about his injuries in disregard of warning or signs of an impending danger to
health and body.60 To prove contributory negligence, it is still necessary to establish a
causal link, although not proximate, between the negligence of the party and the
succeeding injury. In a legal sense, negligence is contributory only when it contributes
proximately to the injury, and not simply a condition for its occurrence.61

xxxx
x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac
presented as evidence by PNR itself would yield the following: (1.) absence of
flagbars or safety railroad bars; (2.) inadequacy of the installed warning signals; and
(3.) lack of proper lighting within the area. Thus, even if there was a flagman stationed
at the site as claimed by PNR (petitioner), it would still be impossible to know or see
that there is a railroad crossing/tracks ahead, or that there is an approaching train
from the Moncada side of the road since ones view would be blocked by a cockpit
arena. x x x54

The court below found that there was a slight curve before approaching the tracks;
the place was not properly illuminated; ones view was blocked by a cockpit arena;
and Mercelita was not familiar with the road. Yet, it was also established that
Mercelita was then driving the Mercedes Benz at a speed of 70 km/hr and, in fact,
had overtaken a vehicle a few yards before reaching the railroad track. Mercelita
should not have driven the car the way he did. However, while his acts contributed to
the collision, they nevertheless do not negate petitioners liability. Pursuant to Article

35

217962 of the New Civil Code, the only effect such contributory negligence could have
is to mitigate liability, which, however, is not applicable in this case, as will be
discussed later.1wphi1

the victims heirs to get nothing, despite the death of their kin, for the reason alone
that they cannot produce receipts.66
The relatives of the victim who incurred physical injuries in a quasi-delict are not
proscribed from recovering moral damages in meritorious cases.67 We, therefore,
sustain the award of moral damages in favor of the heirs of Rhonda Brunty.

As to whether or not the doctrine of last clear chance is applicable, we rule in the
negative. The doctrine of last clear chance states that where both parties are
negligent but the negligent act of one is appreciably later than that of the other, or
where it is impossible to determine whose fault or negligence caused the loss, the
one who had the last clear opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the antecedent negligence of plaintiff does
not preclude him from recovering damages caused by the supervening negligence of
defendant, who had the last fair chance to prevent the impending harm by the
exercise of due diligence.63 The proximate cause of the injury having been
established to be the negligence of petitioner, we hold that the above doctrine finds
no application in the instant case.

Moral damages are not punitive in nature, but are designed to compensate and
alleviate in some way the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury unjustly caused a person. Although incapable of pecuniary computation, moral
damages must nevertheless be somehow proportional to and in approximation of the
suffering inflicted.68 In the instant case, the moral suffering of the heirs of Rhonda
Brunty was sufficiently established by Ethel Brunty in her deposition,69 viz:
Q: What have you felt as a result of the death of Rhonda?

We note that the damages awarded by the appellate court consist of (1) P50,000.00
as indemnity for the death of Rhonda Brunty; (2) P1,000,000.00 as actual and moral
damages due the heirs of Rhonda Brunty; and (3)P50,000.00 as and by way of
attorneys fees. No damages, however, were awarded for the injuries suffered by
Garcia, yet, the latter never interposed an appeal before the CA nor even before this
Court. The record is, likewise, bereft of any allegation and proof as to the relationship
between Mercelita (the driver) and Rhonda Brunty. Hence, the earlier finding of
contributory negligence on the part of Mercelita, which generally has the effect of
mitigation of liability, does not apply.

A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because
she died so far away and alone, and because her death could so easily be prevented
if there had been adequate and appropriate warning signals at the railroad crossing
and it is just an unbearable and irreparable loss. In so many ways, she was my life. It
seemed to me that losing her was just like losing my own life, or worst, and even now,
there is no end to our bereavement. I am still on constant medication to be able to
sleep and to be able to perform my duties effectively in my job but it does not take
away the pain of loss.70

As to the amount of damages awarded, a modification of the same is in order,

specifically on the award of actual and moral damages in the aggregate amount
of P1,000,000.00.

In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of

Appeals,72 we awarded moral damages in the amount of P1,000,000.00 to the heirs of
the deceased. In Victory Liner, Inc. v. Heirs of Malecdan, 73 the award of P100,000.00
as moral damages was held in keeping with the purpose of the law, while in
Macalinao v. Ong,74 the amount of P50,000.00 was held sufficient.1wphi1

Actual or compensatory damages are those awarded in order to compensate a party

for an injury or loss he suffered. They arise out of a sense of natural justice, aimed at
repairing the wrong done. To be recoverable, they must be duly proved with a
reasonable degree of certainty. A court cannot rely on speculation, conjecture, or
guesswork as to the fact and amount of damages, but must depend upon competent
proof that they have suffered, and on evidence of the actual amount
thereof.64 Respondents, however, failed to present evidence for such damages;
hence, the award of actual damages cannot be sustained. However, as the heirs of
Rhonda Brunty undeniably incurred expenses for the wake and burial of the latter, we
deem it proper to award temperate damages in the amount of P25,000.00 pursuant to
prevailing jurisprudence.65 This is in lieu of actual damages as it would be unfair for

Considering the circumstances attendant in this case, we find that an award

of P500,000.00 as moral damages to the heirs of Rhonda Brunty is proper. In view of
recent jurisprudence, indemnity of P50,000.00 for the death of Rhonda Brunty and
attorneys fees amounting to P50,000.00 is likewise proper.
WHEREFORE, premises considered, the Decision of the Court of Appeals dated
August 15, 2005 is AFFIRMED WITH MODIFICATIONS. The award of actual
damages is deleted, and in lieu thereof, temperate damages ofP25,000.00 is awarded
to the heirs of Rhonda Brunty. The award of moral damages is reduced
to P500,000.00.

36

SO ORDERED.

Genobiagon vs CA, G.R. No. 40452, October 12, 1989

Republic
of
the
SUPREME
Manila

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:

Philippines
COURT

FIRST DIVISION

Contusion with Hematoma Left, Frontal and

Occipito-Parietal Regionas Fracture OccipitoParietal Bone Cerebral Hemorrhage.

G.R. No. L-40452 October 12, 1989

GREGORIO
GENOBIAGON, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

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).

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. 09949CR, dated October 10, 1974, affirming the conviction of the petitioner of the crime of
homicide thru reckless imprudence.

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:

As found by the Court of Appeals, the facts of this case are:

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.)

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

37

Supreme Court

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:

Manila

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

THIRD DIVISION

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.

ROBERTO C. SICAM and AGENCIA G.R. NO. 159617

It is quite evident that all the issues raised in the petition for review are factual. Wellentrenched 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).

de R.C. SICAM, INC.,

Petitioners,
Present:

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).

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,

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.

CHICO-NAZARIO, and
NACHURA, JJ.

LULU V. JORGE and CESAR

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.

JORGE, Promulgated:
Respondents. August 8, 2007

SO ORDERED.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Sicam vs Jorge, G.R. No. 159617, August 8, 2007

Republic of the Philippines

DECISION

38

robbery happened, all jewelry pawned were deposited with Far East Bank
near the pawnshop since it had been the practice that before they could
withdraw, advance notice must be given to the pawnshop so it could
withdraw the jewelry from the bank. Respondent Lulu then requested
petitioner Sicam to prepare the pawned jewelry for withdrawal
on November 6, 1987 but petitioner Sicam failed to return the jewelry.

AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr.
(petitioner Sicam) and Agencia de R.C. Sicam, Inc. (petitioner corporation)
seeking to annul the Decision[1] of the Court of Appeals dated March 31,
2003, and its Resolution[2] dated August 8, 2003, in CA G.R. CV No. 56633.

It appears that on different dates from September to October 1987, Lulu V.

Jorge
(respondent
Lulu)
pawned
several
pieces
of
jewelry
with Agencia de R. C. Sicam located at No. 17 Aguirre Ave., BF
Homes Paraaque, Metro Manila, to secure a loan in the total amount
of P59,500.00.

On September 28, 1988, respondent Lulu joined by her husband, Cesar

Jorge, filed a complaint against petitioner Sicam with the Regional Trial
Court of Makati seeking indemnification for the loss of pawned jewelry and
payment of actual, moral and exemplary damages as well as attorney's
fees. The case was docketed as Civil Case No. 88-2035.

Petitioner Sicam filed his Answer contending that he is not the real partyin-interest as the pawnshop was incorporated on April 20, 1987 and known
as Agencia de R.C. Sicam, Inc; that petitioner corporation had exercised
due care and diligence in the safekeeping of the articles pledged with it
and could not be made liable for an event that is fortuitous.

On October 19, 1987, two armed men entered the pawnshop and took
away whatever cash and jewelry were found inside the pawnshop vault.
The incident was entered in the police blotter of the Southern Police
District, Paraaque Police Station as follows:

Respondents
subsequently
include petitioner corporation.

Investigation shows that at above TDPO, while victims were

inside the office, two (2) male unidentified persons entered
into the said office with guns drawn. Suspects(sic) (1) went
straight inside and poked his gun toward Romeo Sicam and
thereby tied him with an electric wire while suspects (sic) (2)
poked his gun toward Divina Mata and Isabelita Rodriguez
and ordered them to lay (sic) face flat on the floor.Suspects
asked forcibly the case and assorted pawned jewelries items
mentioned above.

filed

an

Amended

Complaint

to

Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is

concerned considering that he is not the real party-in-interest.
Respondents opposed the same. The RTC denied the motion in an Order
dated November 8, 1989.[5]
After trial on the merits, the RTC rendered its Decision [6] dated January 12,
1993, dismissing respondents complaint as well as petitioners
counterclaim. The RTC held that petitioner Sicam could not be made
personally
liable
for
a
claim
arising
out
of
a
corporate
transaction; that in the Amended Complaint of respondents, they asserted
that plaintiff pawned assorted jewelries in defendants' pawnshop; and that
as a consequence of the separate juridical personality of a corporation, the
corporate debt or credit is not the debt or credit of a stockholder.

Suspects after taking the money and jewelries fled on board

a Marson Toyota unidentified plate number.[3]

Petitioner Sicam sent respondent Lulu a letter dated October 19,

1987 informing her of the loss of her jewelry due to the robbery incident in
the pawnshop. On November 2, 1987, respondent Lulu then wrote a
letter[4] to petitioner Sicam expressing disbelief stating that when the

39

The RTC further ruled that petitioner corporation could not be held liable
for the loss of the pawned jewelry since it had not been rebutted by
respondents that the loss of the pledged pieces of jewelry in the
possession of the corporation was occasioned by armed robbery; that
robbery is a fortuitous event which exempts the victim from liability for the
loss, citing the case of Austria v. Court of Appeals;[7] and that the parties
transaction was that of a pledgor and pledgee and under Art. 1174 of the
Civil Code, the pawnshop as apledgee is not responsible for those events
which could not be foreseen.

held liable for the loss of jewelries; and that robberies and hold-ups are
foreseeable risks in that those engaged in the pawnshop business are
expected to foresee.

The CA concluded that both petitioners should be jointly and severally held
liable to respondents for the loss of the pawned jewelry.

Petitioners motion for reconsideration was denied in a Resolution

dated August 8, 2003.

Respondents appealed the RTC Decision to the CA. In a Decision

dated March 31, 2003, the CA reversed the RTC, the dispositive portion of
which reads as follows:

Hence, the instant petition for review with the following assignment of
errors:
WHEREFORE, premises considered, the instant Appeal is GRANTED, and
the Decision dated January 12, 1993,of the Regional Trial Court of Makati,
Branch 62, is hereby REVERSED and SET ASIDE, ordering
the appellees to pay appellants the actual value of the lost jewelry
amounting to P272,000.00, and attorney' fees of P27,200.00.[8]

THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED

ITSELF TO REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN
FACT IT REPRODUCED AS ITS OWN WITHOUT IN THE MEANTIME
ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN
THEIR
BRIEF,
WHICH
ARGUMENT
WAS
PALPABLY
UNSUSTAINABLE.

In finding petitioner Sicam liable together with petitioner corporation, the

CA applied the doctrine of piercing the veil of corporate entity reasoning
that respondents were misled into thinking that they were dealing with the
pawnshop owned by petitioner Sicam as all the pawnshop tickets issued to
them bear the words Agencia de R.C. Sicam; and that there was no
indication on the pawnshop tickets that it was the petitioner corporation
that owned the pawnshop which explained why respondents had to amend
their complaintimpleading petitioner corporation.

THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT

OPENED ITSELF TO REVERSAL BY THIS HONORABLE COURT,
WHEN IT AGAIN ADOPTED UNCRITICALLY (BUT WITHOUT
ACKNOWLEDGING
IT)
THE
SUBMISSIONS
OF
THE
RESPONDENTS IN THEIR BRIEF WITHOUT ADDING ANYTHING
MORE THERETO DESPITE THE FACT THAT THE SAID
ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN
SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON
RECORD.[9]

The CA further held that the corresponding diligence required of a

pawnshop is that it should take steps to secure and protect the pledged
items and should take steps to insure itself against the loss of articles
which are entrusted to its custody as it derives earnings from the
pawnshop trade which petitioners failed to do; that Austria is not
applicable to this case since the robbery incident happened in 1961 when
the criminality had not as yet reached the levels attained in the present
day; that they are at least guilty of contributory negligence and should be

Anent the first assigned error, petitioners point out that the CAs finding
that petitioner Sicam is personally liable for the loss of the pawned
jewelries is a virtual and uncritical reproduction of the arguments set out
on pp. 5-6 of the Appellants brief.[10]

40

crimes, insurance companies refused to cover pawnshops

and banks because of high probability of losses due to
robberies;

Petitioners argue that the reproduced arguments of respondents in their

Appellants Brief suffer from infirmities, as follows:

(3) In Hernandez v. Chairman, Commission on Audit (179

SCRA 39, 45-46), the victim of robbery was exonerated
from liability for the sum of money belonging to others and
lost by him to robbers.

(1) Respondents conclusively asserted in paragraph 2

of their Amended Complaint that Agencia de R.C. Sicam,
Inc.
is
the
present
owner
of Agencia de
R.C. Sicam Pawnshop, and therefore, the CA cannot rule
against said conclusive assertion of respondents;

(2) The issue resolved against petitioner Sicam was not

among those raised and litigated in the trial court; and

Respondents filed their Comment and petitioners filed their Reply

thereto. The parties subsequently submitted their respective Memoranda.

(3) By reason of the above infirmities, it was error for the

CA to have pierced the corporate veil since a corporation
has a personality distinct and separate from its individual
stockholders or members.

We find no merit in the petition.

To begin with, although it is true that indeed the CA findings were exact
reproductions of the arguments raised in respondents (appellants) brief
filed with the CA, we find the same to be not fatally infirmed. Upon
examination of the Decision, we find that it expressed clearly and distinctly
the facts and the law on which it is based as required by Section 8, Article
VIII of the Constitution. The discretion to decide a case one way or another
is broad enough to justify the adoption of the arguments put forth by one
of the parties, as long as these are legally tenable and supported by law
and the facts on records.[11]

Anent the second error, petitioners point out that the CA finding on their
negligence is likewise an unedited reproduction of respondents brief which
had the following defects:

(1) There were unrebutted evidence on record that

petitioners
had
observed
the
diligence
required of them, i.e, they wanted to open a vault with a
nearby bank for purposes of safekeeping the pawned
articles but was discouraged by the Central Bank (CB)
since CB rules provide that they can only store the pawned
articles in a vault inside the pawnshop premises and no
other place;

Our jurisdiction under Rule 45 of the Rules of Court is limited to the review
of errors of law committed by the appellate court. Generally, the findings of
fact of the appellate court are deemed conclusive and we are not dutybound to analyze and calibrate all over again the evidence adduced by the
parties in the court a quo.[12] This rule, however, is not without exceptions,
such as where the factual findings of the Court of Appeals and the trial
court are conflicting or contradictory[13] as is obtaining in the instant case.

(2) Petitioners were adjudged negligent as they did not

take insurance against the loss of the pledged jelweries,
but it is judicial notice that due to high incidence of

However, after a careful examination of the records, we find no justification

to absolve petitioner Sicam from liability.

41

The Committee on the Revision of the Rules of Court explained the second
exception in this wise:

The CA correctly pierced the veil of the corporate fiction and adjudged
petitioner Sicam liable together with petitioner corporation. The rule is that
the veil of corporate fiction may be pierced when made as a shield to
perpetrate fraud and/or confuse legitimate issues. [14] The theory of
corporate entity was not meant to promote unfair objectives or otherwise
to shield them.[15]

x x x if a party invokes an admission by an adverse party,

but cites the admission out of context, then the one
making the admission may show that he made no such
admission, or that his admission was taken out of
context.

Notably, the evidence on record shows that at the time respondent Lulu
pawned her jewelry, the pawnshop was owned by petitioner Sicam himself.
As correctly observed by the CA, in all the pawnshop receipts issued to
respondent Lulu in September 1987, all bear the words Agencia de R.
C. Sicam, notwithstanding that the pawnshop was allegedly incorporated in
April 1987. The receipts issued after such alleged incorporation were still in
the name of Agencia de R. C. Sicam, thus inevitably misleading, or at the
very least, creating the wrong impression to respondents and the public as
well, that the pawnshop was owned solely by petitioner Sicam and not by a
corporation.

x x x that the party can also show that he made no

such admission, i.e., not in the sense in which the
admission is made to appear.

That is the reason for the modifier such because if the rule
simply states that the admission may be contradicted by
showing that no admission was made, the rule would not
really be providing for a contradiction of the admission but
just a denial.[18] (Emphasis supplied).

Even
petitioners
counsel,
Atty. Marcial T. Balgos,
in
his
letter[16] dated October 15, 1987 addressed to the Central Bank, expressly
referred to petitioner Sicam as the proprietor of the pawnshop
notwithstanding the alleged incorporation in April 1987.
While it is true that respondents alleged in their Amended Complaint that
petitioner corporation is the present owner of the pawnshop, they did so
only
because
petitioner Sicamalleged
in
his
Answer
to
the
original complaint filed against him that he was not the real party-ininterest as the pawnshop was incorporated in April 1987. Moreover, a
reading of the Amended Complaint in its entirety shows that respondents
referred to both petitioner Sicam and petitioner corporation where they
(respondents) pawned their assorted pieces of jewelry and ascribed to both
the failure to observe due diligence commensurate with the business which
resulted in the loss of their pawned jewelry.

We also find no merit in petitioners' argument that since respondents had

alleged in their Amended Complaint that petitioner corporation is the
present owner of the pawnshop, the CA is bound to decide the case on that
basis.

Section 4 Rule 129 of the Rules of Court provides that an admission, verbal
or written, made by a party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
Thus, the general rule that a judicial admission is conclusive upon the
party making it and does not require proof, admits of two exceptions, to
wit: (1) when it is shown that such admission was made through palpable
mistake, and (2) when it is shown that no such admission was in fact
made. The latter exception allows one to contradict an admission
by denying that he made such an admission.[17]

Markedly, respondents, in their Opposition to petitioners Motion to Dismiss

Amended Complaint, insofar as petitioner Sicam is concerned, averred as
follows:

42

Roberto C. Sicam was named the defendant in the original

complaint because the pawnshop tickets involved in this
case did not show that the R.C. Sicam Pawnshop was a
corporation. In paragraph 1 of his Answer, he admitted the
allegations in paragraph 1 and 2 of the Complaint. He
merely added that defendant is not now the real party in
interest in this case.

This Court sustains the contention of the defendant

Roberto C. Sicam, Jr. The amended complaint itself asserts
that plaintiff pawned assorted jewelries in defendant's
pawnshop. It has been held that as a consequence of the
separate juridical personality of a corporation, the
corporate debt or credit is not the debt or credit of the
stockholder, nor is the stockholder's debt or credit that of a
corporation.[21]

It was defendant Sicam's omission to correct the pawnshop

tickets used in the subject transactions in this case which
was the cause of the instant action. He cannot now ask for
the dismissal of the complaintagainst him simply on the
mere allegation that his pawnshop business is now
incorporated. It is a matter of defense, the merit of which
can only be reached after consideration of the evidence to
be presented in due course.[19]

Clearly, in view of the alleged incorporation of the pawnshop, the issue of

whether petitioner Sicam is personally liable is inextricably connected with
the determination of the question whether the doctrine of piercing the
corporate veil should or should not apply to the case.

Unmistakably,
the
alleged
admission
made
in
respondents'
Amended Complaint was taken out of context by petitioner Sicam to suit
his own purpose. Ineluctably, the fact that petitioner Sicam continued to
issue pawnshop receipts under his name and not under the corporation's
name militates for the piercing of the corporate veil.

The next question is whether petitioners

loss of the pawned articles in their possession.

are

liable

for

the

Petitioners insist that they are not liable since robbery is a fortuitous event
and they are not negligent at all.

We likewise find no merit in petitioners' contention that the CA erred in

piercing the veil of corporate fiction of petitioner corporation, as it was not
an issue raised and litigated before the RTC.

We are not persuaded.

Petitioner Sicam had alleged in his Answer filed with the trial court that he
was not the real party-in-interest because since April 20, 1987, the
pawnshop business initiated by him was incorporated and known
as Agencia de R.C. Sicam. In the pre-trial brief filed by petitioner Sicam, he
submitted that as far as he was concerned, the basic issue was whether he
is the real party in interest against whom the complaint should be directed.
[20]
In fact, he subsequently moved for the dismissal of the complaint as to
him but was not favorably acted upon by the trial court. Moreover, the
issue was squarely passed upon, although erroneously, by the trial court in
its Decision in this manner:

Article 1174 of the Civil Code provides:

Art. 1174. Except in cases expressly specified by the law, or when it is

otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen or which, though foreseen, were
inevitable.

x x x The defendant Roberto Sicam, Jr likewise denies

liability as far as he is concerned for the reason that he
cannot be made personally liable for a claim arising from a
corporate transaction.
Fortuitous events by definition are extraordinary events not foreseeable or
avoidable. It is therefore, not enough that the event should not have been

43

foreseen or anticipated, as is commonly believed but it must be one

impossible to foresee or to avoid. The mere difficulty to foresee the
happening is not impossibility to foresee the same. [22]

Moreover, petitioners failed to show that they were free from any
negligence by which the loss of the pawned jewelry may have been
occasioned.

To constitute a fortuitous event, the following elements must concur: (a)

the cause of the unforeseen and unexpected occurrence or of the failure of
the debtor to comply with obligations must be independent of human will;
(b) it must be impossible to foresee the event that constitutes
the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c)
the occurrence must be such as to render it impossible for the debtor to
fulfill obligations in a normal manner; and, (d) the obligor must be free
from any participation in the aggravation of the injury or loss. [23]

Robbery per se, just like carnapping, is not a fortuitous event. It does not
foreclose the possibility of negligence on the part of herein
petitioners. In Co v. Court of Appeals,[27] the Court held:

It is not a defense for a repair shop of motor

vehicles to escape liability simply because the damage or
loss of a thing lawfully placed in its possession was due
to carnapping. Carnapping per se cannot be considered as
a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another's
rightful possession, as in cases of carnapping, does
not automatically give rise to a fortuitous event. To
be considered as such, carnapping entails more
than the mere forceful taking of another's property.
It must be proved and established that the event
was an act of God or was done solely by third
parties and that neither the claimant nor the
person
alleged
to
be
negligent
has
any
participation. In accordance with the Rules of
Evidence, the burden of proving that the loss was
due to a fortuitous event rests on him who invokes
it
which
in
this
case
is
the
private
respondent. However, other than the police report of the
allegedcarnapping incident, no other evidence was
presented by private respondent to the effect that the
incident was not due to its fault. A police report of an
alleged crime, to which only private respondent is privy,
does not suffice to establish the carnapping. Neither does
it prove that there was no fault on the part of private
respondent notwithstanding the parties' agreement at the
pre-trial that the car wascarnapped. Carnapping does not
foreclose the possibility of fault or negligence on the part
of private respondent.[28]

The burden of proving that the loss was due to a fortuitous event rests on
him who invokes it.[24] And, in order for a fortuitous event to exempt one
from liability, it is necessary that one has committed no negligence or
misconduct that may have occasioned the loss. [25]

It has been held that an act of God cannot be invoked to protect a person
who has failed to take steps to forestall the possible adverse consequences
of such a loss. One's negligence may have concurred with an act of God in
producing damage and injury to another; nonetheless, showing that the
immediate or proximate cause of the damage or injury was a fortuitous
event would not exempt one from liability. When the effect is found to be
partly the result of a person's participation -- whether by active
intervention, neglect or failure to act -- the whole occurrence is humanized
and removed from the rules applicable to acts of God. [26]

Petitioner Sicam had testified that there was a security guard in their
pawnshop at the time of the robbery. He likewise testified that when he
started the pawnshop business in 1983, he thought of opening a vault with
the nearby bank for the purpose of safekeeping the valuables but was
discouraged by the Central Bank since pawned articles should only be
stored in a vault inside the pawnshop. The very measures which petitioners
had allegedly adopted show that to them the possibility of robbery was not
only
foreseeable,
but
actually
foreseen
and
anticipated. Petitioner Sicams testimony, in effect, contradicts petitioners
defense of fortuitous event.

Just like in Co, petitioners merely presented the police report of

the Paraaque Police Station on the robbery committed based on the
report of petitioners' employees which is not sufficient to establish robbery.
Such report also does not prove that petitioners were not at fault.

44

On the contrary, by the very evidence of petitioners, the CA did not err in
finding that petitioners are guilty of concurrent or contributory negligence
as provided in Article 1170 of the Civil Code, to wit:

We expounded in Cruz v. Gangan[30] that negligence is the omission

to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do; or the
doing of something which a prudent and reasonable man would not do.
[31]
It is want of care required by the circumstances.

Art. 1170. Those who in the performance of their

obligations are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof, are
liable for damages.[29]

A review of the records clearly shows that petitioners failed to exercise

reasonable care and caution that an ordinarily prudent person would have
used in the same situation. Petitioners were guilty of negligence in the
operation of their pawnshop business. Petitioner Sicam testified, thus:

Article 2123 of the Civil Code provides that with regard to pawnshops and
other establishments which are engaged in making loans secured by
pledges, the special laws and regulations concerning them shall be
observed, and subsidiarily, the provisions on pledge, mortgage
and antichresis.

Court:

The provision on pledge, particularly Article 2099 of the Civil

Code, provides that the creditor shall take care of the thing pledged with
the diligence of a good father of a family. This means that petitioners must
take care of the pawns the way a prudent person would as to his own
property.

Q. Then how come that the robbers were able to enter the
premises when according to you there was a security
guard?

Q. Do you have security guards in your pawnshop?

A. Yes, your honor.

A. Sir, if these robbers can rob a bank, how much more a

pawnshop.

In this connection, Article 1173 of the Civil Code further provides:

Q. I am asking you how were the robbers able to enter

despite the fact that there was a security guard?
A. At the time of the incident which happened about 1:00
and 2:00 o'clock in the afternoon and it happened on a
Saturday and everything was quiet in the area BF
Homes Paraaque they pretended to pawn an article in
the pawnshop, so one of my employees allowed him to
come in and it was only when it was announced that it
was a hold up.

Art. 1173. The fault or negligence of the obligor consists in

the omission of that diligence which is required by the
nature of the obligation and corresponds with the
circumstances of the persons, of time and of the place.
When negligence shows bad faith, the provisions of Articles
1171 and 2201, paragraph 2 shall apply.

If the law or contract does not state the diligence

which is to be observed in the performance, that which is
expected of a good father of a family shall be required.

Q. Did you come to know how the vault was opened?

A. When the pawnshop is official (sic) open your honor the
pawnshop is partly open. The combination is off.

45

Q. No one open (sic) the vault for the robbers?

We,
however,
do
not
agree
with
the
CA
when
it
found petitioners negligent for not taking steps to insure themselves
against loss of the pawned jewelries.

A. No one your honor it was open at the time of the robbery.

Under Section 17 of Central Bank Circular No. 374, Rules and Regulations
for Pawnshops, which took effect on July 13, 1973, and which was issued
pursuant to Presidential Decree No. 114, Pawnshop Regulation Act, it is
provided that pawns pledged must be insured, to wit:

Q. It is clear now that at the time of the robbery the vault

was open the reason why the robbers were able to get
all the items pawned to you inside the vault.
A. Yes sir.[32]

Sec. 17. Insurance of Office Building and Pawns- The place

of business of a pawnshop and the pawns pledged to it
must be insured against fire and against burglary as
well as for the latter(sic), by an insurance company
accredited by the Insurance Commissioner.

revealing that there were no security measures adopted by petitioners in

the operation of the pawnshop. Evidently, no sufficient precaution and
vigilance were adopted by petitioners to protect the pawnshop from
unlawful intrusion. There was no clear showing that there was any security
guard at all. Or if there was one, that he had sufficient training in securing
a pawnshop. Further, there is no showing that the alleged security guard
exercised all that was necessary to prevent any untoward incident or to
ensure that no suspicious individuals were allowed to enter the
premises. In fact, it is even doubtful that there was a security guard, since
it is quite impossible that he would not have noticed that the robbers were
armed with caliber .45 pistols each, which were allegedly poked at the
employees.[33] Significantly, the alleged security guard was not presented
at
all
to
corroborate
petitioner Sicam's claim;
not
one of petitioners' employees who were present during the robbery
incident testified in court.

However, this Section was subsequently amended by CB Circular No. 764

which took effect on October 1, 1980, to wit:

Sec. 17 Insurance of Office Building and Pawns The office

building/premises and pawns of a pawnshop must be
insured against fire. (emphasis supplied).
where the
requirement
that
insurance
against
burglary
was
deleted. Obviously, the Central Bank considered it not feasible
to require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the
above-quoted amendment, there is no statutory duty imposed on
petitioners to insure the pawned jewelry in which case it was error for the
CA to consider it as a factor in concluding that petitioners were negligent.

Furthermore, petitioner Sicam's admission that the vault was open at the
time of robbery is clearly a proof of petitioners' failure to observe the care,
precaution and vigilance that the circumstances justly demanded.
Petitioner Sicam testified that once the pawnshop was open, the
combination was already off. Considering petitioner Sicam's testimony that
the robbery took place on a Saturday afternoon and the area in BF
Homes Paraaque at that time was quiet, there was more reason for
petitioners to have exercised reasonable foresight and diligence in
protecting the pawned jewelries. Instead of taking the precaution to
protect them, they let open the vault, providing no difficulty for the robbers
to cart away the pawned articles.

Nevertheless, the preponderance of evidence shows that petitioners failed

to exercise the diligence required of them under the Civil Code.

46

The diligence with which the law requires the individual at all times to
govern his conduct varies with the nature of the situation in which he is
placed and the importance of the act which he is to perform. [34] Thus, the
cases of Austria v. Court of Appeals,[35] Hernandez v. Chairman,
Commission on Audit[36] and Cruz v. Gangan[37] cited by petitioners in their
pleadings, where the victims of robbery were exonerated from liability, find
no application to the present case.

In Hernandez, Teodoro Hernandez was the OIC and special disbursing

officer of the Ternate Beach Project of the Philippine Tourism in Cavite. In
the morning of July 1, 1983, a Friday, he went to Manila to encash two
checks covering the wages of the employees and the operating expenses
of the project. However for some reason, the processing of the check was
delayed and was completed at about 3 p.m. Nevertheless, he decided
to encash the check because the project employees would be waiting for
their pay the following day; otherwise, the workers would have to wait until
July 5, the earliest time, when the main office would open. At that
time, he had two choices: (1) return to Ternate, Cavite that same afternoon
and arrive early evening; or (2) take the money with him to his house
in Marilao, Bulacan, spend the night there, and leave for Ternate the
following day. He chose the second option, thinking it was the safer
one. Thus, a little past 3 p.m., he took a passenger jeep bound for Bulacan.
While the jeep was on Epifanio de los Santos Avenue, the jeep was held up
and the money kept by Hernandez was taken, and the robbers jumped out
of the jeep and ran. Hernandez chased the robbers and caught up with one
robber who was subsequently charged with robbery and pleaded guilty.
The other robber who held the stolen money escaped. The Commission on
Audit found Hernandez negligent because he had not brought the cash
proceeds of the checks to his office in Ternate, Cavite for safekeeping,
which is the normal procedure in the handling of funds. We held that
Hernandez was not negligent in deciding to encash the check and bringing
it home to Marilao, Bulacan instead of Ternate, Cavite due to the lateness
of the hour for the following reasons: (1) he was moved by unselfish motive
for his co-employees to collect their wages and salaries the following day,
a Saturday, a non-working, because to encash the check on July 5, the next
working day after July 1, would have caused discomfort to laborers who
were dependent on their wages for sustenance; and (2) that
choosing Marilao as a safer destination, being nearer, and in view of the
comparative hazards in the trips to the two places, said decision seemed
logical at that time. We further held that the fact that two robbers attacked
him in broad daylight in the jeep while it was on a busy highway and in the
presence of other passengers could not be said to be a result of his
imprudence and negligence.

In Austria, Maria Abad received from Guillermo Austria a pendant with

diamonds to be sold on commission basis, but which Abad failed to
subsequently return because of a robbery committed upon her in
1961. The incident became the subject of a criminal case filed against
several persons. Austria filed an action against Abad and her husband
(Abads) for recovery of the pendant or its value, but the Abads set up the
defense that the robbery extinguished their obligation. The RTC ruled in
favor of Austria, as the Abadsfailed to prove robbery; or, if committed, that
Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared
the Abads not responsible for the loss of the jewelry on account of a
fortuitous event. We held that for the Abads to be relieved from the civil
liability of returning the pendant under Art. 1174 of the Civil Code, it would
only be sufficient that the unforeseen event, the robbery, took place
without any concurrent fault on the debtors part, and this can be done by
preponderance of evidence; that to be free from liability for reason of
fortuitous event, the debtor must, in addition to the casus itself, be free of
any concurrent or contributory fault or negligence.[38]

We found in Austria that under the circumstances prevailing at the time the
Decision was promulgated in 1971, the City of Manila and its suburbs had a
high incidence of crimes against persons and property that rendered travel
after nightfall a matter to be sedulously avoided without suitable
precaution and protection; that the conduct of Maria Abad in returning
alone to her house in the evening carrying jewelry of considerable value
would have been negligence per se and would not exempt her from
responsibility in the case of robbery. However we did not hold Abad liable
for negligence since, the robbery happened ten years previously; i.e.,
1961, when criminality had not reached the level of incidence obtaining in
1971.

Unlike in Hernandez where the robbery happened in a public utility, the

robbery in this case took place in the pawnshop which is under the control
of petitioners. Petitioners had the means to screen the persons who were
allowed entrance to the premises and to protect itself from unlawful
intrusion. Petitioners had failed to exercise precautionary measures in
ensuring
that
the
robbers
were
prevented
from
entering
the pawnshop and for keeping the vault open for the day, which paved the
way for the robbers to easily cart away the pawned articles.

In contrast, the robbery in this case took place in 1987 when robbery was
already prevalent and petitioners in fact had already foreseen it as they
wanted to deposit the pawn with a nearby bank for safekeeping. Moreover,
unlike in Austria, where no negligence was committed, we found
petitioners negligent in securing their pawnshop as earlier discussed.

47

In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological

Education and Skills Development Authority (TESDA), boarded the Light
Rail Transit (LRT) fromSen. Puyat Avenue to Monumento when her handbag
was slashed and the contents were stolen by an unidentified person.
Among those stolen were her wallet and the government-issued cellular
phone. She then reported the incident to the police authorities; however,
the thief was not located, and the cellphone was not recovered. She also
reported the loss to the Regional Director of TESDA, and she requested that
she be freed from accountability for the cellphone. The Resident Auditor
denied her request on the ground that she lacked the diligence required in
the custody of government property and was ordered to pay the purchase
value in the total amount of P4,238.00. The COA found no sufficient
justification to grant the request for relief from accountability. We reversed
the ruling and found that riding the LRT cannot per se be denounced as a
negligent act more so because Cruzs mode of transit was influenced by
time and money considerations; that she boarded the LRT to be able to
arrive in Caloocan in time for her 3 pm meeting; that any prudent and
rational person under similar circumstance can reasonably be expected to
do the same; that possession of a cellphone should not hinder one from
boarding the LRT coach as Cruz did considering that whether she rode a
jeep or bus, the risk of theft would have also been present; that because of
her relatively low position and pay, she was not expected to have her own
vehicle or to ride a taxicab; she did not have a government assigned
vehicle; that placing the cellphone in a bag away from covetous eyes and
holding on to that bag as she did is ordinarily sufficient care of
a cellphone while traveling on board the LRT; that the records did not show
any specific act of negligence on her part and negligence can never be
presumed.

SO ORDERED.

Juntilla vs Fontona, G.R. No. L-45637, May 31, 1985

Republic
of
the
SUPREME
Manila

Philippines
COURT

FIRST DIVISION
G.R. No. L-45637 May 31, 1985
ROBERTO
vs.
CLEMENTE
FONTANAR,
CAMORO, respondents.

JUNTILLA, petitioner,
FERNANDO

BANZON

and

BERFOL

Valentin A. Zozobrado for petitioner.

Ruperto N. Alfarara for respondents.

GUTIERREZ, JR., J.:

Unlike in the Cruz case, the robbery in this case happened in
petitioners' pawnshop and they were negligent in not exercising the
precautions justly demanded of a pawnshop.

This is a petition for review, on questions of law, of the decision of the Court of First
Instance of Cebu which reversed the decision of the City Court of Cebu and
exonerated the respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint for breach of contract and
damages against the respondents are summarized by the Court of First Instance of
Cebu as follows:

WHEREFORE, except for the insurance aspect, the Decision of the

Court of Appeals dated March 31, 2003 and its Resolution dated August 8,
2003, are AFFIRMED.

The facts established after trial show that the plaintiff was a
passenger of the public utility jeepney bearing plate No. PUJ-71-7
on the course of the trip from Danao City to Cebu City. The jeepney
was driven by defendant Berfol Camoro. It was registered under the

Costs against petitioners.

48

franchise of defendant Clemente Fontanar but was actually owned

by defendant Fernando Banzon. When the jeepney reached
Mandaue City, the right rear tire exploded causing the vehicle to
turn turtle. In the process, the plaintiff who was sitting at the front
seat was thrown out of the vehicle. Upon landing on the ground, the
plaintiff momentarily lost consciousness. When he came to his
senses, he found that he had a lacerated wound on his right palm.
Aside from this, he suffered injuries on his left arm, right thigh and
on his back. (Exh. "D"). Because of his shock and injuries, he went
back to Danao City but on the way, he discovered that his "Omega"
wrist watch was lost. Upon his arrival in Danao City, he immediately
entered the Danao City Hospital to attend to his injuries, and also
requested his father-in-law to proceed immediately to the place of
the accident and look for the watch. In spite of the efforts of his
father-in-law, the wrist watch, which he bought for P 852.70 (Exh.
"B") could no longer be found.

Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a
finding that the accident in question was due to a fortuitous event. The dispositive
portion of the decision reads:
WHEREFORE, judgment is hereby rendered exonerating the
defendants from any liability to the plaintiff without pronouncement
as to costs.
A motion for reconsideration was denied by the Court of First Instance.
The petitioner raises the following alleged errors committed by the Court of First
Instance of Cebu on appeal
a. The Honorable Court below committed grave abuse of discretion
in failing to take cognizance of the fact that defendants and/or their
employee failed to exercise "utmost and/or extraordinary diligence"
required of common carriers contemplated under Art. 1755 of the
Civil Code of the Philippines.

xxx xxx xxx

Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with
damages before the City Court of Cebu City, Branch I against Clemente Fontanar,
Fernando Banzon and Berfol Camoro.

b. The Honorable Court below committed grave abuse of discretion

by deciding the case contrary to the doctrine laid down by the
Honorable Supreme Court in the case of Necesito et al. v. Paras, et
al.

The respondents filed their answer, alleging inter alia that the accident that caused
losses to the petitioner was beyond the control of the respondents taking into account
that the tire that exploded was newly bought and was only slightly used at the time it
blew up.

We find the petition impressed with merit.

The City Court and the Court of First Instance of Cebu found that the right rear tire of
the passenger jeepney in which the petitioner was riding blew up causing the vehicle
to fall on its side. The petitioner questions the conclusion of the respondent court
drawn from this finding of fact.

After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in
favor of the petitioner and against the respondents. The dispositive portion of the
decision reads:

The Court of First Instance of Cebu erred when it absolved the carrier from any
liability upon a finding that the tire blow out is a fortuitous event. The Court of First
Instance of Cebu ruled that:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff

and against the defendants and the latter are hereby ordered,
jointly and severally, to pay the plaintiff the sum of P750.00 as
reimbursement for the lost Omega wrist watch, the sum of P246.64
as unrealized salary of the plaintiff from his employer, the further
sum of P100.00 for the doctor's fees and medicine, an additional
sum of P300.00 for attorney's fees and the costs.

After reviewing the records of the case, this Court finds that the
accident in question was due to a fortuitous event. A tire blow-out,
such as what happened in the case at bar, is an inevitable accident
that exempts the carrier from liability, there being absence of a
showing that there was misconduct or negligence on the part of the
operator in the operation and maintenance of the vehicle involved.

The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

49

The fact that the right rear tire exploded, despite being brand new,
constitutes a clear case of caso fortuito which can be a proper
basis for exonerating the defendants from liability. ...

adverse road conditions or that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents. The sudden blowing-up,
therefore, could have been caused by too much air pressure injected into the tire
coupled by the fact that the jeepney was overloaded and speeding at the time of the
accident.

The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v.
Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, where the
Court of Appeals ruled that:

In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics
of caso fortuito:

A tire blow-out does not constitute negligence unless the tire was
already old and should not have been used at all. Indeed, this
would be a clear case of fortuitous event.

xxx xxx xxx

... In a 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 occurrence, 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 (debtor) must be
free from any participation in the aggravation of the injury resulting
to the creditor. (5 Encyclopedia Juridica Espanola, 309.)

The foregoing conclusions of the Court of First Instance of Cebu are based on a
misapprehension of overall facts from which a conclusion should be drawn. The
reliance of the Court of First Instance on the Rodriguez case is not in order. In La
Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:
Petitioner maintains that a tire blow-out is a fortuitous event and
gives rise to no liability for negligence, citing the rulings of the Court
of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R.
No. 8136, December 29, 1954, and People v. Palapad, CA-G.R.
No. 18480, June 27, 1958. These rulings, however, not only are not
binding on this Court but were based on considerations quite
different from those that obtain in the case at bar. The appellate
court there made no findings of any specific acts of negligence on
the part of the defendants and confined itself to the question of
whether or not a tire blow-out, by itself alone and without a showing
as to the causative factors, would generate liability. ...

In the case at bar, the cause of the unforeseen and unexpected occurrence was not
independent of the human will. The accident was caused either through the
negligence of the driver or because of mechanical defects in the tire. Common
carriers should teach their drivers not to overload their vehicles, not to exceed safe
and legal speed limits, and to know the correct measures to take when a tire blows up
thus insuring the safety of passengers at all times. Relative to the contingency of
mechanical defects, we held in Necesito, et al. v. Paras, et al. (104 Phil. 75), that:

In the case at bar, there are specific acts of negligence on the part of the
respondents. The records show that the passenger jeepney turned turtle and jumped
into a ditch immediately after its right rear tire exploded. The evidence shows that the
passenger jeepney was running at a very fast speed before the accident. We agree
with the observation of the petitioner that a public utility jeep running at a regular and
safe speed will not jump into a ditch when its right rear tire blows up. There is also
evidence to show that the passenger jeepney was overloaded at the time of the
accident. The petitioner stated that there were three (3) passengers in the front seat
and fourteen (14) passengers in the rear.

... The preponderance of authority is in favor of the doctrine that a

passenger is entitled to recover damages from a carrier for an
injury resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been
discovered by the carrier if it had exercised the degree of care
which under the circumstances was incumbent upon it, with regard
to inspection and application of the necessary tests. For the
purposes of this doctrine, the manufacturer is considered as being
in law the agent or servant of the carrier, as far as regards the work
of constructing the appliance. According to this theory, the good
repute of the manufacturer will not relieve the carrier from liability'

While it may be true that the tire that blew-up was still good because the grooves of
the tire were still visible, this fact alone does not make the explosion of the tire a
fortuitous event. No evidence was presented to show that the accident was due to

50

(10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v. Roy, 102
U.S. 451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172;
42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann. Cas. 1916E 929).

SO ORDERED.

The rationale of the carrier's liability is the fact that the passenger
has neither choice nor control over the carrier in the selection and
use of the equipment and appliances in use by the carrier. Having
no privity whatever with the manufacturer or vendor of the defective
equipment, the passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that the carrier, while
not an insurer of the safety of his passengers, should nevertheless
be held to answer for the flaws of his equipment if such flaws were
at all discoverable. ...

Southeastern College vs CA, G.R. No. 126389, July 10, 1998

Republic
of
the
Philippines
SUPREME
COURT
Manila
THIRD DIVISION

It is sufficient to reiterate that the source of a common carrier's legal liability is the
contract of carriage, and by entering into the said contract, it binds itself to carry the
passengers safely as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with a due regard for all the circumstances. The
records show that this obligation was not met by the respondents.

G.R. No. 126389 July 10, 1998

SOUTHEASTERN COLLEGE INC., petitioner,
vs.

The respondents likewise argue that the petitioner cannot recover any amount for
failure to prove such damages during the trial. The respondents submit that if the
petitioner was really injured, why was he treated in Danao City and not in Mandaue
City where the accident took place. The respondents argue that the doctor who
issued the medical certificate was not presented during the trial, and hence not crossexamined. The respondents also claim that the petitioner was not wearing any wrist
watch during the accident.

COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA

DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, respondents.

PURISIMA, J.:

It should be noted that the City Court of Cebu found that the petitioner had a
lacerated wound on his right palm aside from injuries on his left arm, right thigh and
on his back, and that on his way back to Danao City, he discovered that his "Omega"
wrist watch was lost. These are findings of facts of the City Court of Cebu which we
find no reason to disturb. More so when we consider the fact that the Court of First
Instance of Cebu impliedly concurred in these matters when it confined itself to the
question of whether or not the tire blow out was a fortuitous event.

Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision 1 promulgated on July 31, 1996, and Resolution 2 dated September 12, 1996
of the Court of Appeals 3 in CA-G.R. No. 41422, entitled "Juanita de Jesus vda. de
Dimaano, et al. vs. Southeastern College, Inc.", which reduced the moral damages
awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution under attack
denied petitioner's motion for reconsideration.

WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV

appealed from is hereby REVERSED and SET ASIDE, and the decision of the City
Court of Cebu, Branch I is REINSTATED, with the modification that the damages shall
earn interest at 12% per annum and the attorney's fees are increased to SIX
HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.

Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On
October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit Metro
Manila. Buffeted by very strong winds, the roof of petitioner's building was partly
ripped off and blown away, landing on and destroying portions of the roofing of private
respondents' house. After the typhoon had passed, an ocular inspection of the

51

destroyed building was conducted by a team of engineers headed by the city building
official, Engr. Jesus L. Reyna. Pertinent aspects of the latter's Report 5 dated October
18, 1989 stated, as follows:

The trial court, giving credence to the ocular inspection report to the effect that
subject school building had a "defective roofing structure," found that, while typhoon
"Saling" was accompanied by strong winds, the damage to private respondents'
houses "could have been avoided if the construction of the roof of [petitioner's]
building was not faulty." The dispositive portion of the lower court's decision 7 reads,
thus:

5. One of the factors that may have led to this calamitous event is
the formation of the building in the area and the general direction of
the wind. Situated in the peripheral lot is an almost U-shaped
formation of 4-storey building. Thus, with the strong winds having a
westerly direction, the general formation of the building becomes a
big funnel-like structure, the one situated along College Road,
receiving the heaviest impact of the strong winds. Hence, there are
portions of the roofing, those located on both ends of the building,
which remained intact after the storm.

WHEREFORE, in view of the foregoing, the Court renders

judgment (sic) in favor of the plaintiff (sic) and against the
defendants, (sic) ordering the latter to pay jointly and severally the
former as follows:
a) P117,116.00, as actual
damages,
plus
litigation
expenses;

6. Another factor and perhaps the most likely reason for the
dislodging of the roofing structural trusses is the improper
anchorage of the said trusses to the roof beams. The 1/2' diameter
steel bars embedded on the concrete roof beams which serve as
truss anchorage are not bolted nor nailed to the trusses. Still, there
are other steel bars which were not even bent to the trusses, thus,
those trusses are not anchored at all to the roof beams.

b) P1,000,000.00
damages;

as

moral

c) P100,000.00 as attorney's
fees;

It then recommended that "to avoid any further loss and damage to lives,
limbs and property of persons living in the vicinity," the fourth floor of subject
school building be declared as a "structural hazard."

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the
defendants (sic) did in a wanton fraudulent, reckless, oppressive or
malevolent manner.

In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage to
their house rendered the same uninhabitable, forcing them to stay temporarily in
others' houses. And so they sought to recover from petitioner P117,116.00, as actual
damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages
and P100,000.00, for and as attorney's fees; plus costs.

In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:

I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON
"SALING", AS AN ACT OF GOD, IS NOT "THE SOLE AND
ABSOLUTE REASON" FOR THE RIPPING-OFF OF THE SMALL
PORTION OF THE ROOF OF SOUTHEASTERN'S FOUR (4)
STOREY SCHOOL BUILDING.

In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any
portion thereof giving way; that it has not been remiss in its responsibility to see to it
that said school building, which houses school children, faculty members, and
employees, is "in tip-top condition"; and furthermore, typhoon "Saling" was "an act of
God and therefore beyond human control" such that petitioner cannot be answerable
for the damages wrought thereby, absent any negligence on its part.

II

52

THE TRIAL COURT ERRED IN HOLDING THAT "THE

CONSTRUCTION OF THE ROOF OF DEFENDANT'S SCHOOL
BUILDING WAS FAULTY" NOTWITHSTANDING THE ADMISSION
THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE
AS TYPHOON "SALING" WHICH IS THE DIRECT AND
PROXIMATE CAUSE OF THE INCIDENT.

when the case was already moot and academic by the sale of the
property to third party.
4. Whether or not the award of attorney's fees when the case was
already moot academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others
by typhoon "Saling" being an act of God.

III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL
DAMAGES AS WELL AS ATTORNEY'S FEES AND LITIGATION
EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY
HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS
DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN
INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND
ACADEMIC.

6. Whether or not the issuance of a writ of execution pending

appeal, ex-parte or without hearing, has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the damage on
the roof of the building of private respondents resulting from the impact of the falling
portions of the school building's roof ripped off by the strong winds of typhoon
"Saling", was, within legal contemplation, due to fortuitous event? If so, petitioner
cannot be held liable for the damages suffered by the private respondents. This
conclusion finds support in Article 1174 of Civil Code, which provides:

IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF
THE WRIT OF EXECUTION INSPITE OF THE PERFECTION OF
SOUTHEASTERN'S APPEAL WHEN THERE IS NO COMPELLING
REASON FOR THE ISSUANCE THERETO.

Art 1174. Except in cases expressly specified by the law, or when it

is otherwise declared by stipulation, or when the nature of the
obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which,
though foreseen, were inevitable.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial
court's disposition by reducing the award of moral damages from P1,000,000.00 to
P200,000.00. Hence, petitioner's resort to this Court, raising for resolution the issues
of:

The antecedent of fortuitous event or caso fortuito is found in the Partidas which
defines it as "an event which takes place by accident and could not have been
foreseen." 9 Escriche elaborates it as "an unexpected event or act of God which could
neither be foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that "[f]ortuitous
events may be produced by two general causes: (1) by nature, such as earthquakes,
storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed
invasion, attack by bandits, governmental prohibitions, robbery, etc." 11

1. Whether or not the award of actual damages [sic] to respondent

Dimaanos on the basis of speculation or conjecture, without proof
or receipts of actual damage, [sic] legally feasible or justified.
2. Whether or not the award of moral damages to respondent
Dimaanos, with the latter having suffered, actual damage has legal
basis.

In order that a fortuitous event may exempt a person from liability, it is necessary that
he be free from any previous negligence or misconduct by reason of which the loss
may have been occasioned. 12 An act of God cannot be invoked for the protection of a
person who has been guilty of gross negligence in not trying to forestall its possible
adverse consequences. When a person's negligence concurs with an act of God in
producing damage or injury to another, such person is not exempt from liability by
showing that the immediate or proximate cause of the damages or injury was a
fortuitous event. When the effect is found to be partly the result of the participation of
man whether it be from active intervention, or neglect, or failure to act the whole

3. Whether or not respondent Dimaanos who are no longer the

owner of the property, subject matter of the case, during its
pendency, has the right to pursue their complaint against petitioner

53

occurrence is hereby humanized, and removed from the rules applicable to acts of
God. 13

or caused accidentally by a stray bullet. The relationship of cause and effect must be
clearly shown.

In the case under consideration, the lower court accorded full credence to the finding
of the investigating team that subject school building's roofing had "no sufficient
anchorage to hold it in position especially when battered by strong winds." Based on
such finding, the trial court imputed negligence to petitioner and adjudged it liable for
damages to private respondents.

In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioner's school
building. Private respondents did not even show that the plans, specifications and
design of said school building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor did they
conclusively establish that the construction of such building was basically flawed. 21

After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trail court,
especially when affirmed by the appellate court, are binding and conclusive upon this
Court. 14 After a careful scrutiny of the records and the pleadings submitted by the
parties, we find exception to this rule and hold that the lower courts misappreciated
the evidence proffered.

On the other hand, petitioner elicited from one of the witnesses of private
respondents, city building official Jesus Reyna, that the original plans and design of
petitioner's school building were approved prior to its construction. Engr. Reyna
admitted that it was a legal requirement before the construction of any building to
obtain a permit from the city building official (city engineer, prior to the passage of the
Building Act of 1977). In like manner, after construction of the building, a certification
must be secured from the same official attesting to the readiness for occupancy of the
edifice. Having obtained both building permit and certificate of occupancy, these are,
at the very least, prima facie evidence of the regular and proper construction of
subject school building. 22

There is no question that a typhoon or storm is a fortuitous event, a natural

occurrence which may be foreseen but is unavoidable despite any amount of
foresight, diligence or care. 15 In order to be exempt from liability arising from any
adverse consequence engendered thereby, there should have been no human
participation amounting to a negligent act. 16 In other words; the person seeking
exoneration from liability must not be guilty of negligence. Negligence, as commonly
understood, is conduct which naturally or reasonably creates undue risk or harm to
others. It may be the failure to observe that degree of care, precaution, and vigilance
which the circumstances justify demand, 17 or the omission to do something which a
prudent and reasonable man, guided by considerations which ordinarily regulate the
conduct
of
human
affairs,
would
do. 18 From these premises, we proceed to determine whether petitioner was
negligent, such that if it were not, the damage caused to private respondents' house
could have been avoided?

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
"Saling", the same city official gave the go-signal for such repairs without any
deviation from the original design and subsequently, authorized the use of the
entire fourth floor of the same building. These only prove that subject building suffers
from no structural defect, contrary to the report that its "U-shaped" form was
"structurally defective." Having given his unqualified imprimatur, the city building
official is presumed to have properly performed his duties 23 in connection therewith.
In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building
were regularly undertaken. Petitioner was even willing to present its maintenance
supervisor to attest to the extent of such regular inspection but private respondents
agreed to dispense with his testimony and simply stipulated that it would be
corroborative of the vice president's narration.

At the outset, it bears emphasizing that a person claiming damages for the
negligence of another has the burden of proving the existence of fault or negligence
causative of his injury or loss. The facts constitutive of negligence must be
affirmatively established by competent evidence, 19 not merely by presumptions and
conclusions without basis in fact. Private respondents, in establishing the culpability
of petitioner, merely relied on the aforementioned report submitted by a team which
made an ocular inspection of petitioner's school building after the typhoon. As the
term imparts, an ocularinspection is one by means of actual sight or viewing. 20 What
is visual to the eye through, is not always reflective of the real cause behind. For
instance, one who hears a gunshot and then sees a wounded person, cannot always
definitely conclude that a third person shot the victim. It could have been self-inflicted

Moreover, the city building official, who has been in the city government service since
1974, admitted in open court that no complaint regarding any defect on the same
structure has ever been lodged before his office prior to the institution of the case at
bench. It is a matter of judicial notice that typhoons are common occurrences in this
country. If subject school building's roofing was not firmly anchored to its trusses,

54

Afiada vs Hisole, G.R. No. L-2075, November 29, 1949

Republic
of
the
SUPREME
Manila

obviously, it could not have withstood long years and several typhoons even stronger
than "Saling."
In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school building
in question and that typhoon "Saling" was the proximate cause of the damage
suffered by private respondents' house.

Philippines
COURT

EN BANC
G.R. No. L-2075

With this disposition on the pivotal issue, private respondents' claim for actual and
moral damages as well as attorney's fees must fail. 24 Petitioner cannot be made to
answer for a purely fortuitous event. 25 More so because no bad faith or willful act to
cause damage was alleged and proven to warrant moral damages.

November 29, 1949

MARGARITA
AFIALDA, plaintiff-appellant,
vs.
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.
Nicolas
P.
Nonato
Gellada, Mirasol and Ravena for appellees.

Private respondents failed to adduce adequate and competent proof of the pecuniary
loss they actually incurred.26 It is not enough that the damage be capable of proof but
must be actually proved with a reasonable degree of certainty, pointing out specific
facts that afford a basis for measuring whatever compensatory damages are
borne. 27 Private respondents merely submitted an estimated amount needed for the
repair of the roof their subject building. What is more, whether the "necessary repairs"
were caused ONLY by petitioner's alleged negligence in the maintenance of its school
building, or included the ordinary wear and tear of the house itself, is an essential
question that remains indeterminable.

for

appellant.

REYES, J.:
This is an action for damages arising from injury caused by an animal. The complaint
alleges that the now deceased, Loreto Afialda, was employed by the defendant
spouses as caretaker of their carabaos at a fixed compensation; that while tending
the animals he was, on March 21, 1947, gored by one of them and later died as a
consequence of his injuries; that the mishap was due neither to his own fault nor
to force majeure; and that plaintiff is his elder sister and heir depending upon him for
support.

The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by
the trial court is hereby nullified and set aside. Private respondents are ordered to
reimburse any amount or return to petitioner any property which they may have
received by virtue of the enforcement of said writ.

Before filing their answer, defendants moved for the dismissal of the complaint for
lack of a cause of action, and the motion having been granted by the lower court,
plaintiff has taken this appeal.
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which
reads:

WHEREFORE, the petition is GRANTED and the challenged Decision is

REVERSED. The complaint of private respondents in Civil Case No. 7314 before the
trial court a quo is ordered DISMISSED and the writ of execution issued on April 1,
1993 in said case is SET ASIDE. Accordingly, private respondents are ORDERED to
return to petitioner any amount or property received by them by virtue of said writ.
Costs against the private respondents.

The possessor of an animal, or the one who uses the same, is liable for any
damages it may cause, even if such animal should escape from him or stray
away.
This liability shall cease only in case, the damage should arise from force
majeure or from the fault of the person who may have suffered it.

SO ORDERED.

55

The question presented is whether the owner of the animal is liable when damage is
caused to its caretaker.

under the Workmen's Compensation Act, there being no allegation that, among other
things, defendant's business, whatever that might be, had a gross income of P20,000.
As already stated, defendant's liability is made to rest on article 1905 of the Civil
Code. but action under that article is not tenable for the reasons already stated. On
the other hand, if action is to be based on article 1902 of the Civil Code, it is essential
that there be fault or negligence on the part of the defendants as owners of the animal
that caused the damage. But the complaint contains no allegation on those points.

The lower court took the view that under the above-quoted provision of the Civil
Code, the owner of an animal is answerable only for damages caused to a stranger,
and that for damage caused to the caretaker of the animal the owner would be liable
only if he had been negligent or at fault under article 1902 of the same code. Claiming
that the lower court was in error, counsel for plaintiff contends that the article 1905
does not distinguish between damage caused to the caretaker and makes the owner
liable whether or not he has been negligent or at fault. For authority counsel cites the
following opinion which Manresa quotes from a decision of the Spanish Supreme
Court:

There being no reversible error in the order appealed from, the same is hereby
affirmed, but without costs in view of the financial situation of the appellant.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres,
JJ., concur.

El articulo 1905 del codigo Civil no consienta otra interpretacion que la que,
clara y evidentemente, se deriva de sus terminos literales, bastando, segun
el mismo, que un animal cause perjuicio para que nasca la responsibilidad
del dueno, aun no imputandose a este ninguna clase de culpa o negligencia,
habida,sin duda, cuenta por el lgislador de que tal concepto de dueno es
suficiente para que arrastre las consecuencias favorables o adversas de
esta clase de propiedad, salvo la exception en el mismo contenida. (12
Manresa, Commentaries on the Spanish CivilCode, 573.)

Ilocos Norte vs CA, G.R. No. 53401, November 6, 1989

Republic
of
the
SUPREME
Manila

This opinion, however, appears to have been rendered in a case where an animal
caused injury to a stranger or third person. It is therefore no authority for a case like
the present where the person injured was the caretaker of the animal. The distinction
is important. For the statute names the possessor or user of the animal as the person
liable for "any damages it may cause," and this for the obvious reason that the
possessor or user has the custody and control of the animal and is therefore the one
in a position to prevent it from causing damage.

Philippines
COURT

SECOND DIVISION
G.R. No. L-53401 November 6, 1989
THE
ILOCOS
NORTE
ELECTRIC
COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE
JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.

In the present case, the animal was in custody and under the control of the caretaker,
who was paid for his work as such. Obviously, it was the caretaker's business to try to
prevent the animal from causing injury or damage to anyone, including himself. And
being injured by the animal under those circumstances, was one of the risks of the
occupation which he had voluntarily assumed and for which he must take the
consequences.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries

(Vol. 12, p. 578), the death of an employee who was bitten by a feline which his
master had asked him to take to his establishment was by said tribunal declared to be
"a veritable accident of labor" which should come under the labor laws rather than
under article 1905 of the Civil Code. The present action, however, is not brought

PARAS, J.:

56

Sought to be reversed in this petition is the Decision * of the respondent Court of

Appeals' First Division, setting aside the judgment of the then Court of First Instance
(CFI) of Ilocos Norte, with the following dispositive portion:

From the evidence of plaintiffs it appears that in the evening of

June 28 until the early morning of June 29, 1967 a strong typhoon
by the code name "Gening" buffeted the province of Ilocos Norte,
bringing heavy rains and consequent flooding in its wake. Between
5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated
and when the floodwaters were beginning to recede the deceased
Isabel Lao Juan, fondly called Nana Belen, ventured out of the
house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street,
Laoag City, and proceeded northward towards the direction of the
Five Sisters Emporium, of which she was the owner and
proprietress, to look after the merchandise therein that might have
been damaged. Wading in waist-deep flood on Guerrero, the
deceased was followed by Aida Bulong, a Salesgirl at the Five
Sisters Grocery, also owned by the deceased, and by Linda Alonzo
Estavillo, a ticket seller at the YJ Cinema, which was partly owned
by the deceased. Aida and Linda walked side by side at a distance
of between 5 and 6 meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the water. The two
girls attempted to help, but fear dissuaded them from doing so
because on the spot where the deceased sank they saw an electric
wire dangling from a post and moving in snake-like fashion in the
water. Upon their shouts for help, Ernesto dela Cruz came out of
the house of Antonio Yabes. Ernesto tried to go to the deceased,
but at four meters away from her he turned back shouting that the
water was grounded. Aida and Linda prodded Ernesto to seek help
from Antonio Yabes at the YJ Cinema building which was four or
five blocks away.

WHEREFORE, the appealed judgment is hereby set aside and

another rendered in its stead whereby defendant is hereby
sentenced to pay plaintiffs actual damages of P30,229.45;
compensatory damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in
both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed claims
originate. The respondent Court of Appeals (CA) summarized the evidence of the
parties as follows:

When Antonio Yabes was informed by Ernesto that his mother-in

law had been electrocuted, he acted immediately. With his wife
Jane, together with Ernesto and one Joe Ros, Yabes passed by the
City Hall of Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to cut off the
electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house
were out indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body of the
deceased. The body was recovered about two meters from an
electric post.

57

In another place, at about 4:00 A.M. on that fateful date, June 29,
1967, Engineer Antonio Juan, Power Plant Engineer of the National
Power Corporation at the Laoag Diesel-Electric Plant, noticed

certain fluctuations in their electric meter which indicated such

abnormalities as grounded or short-circuited lines. Between 6:00
and 6:30 A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected lines.
Electric lines were hanging from the posts to the ground. Since he
could not see any INELCO lineman, he decided to go to the
INELCO Office at the Life Theatre on Rizal Street by way of
Guerrero. As he turned right at the intersection of Guerrero and
Rizal, he saw an electric wire about 30 meters long strung across
the street "and the other end was seeming to play with the current
of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the
INELCO still closed, and seeing no lineman therein, he returned to
the NPC Compound.

In defense and exculpation, defendant presented the testimonies of

its officers and employees, namely, Conrado Asis, electric engineer;
Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and
Julio Agcaoili, president-manager of INELCO Through the
testimonies of these witnesses, defendant sought to prove that on
and even before June 29, 1967 the electric service system of the
INELCO in the whole franchise area, including Area No. 9 which
covered the residence of Antonio Yabes at No. 18 Guerrero Street,
did not suffer from any defect that might constitute a hazard to life
and property. The service lines, devices and other INELCO
equipment in Area No. 9 had been newly-installed prior to the date
in question. As a public service operator and in line with its
business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and
damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with
the duty of making a round-the-clock check-up of the areas
respectively assigned to them.

At about 8:10 A.M., Engr. Juan went out of the compound again on
another inspection trip. Having learned of the death of Isabel Lao
Juan, he passed by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body had been
taken. Using the resuscitator which was a standard equipment in
his jeep and employing the skill he acquired from an in service
training on resuscitation, he tried to revive the deceased. His efforts
proved futile. Rigor mortis was setting in. On the left palm of the
deceased, Engr. Juan noticed a hollow wound. Proceeding to the
INELCO Office, he met two linemen on the way. He told them about
the grounded lines of the INELCO In the afternoon of the same day,
he went on a third inspection trip preparatory to the restoration of
power. The dangling wire he saw on Guerrero early in the morning
of June 29, 1967 was no longer there.

Defendant asserts that although a strong typhoon struck the

province of Ilocos Norte on June 29, 1967, putting to streets of
Laoag City under water, only a few known places in Laoag were
reported to have suffered damaged electric lines, namely, at the
southern approach of the Marcos Bridge which was washed away
and where the INELCO lines and posts collapsed; in the eastern
part near the residence of the late Governor Simeon Mandac; in the
far north near the defendant's power plant at the corner of Segundo
and Castro Streets, Laoag City and at the far northwest side, near
the premises of the Ilocos Norte National High School. Fabico
Abijero, testified that in the early morning before 6 o'clock on June
29, 1967 he passed by the intersection of Rizal and Guerrero
Streets to switch off the street lights in Area No. 9. He did not see
any cut or broken wires in or near the vicinity. What he saw were
many people fishing out the body of Isabel Lao Juan.

Many people came to the house at the corner of Guerrero and M.H.
del Pilar after learning that the deceased had been electrocuted.
Among the sympathizers was Dr. Jovencio Castro, Municipal
Health Officer of Sarrat, Ilocos Norte. Upon the request of the
relatives of the deceased, Dr. Castro examined the body at about
8:00 A.M. on June 29, 1967. The skin was grayish or, in medical
parlance, cyanotic, which indicated death by electrocution. On the
left palm, the doctor found an "electrically charged wound" (Exh. C1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the
base of the thumb on the left hand was a burned wound. (Exh. C-2,
pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro
stated the cause of' death as ,'circulatory shock electrocution" (Exh.
I; p. 103, Ibid.).

58

A witness in the person of Dr. Antonio Briones was presented by

the defense to show that the deceased could not have died of
electrocution Substantially, the testimony of the doctor is as follows:
Without an autopsy on the cadaver of the victim, no doctor, not
even a medicolegal expert, can speculate as to the real cause of
death. Cyanosis could not have been found in the body of the
deceased three hours after her death, because cyanosis which
means lack of oxygen circulating in the blood and rendering the

color of the skin purplish, appears only in a live person. The

presence of the elongated burn in the left palm of the deceased
(Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less
round in shape and with points of entry and exit. Had the deceased
held the lethal wire for a long time, the laceration in her palm would
have been bigger and the injury more massive. (CA Decision, pp.
18-21, Rollo)

3. The respondent Court of Appeals gravely

abused its discretion and erred in not applying
the legal principle of "assumption of risk" in the
present case to bar private respondents from
collecting damages from petitioner company.
4. That the respondent Court of Appeals gravely
erred and abused its discretion in completely
reversing the findings of fact of the trial court.

An action for damages in the aggregate amount of P250,000 was instituted by the
heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide,
Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense,
that the deceased could have died simply either by drowning or by electrocution due
to negligence attributable only to herself and not to petitioner. In this regard, it was
pointed out that the deceased, without petitioner's knowledge, caused the installation
of a burglar deterrent by connecting a wire from the main house to the iron gate and
fence of steel matting, thus, charging the latter with electric current whenever the
switch is on. Petitioner then conjectures that the switch to said burglar deterrent must
have been left on, hence, causing the deceased's electrocution when she tried to
open her gate that early morning of June 29, 1967. After due trial, the CFI found the
facts in favor of petitioner and dismissed the complaint but awarded to the latter
P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with
the CA which issued the controverted decision.

5. The findings of fact of the respondent Court of

Appeals are reversible under the recognized
exceptions.
6. The trial court did not err in awarding moral
damages and attorney's fees to defendant
corporation, now petitioner company.
7. Assuming arguendo that petitioner company
may be held liable from the death of the late
Isabel Lao Juan, the damages granted by
respondent Court of Appeals are improper and
exhorbitant. (Petitioners Memorandum, p. 133,
Rollo)

In this petition for review the petitioner assigns the following errors committed by the
respondent CA:

Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's
death; and (3) whether or not the respondent CA's substitution of the trial court's
factual findings for its own was proper.

1. The respondent Court of Appeals committed

grave abuse of discretion and error in considering
the purely hearsay alleged declarations of
Ernesto de la Cruz as part of theres gestae.

In considering the first issue, it is Our view that the same be resolved in the
affirmative. By a preponderance of evidence, private respondents were able to show
that the deceased died of electrocution, a conclusion which can be primarily derived
from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of
the former. Such wounds undoubtedly point to the fact that the deceased had
clutched a live wire of the petitioner. This was corroborated by the testimony of Dr.
Jovencio Castro who actually examined the body of the deceased a few hours after
the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN,
December 11, 1972) and that they were "electrically charged" (p. 102, TSN,
November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong
added that after the deceased screamed "Ay" and sank into the water, they tried to
render some help but were overcome with fear by the sight of an electric wire

2. The respondent Court of Appeals committed

grave abuse of discretion and error in holding
that the strong typhoon "Gening" which struck
Laoag City and Ilocos Norte on June 29, 1967
and the flood and deluge it brought in its wake
were not fortuitous events and did not exonerate
petitioner-company from liability for the death of
Isabel Lao Juan.

59

dangling from an electric post, moving in the water in a snake-like fashion ( supra).
The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of
the wounds as described by the witnesses who saw them can lead to no other
conclusion than that they were "burns," and there was nothing else in the street
where the victim was wading thru which could cause a burn except the dangling live
wire of defendant company" (CA Decision, p. 22, Rollo).

The statements made relative to the startling occurrence are admitted in evidence
precisely as an exception to the hearsay rule on the grounds of trustworthiness and
necessity. "Trustworthiness" because the statements are made instinctively (Wesley
vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous
utterances are more convincing than the testimony of the same person on the stand
(Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la
Cruz, was not presented to testify does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae.
Similarly, We considered part of the res gestae a conversation between two accused
immediately after commission of the crime as overheard by a prosecution witness
(People vs. Reyes, 82 Phil. 563).

But in order to escape liability, petitioner ventures into the theory that the deceased
was electrocuted, if such was really the case when she tried to open her steel gate,
which was electrically charged by an electric wire she herself caused to install to
serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm
was left on. But this is mere speculation, not backed up with evidence. As required by
the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1).
Nevertheless, the CA significantly noted that "during the trial, this theory was
abandoned" by the petitioner (CA Decision, p. 23, Rollo).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135,
Rollo), Ernesto de la Cruz was not an actual witness to the instant when the
deceased sank into the waist-deep water, he acted upon the call of help of Aida
Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the
sinking of the deceased. In fact the startling event had not yet ceased when Ernesto
de la Cruz entered the scene considering that the victim remained submerged. Under
such a circumstance, it is undeniable that a state of mind characterized by nervous
excitement had been triggered in Ernesto de la Cruz's being as anybody under the
same contingency could have experienced. As such, We cannot honestly exclude his
shouts that the water was grounded from the res gestae just because he did not
actually see the sinking of the deceased nor hear her scream "Ay."

Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl,
were with the deceased during that fateful morning of June 29,
1967. This Court has not been offered any sufficient reason to
discredit the testimonies of these two young ladies. They were one
in the affirmation that the deceased, while wading in the waist-deep
flood on Guerrero Street five or six meters ahead of them, suddenly
screamed "Ay" and quickly sank into the water. When they
approached the deceased to help, they were stopped by the sight
of an electric wire dangling from a post and moving in snake-like
fashion in the water. Ernesto dela Cruz also tried to approach the
deceased, but he turned back shouting that the water was
grounded. These bits of evidence carry much weight. For the
subject of the testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae. (CA
Decision, p. 21, Rollo)

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz.
While We concede to the submission that the statement must be one of facts rather
than opinion, We cannot agree to the proposition that the one made by him was a
mere opinion. On the contrary, his shout was a translation of an actuality as perceived
by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was
suppressed by the private respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party
to a case, it is necessary that the evidence alleged to be suppressed is available only
to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption
does not operate if the evidence in question is equally available to both parties
(StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the
records that petitioner could have called Ernesto de la Cruz to the witness stand.
This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when
she testified on cross examination:

For the admission of the res gestae in evidence, the following requisites must be
present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that
the statements were made before the declarant had time to contrive or devise; (3)
that the statements made must concern the occurrence in question and its
immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs.
Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in
view of the satisfaction of said requisites in the case at bar.

60

Q. And that Erning de la Cruz, how far did he reach from

the gate of the house?

disconnected electric lines of the defendant but he saw no INELCO

lineman. The INELCO Office at the Life theatre on Rizal Street
was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding of the lower court.
Conrado Asis, defendant's electrical engineer, testified that he
conducted a general inspection of the franchise area of the
INELCO only on June 30, 1967, the day following the typhoon. The
reason he gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he
arrived at his office at 8:00 A.M. onJune 30 and after briefing his
men on what to do they started out. (p. 338, lbid) One or two days
after the typhoon, the INELCO people heard "rumors that someone
was electrocuted" so he sent one of his men to the place but his
man reported back that there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant, corroborated Engr.
Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr.
Juan came to the INELCO plant and asked the INELCO people to
inspect their lines. He went with Engr. Juan and their inspection
lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28,
1975) Fabico Abijero lineman of defendant, testified that at about
6:00 on June 29, 1967 the typhoon ceased. At that time, he was at
the main building of the Divine Word College of Laoag where he
had taken his family for refuge. (pp. 510-511, Ibid.)

A. Well, you can ask that matter from him sir because he
is here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of
Ernesto de la Cruz which, if truly adverse to private respondent, would have helped
its case. However, due to reasons known only to petitioner, the opportunity was not
taken.
Coming now to the second issue, We tip the scales in the private respondents' favor.
The respondent CA acted correctly in disposing the argument that petitioner be
exonerated from liability since typhoons and floods are fortuitous events. While it is
true that typhoons and floods are considered Acts of God for which no person may be
held responsible, it was not said eventuality which directly caused the victim's death.
It was through the intervention of petitioner's negligence that death took place. We
subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the
electrocution and consequent death of the late Isabel Lao Juan,
defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence
and to negate the charge of negligence. The witnesses testified in a
general way about their duties and the measures which
defendant usually adopts to prevent hazards to life and limb. From
these testimonies, the lower court found "that the electric lines and
other equipment of defendant corporation were properly maintained
by a well-trained team of lineman, technicians and engineers
working around the clock to insure that these equipments were in
excellent condition at all times." (P. 40, Record on Appeal) The
finding of the lower court, however, was based on what the
defendant's employees were supposed to do, not on what they
actually did or failed to do on the date in question, and not on the
occasion of theemergency situation brought about by the typhoon.

In times of calamities such as the one which occurred in Laoag City

on the night of June 28 until the early hours of June 29, 1967,
extraordinary diligence requires a supplier of electricity to be
inconstant vigil to prevent or avoid any probable incident that might
imperil life or limb. The evidence does not show that defendant did
that. On the contrary, evidence discloses that there were no men
(linemen or otherwise) policing the area, nor even manning its
office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it
that no harm is done to the general public"... considering that electricity is an agency,
subtle and deadly, the measure of care required of electric companies must be
commensurate with or proportionate to the danger. The duty of exercising this high
degree of diligence and care extends to every place where persons have a right to
be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having
been shown, it may not now absolve itself from liability by arguing that the victim's
death was solely due to a fortuitous event. "When an act of God combines or concurs
with the negligence of the defendant to produce an injury, the defendant is liable if the

The lower court made a mistake in assuming that defendant's

employees worked around the clock during the occurrence of the
typhoon on the night of June 28 and until the early morning of June
29, 1967, Engr. Antonio Juan of the National Power Corporation
affirmed that when he first set out on an inspection trip between
6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and

61

injury would not have resulted but for his own negligent conduct or omission" (38 Am.
Jur., p. 649).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt
efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The
fact is that when Engineer Antonio Juan of the National Power Corporation set out in
the early morning of June 29, 1967 on an inspection tour, he saw grounded and
disconnected lines hanging from posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The
foregoing shows that petitioner's duty to exercise extraordinary diligence under the
circumstance was not observed, confirming the negligence of petitioner. To aggravate
matters, the CA found:

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no
application in the case at bar. It is imperative to note the surrounding circumstances
which impelled the deceased to leave the comforts of a roof and brave the subsiding
typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and
Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the
former two, were on their way to the latter's grocery store "to see to it that the goods
were not flooded." As such, shall We punish her for exercising her right to protect her
property from the floods by imputing upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not. For it has been held that a person
is excused from the force of the rule, that when he voluntarily assents to a known
danger he must abide by the consequences, if an emergency is found to exist or if the
life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when
he seeks to rescue his endangered property (Harper and James, "The Law of Torts."
Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the
deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place
where she had a right to be without regard to petitioner's consent as she was on her
way to protect her merchandise. Hence, private respondents, as heirs, may not be
barred from recovering damages as a result of the death caused by petitioner's
negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing
the trial court's findings of fact, pointing to the testimonies of three of its employees its
electrical engineer, collector-inspector, lineman, and president-manager to the effect
that it had exercised the degree of diligence required of it in keeping its electric lines
free from defects that may imperil life and limb. Likewise, the said employees of
petitioner categorically disowned the fatal wires as they appear in two photographs
taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said
wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower court ... was based on
what the defendant's employees were supposed to do, not on what they actually did
or failed to do on the date in question, and not on the occasion of the emergency
situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by
the CA, which We have already reiterated above, petitioner was in fact negligent. In a
like manner, petitioner's denial of ownership of the several wires cannot stand the
logical conclusion reached by the CA when it held that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to no other conclusion than that
they were 'burns', and there was nothing else in the street where the victim was
wading thru which could cause a burn except the dangling live wire of defendant
company" (supra).

. . .even before June 28 the people in Laoag were already alerted

about the impending typhoon, through radio announcements. Even
the fire department of the city announced the coming of the big
flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO
irregularities in the flow of electric current were noted because
"amperes of the switch volts were moving". And yet, despite these
danger signals, INELCO had to wait for Engr. Juan to request that
defendant's switch be cut off but the harm was done. Asked why
the delay, Loreto Abijero answered that he "was not the machine
tender of the electric plant to switch off the current." (pp. 467468, Ibid.) How very characteristic of gross inefficiency! (CA
Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the
trial court's findings but tediously considered the factual circumstances at hand
pursuant to its power to review questions of fact raised from the decision of the
Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in
private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the
victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory
damages, computed in accordance with the formula set in the Villa-Rey Transit case
(31 SCRA 511) with the base of P15,000 as average annual income of the deceased;
P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for
the award of P12,000 as compensation for the victim's death, We affirm the
respondent CA's award for damages and attorney's fees. Pusuant to recent
jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA
381), We increase the said award of P12,000 to P30,000, thus, increasing the total
actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was
properly made by the respondent CA, the charge of malice and bad faith on the part

62

of respondents in instituting his case being a mere product of wishful thinking and
speculation. Award of damages and attorney's fees is unwarranted where the action
was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs.
CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it
is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche
G. Sunga, then a college freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the back of the door at
the rear end of the vehicle.

WHEREFORE, the questioned decision of the respondent, except for the slight
modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As
a result, Sunga was injured. She sustained a fracture of the "distal third of the left
tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the
fracture, long leg circular casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to September 7, 1989. Her
attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and would have to ambulate in crutches
during said period.

SO ORDERED.

Calalas vs CA, G.R. No. 122039, May 31, 2000

Republic
SUPREME
Manila

of

the

Philippines
COURT

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.

SECOND DIVISION

The lower court rendered judgment against Salva as third-party defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who was
responsible for the accident. It took cognizance of another case (Civil Case No.
3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37
of the same court held Salva and his driver Verena jointly liable to Calalas for the
damage to his jeepney.

G.R. No. 122039 May 31, 2000

VICENTE
vs.
COURT OF APPEALS,
SALVA, respondents.

CALALAS, petitioner,
ELIZA

JUJEURCHE

SUNGA

and

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the
ground that Sunga's cause of action was based on a contract of carriage, not quasidelict, and that the common carrier failed to exercise the diligence required under the
Civil Code. The appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision
reads:

FRANCISCO

MENDOZA, J.:

WHEREFORE, the decision appealed from is hereby REVERSED

and SET ASIDE, and another one is entered ordering defendantappellee Vicente Calalas to pay plaintiff-appellant:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch
36, Dumaguete City, and awarding damages instead to private respondent Eliza
Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

The facts, as found by the Court of Appeals, are as follows:

63

(3) P10,000.00 as attorney's fees; and

where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual
relation between the parties, it is the parties themselves who create the obligation,
and the function of the law is merely to regulate the relation thus created. Insofar as
contracts of carriage are concerned, some aspects regulated by the Civil Code are
those respecting the diligence required of common carriers with regard to the safety
of passengers as well as the presumption of negligence in cases of death or injury to
passengers. It provides:

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.
SO ORDERED.

Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability
and that to rule otherwise would be to make the common carrier an insurer of the
safety of its passengers. He contends that the bumping of the jeepney by the truck
owned by Salva was a caso fortuito. Petitioner further assails the award of moral
damages to Sunga on the ground that it is not supported by evidence.

Such extraordinary diligence in the vigilance over the goods is

further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and
7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the
driver and the owner of the truck liable for quasi-delict ignores the fact that she was
never a party to that case and, therefore, the principle ofres judicata does not apply.

Art. 1755. A common carrier is bound to carry the passengers

safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all
the circumstances.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The
issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for
quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the
issue in this case is whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its
source the negligence of the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the performance of a contractual
obligation.

Art. 1756. In case of death of or injuries to passengers, common

carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence
at once arose, and it became the duty of petitioner to prove that he had to observe
extraordinary diligence in the care of his passengers.

Consequently, in quasi-delict, the negligence or fault should be clearly established

because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to his
destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil Code
provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common
carrier the burden of proof.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard
for all the circumstances" as required by Art. 1755? We do not think so. Several
factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear
portion being exposed about two meters from the broad shoulders of the highway,
and facing the middle of the highway in a diagonal angle. This is a violation of the
R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which
provides:

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable for the damage to petitioner's jeepney,
should be binding on Sunga. It is immaterial that the proximate cause of the collision
between the jeepney and the truck was the negligence of the truck driver. The
doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions
involving breach of contract. The doctrine is a device for imputing liability to a person

64

Sec. 54. Obstruction of Traffic. No person shall drive his motor

vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.

Plaintiff-appellant at the time of the accident was a first-year college

student in that school year 1989-1990 at the Silliman University,
majoring in Physical Education. Because of the injury, she was not
able to enroll in the second semester of that school year. She
testified that she had no more intention of continuing with her
schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which
has a defect already."

Second, it is undisputed that petitioner's driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It
provides:

Plaintiff-appellant likewise testified that even while she was under

confinement, she cried in pain because of her injured left foot. As a
result of her injury, the Orthopedic Surgeon also certified that she
has "residual bowing of the fracture side." She likewise decided not
to further pursue Physical Education as her major subject, because
"my left leg . . . has a defect already."

Exceeding registered capacity. No person operating any motor

vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater
than that to which the other passengers were exposed. Therefore, not only was
petitioner unable to overcome the presumption of negligence imposed on him for the
injury sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral damages in the sum
of P50,000.00, which is fair, just and reasonable.

We find it hard to give serious thought to petitioner's contention that Sunga's taking
an "extension seat" amounted to an implied assumption of risk. It is akin to arguing
that the injuries to the many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater risk of drowning
by boarding an overloaded ferry. This is also true of petitioner's contention that the
jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen,
was inevitable.3 This requires that the following requirements be present: (a) the
cause of the breach is independent of the debtor's will; (b) the event is unforeseeable
or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill
his obligation in a normal manner, and (d) the debtor did not take part in causing the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its
body protruding two meters into the highway.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under Art.
2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases
in which the mishap results in the death of a passenger, as provided in Art. 1764, in
relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no
factual finding by the appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga's contention that petitioner's
admission in open court that the driver of the jeepney failed to assist her in going to a
nearby hospital cannot be construed as an admission of bad faith. The fact that it was
the driver of the Isuzu truck who took her to the hospital does not imply that petitioner
was utterly indifferent to the plight of his injured passenger. If at all, it is merely
implied recognition by Verena that he was the one at fault for the accident.

Finally, petitioner challenges the award of moral damages alleging that it is excessive
and without basis in law. We find this contention well taken.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that
the award of moral damages is DELETED.

In awarding moral damages, the Court of Appeals stated:

SO ORDERED.

65

Nikko Hotel vs Robert Reyes, G.R. No. 154259, February 25, 2005

actual damages, One Million Pesos moral and/or exemplary damages and Two
Hundred Thousand Pesos attorneys fees.[17]

SECOND DIVISION
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but
not under the ignominious circumstance painted by the latter. Ms. Lim narrated that
she was the Hotels Executive Secretary for the past twenty (20) years. [18] One of her
functions included organizing the birthday party of the hotels former General
Manager, Mr. Tsuruoka.[19] The year 1994 was no different. For Mr. Tsuruokas party,
Ms. Lim generated an exclusive guest list and extended invitations accordingly.[20] The
guest list was limited to approximately sixty (60) of Mr. Tsuruokas closest friends and
some hotel employees and that Mr. Reyes was not one of those invited. [21] At the
party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink. [22] Mindful of
Mr. Tsuruokas wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller,
the captain waiter, to inquire as to the presence of Mr. Reyes who was not invited.
[23]
Mr. Miller replied that he saw Mr. Reyes with the group of Dr. Filart. [24] As Dr. Filart
was engaged in conversation with another guest and as Ms. Lim did not want to
interrupt, she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told
her that Dr. Filart did not invite Mr. Reyes. [25] Ms. Lim then requested Ms. Fruto to tell
Mr. Reyes to leave the party as he was not invited.[26] Mr. Reyes, however, lingered
prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want to
leave.[27] When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain
Batung whom she later approached.[28] Believing that Captain Batung and Mr. Reyes
knew each other, Ms. Lim requested from him the same favor from Ms. Fruto, i.e., for
Captain Batung to tell Mr. Reyes to leave the party as he was not invited. [29] Still, Mr.
Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to
speak to him herself as there were no other guests in the immediate vicinity.
[30]
However, as Mr. Reyes was already helping himself to the food, she decided to
wait.[31] When Mr. Reyes went to a corner and started to eat, Ms. Lim approached him
and said: alam ninyo, hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo
ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na kayo.
[32]
She then turned around trusting that Mr. Reyes would show enough decency to
leave, but to her surprise, he began screaming and making a big scene, and even
threatened to dump food on her.[33]

[G.R. No. 154259. February 28, 2005]

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO
REYES, a.k.a. AMAY BISAYA, respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden
(Hotel Nikko)[1] and Ruby Lim assail the Decision[2] of the Court of Appeals dated 26
November 2001 reversing the Decision[3] of the Regional Trial Court (RTC) of Quezon
City, Branch 104, as well as the Resolution [4] of the Court of Appeals dated 09 July
2002 which denied petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under
the human relations provisions of the New Civil Code. Plaintiff thereat (respondent
herein) Roberto Reyes, more popularly known by the screen name Amay Bisaya,
alleged that at around 6:00 oclock in the evening of 13 October 1994, while he was
having coffee at the lobby of Hotel Nikko,[5] he was spotted by his friend of several
years, Dr. Violeta Filart, who then approached him.[6] Mrs. Filart invited him to join her
in a party at the hotels penthouse in celebration of the natal day of the hotels
manager, Mr. Masakazu Tsuruoka.[7] Mr. Reyes asked if she could vouch for him for
which she replied: of course.[8] Mr. Reyes then went up with the party of Dr. Filart
carrying the basket of fruits which was the latters present for the celebrant. [9] At the
penthouse, they first had their picture taken with the celebrant after which Mr. Reyes
sat with the party of Dr. Filart. [10] After a couple of hours, when the buffet dinner was
ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and
embarrassment, he was stopped by petitioner herein, Ruby Lim, who claimed to
speak for Hotel Nikko as Executive Secretary thereof.[11] In a loud voice and within the
presence and hearing of the other guests who were making a queue at the buffet
table, Ruby Lim told him to leave the party (huwag ka nang kumain, hindi ka
imbitado, bumaba ka na lang).[12] Mr. Reyes tried to explain that he was invited by Dr.
Filart.[13] Dr. Filart, who was within hearing distance, however, completely ignored him
thus adding to his shame and humiliation.[14] Not long after, while he was still
recovering from the traumatic experience, a Makati policeman approached and asked
him to step out of the hotel. [15] Like a common criminal, he was escorted out of the
party by the policeman.[16] Claiming damages, Mr. Reyes asked for One Million Pesos

Dr. Violeta Filart, the third defendant in the complaint before the lower court,
also gave her version of the story to the effect that she never invited Mr. Reyes to the
party.[34] According to her, it was Mr. Reyes who volunteered to carry the basket of
fruits intended for the celebrant as he was likewise going to take the elevator, not to
the penthouse but to Altitude 49.[35] When they reached the penthouse, she reminded
Mr. Reyes to go down as he was not properly dressed and was not invited. [36] All the
while, she thought that Mr. Reyes already left the place, but she later saw him at the
bar talking to Col. Batung.[37] Then there was a commotion and she saw Mr. Reyes

66

shouting.[38] She ignored Mr. Reyes.[39] She was embarrassed and did not want the
celebrant to think that she invited him.[40]

...
The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or
lack of consideration of one person, which calls not only protection of human dignity but
respect of such dignity. Under Article 20 of the Civil Code, every person who violates this
duty becomes liable for damages, especially if said acts were attended by malice or bad faith.
Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest
purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty to
some motive or interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA, et
al., 309 SCRA 603).[44]

After trial on the merits, the court a quo dismissed the complaint,[41] giving more
credence to the testimony of Ms. Lim that she was discreet in asking Mr. Reyes to
leave the party. The trial court likewise ratiocinated that Mr. Reyes assumed the risk
of being thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the
birthday celebrant. He assumed the risk of being asked to leave for attending a party to which
he was not invited by the host. Damages are pecuniary consequences which the law imposes
for the breach of some duty or the violation of some right. Thus, no recovery can be had
against defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v.
Court of Appeals, 212 SCRA 436). He knew that it was not the party of defendant Violeta
Filart even if she allowed him to join her and took responsibility for his attendance at the
party. His action against defendants Nikko Hotel and Ruby Lim must therefore fail. [42]

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and
Dr. Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary damages in
the amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the
amount of Two Hundred Thousand Pesos (P200,000); and (3) attorneys fees in the
amount of Ten Thousand Pesos (P10,000).[45] On motion for reconsideration, the
Court of Appeals affirmed its earlier decision as the argument raised in the motion
had been amply discussed and passed upon in the decision sought to be
reconsidered.[46]

On appeal, the Court of Appeals reversed the ruling of the trial court as it found
more commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to
leave in a loud voice within hearing distance of several guests:

Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the
Court of Appeals seriously erred in

In putting appellant in a very embarrassing situation, telling him that he should not finish his
food and to leave the place within the hearing distance of other guests is an act which is
contrary to morals, good customs . . ., for which appellees should compensate the appellant for
the damage suffered by the latter as a consequence therefore (Art. 21, New Civil Code). The
liability arises from the acts which are in themselves legal or not prohibited, but contrary to
morals or good customs. Conversely, even in the exercise of a formal right, [one] cannot with
impunity intentionally cause damage to another in a manner contrary to morals or good
customs.[43]

I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING
THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching
several people to inquire into the presence of Mr. Reyes exposed the latter to ridicule
and was uncalled for as she should have approached Dr. Filart first and both of them
should have talked to Mr. Reyes in private:

HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE
WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA
COULD NOT HAVE SUFFERED SUCH HUMILIATION, WERE IT NOT FOR DR.
FILARTS INVITATION

Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was
to approach appellee Mrs. Filart and together they should have told appellant Reyes in private
that the latter should leave the party as the celebrant only wanted close friends around. It is
necessary that Mrs. Filart be the one to approach appellant because it was she who invited
appellant in that occasion. Were it not for Mrs. Filarts invitation, appellant could not have
suffered such humiliation. For that, appellee Filart is equally liable.

III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS
THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY
BISAYA

67

IV.

distance of the other guests. Both courts, however, were in agreement that it was Dr.
Filarts invitation that brought Mr. Reyes to the party.

IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS

POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE
WAS PRESENTED IN THIS REGARD

The consequential question then is: Which version is credible?

From an in depth review of the evidence, we find more credible the lower courts
findings of fact.

V.

First, let us put things in the proper perspective.

IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS

BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS

We are dealing with a formal party in a posh, five-star hotel, [53] for-invitation-only,
thrown for the hotels former Manager, a Japanese national. Then came a person who
was clearly uninvited (by the celebrant)[54] and who could not just disappear into the
crowd as his face is known by many, being an actor. While he was already spotted by
the organizer of the party, Ms. Lim, the very person who generated the guest list, it
did not yet appear that the celebrant was aware of his presence. Ms. Lim, mindful of
the celebrants instruction to keep the party intimate, would naturally want to get rid of
the gate-crasher in the most hush-hush manner in order not to call attention to a glitch
in an otherwise seamless affair and, in the process, risk the displeasure of the
celebrant, her former boss. To unnecessarily call attention to the presence of Mr.
Reyes would certainly reflect badly on Ms. Lims ability to follow the instructions of the
celebrant to invite only his close friends and some of the hotels personnel. Mr. Reyes,
upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered
him to leave, could not offer any satisfactory explanation why Ms. Lim would do that
and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on crossexamination, had unwittingly sealed his fate by admitting that when Ms. Lim talked to
him, she was very close. Close enough for him to kiss:

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti
non fit injuria, they cannot be made liable for damages as respondent Reyes
assumed the risk of being asked to leave (and being embarrassed and humiliated in
the process) as he was a gate-crasher.
The doctrine of volenti non fit injuria (to which a person assents is not esteemed
in law as injury[47]) refers to self-inflicted injury[48] or to the consent to injury[49] which
precludes the recovery of damages by one who has knowingly and voluntarily
exposed himself to danger, even if he is not negligent in doing so. [50] As formulated by
petitioners, however, this doctrine does not find application to the case at bar because
even if respondent Reyes assumed the risk of being asked to leave the party,
petitioners, under Articles 19 and 21 of the New Civil Code, were still under obligation
to treat him fairly in order not to expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking
Roberto Reyes, a.k.a. Amay Bisaya, to leave the party where he was not invited by
the celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil
Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as
her employer, is solidarily liable with her.

Q: And, Mr. Reyes, you testified that Miss Lim approached you while you
were at the buffet table? How close was she when she approached
you?
A: Very close because we nearly kissed each other.

As the trial court and the appellate court reached divergent and irreconcilable
conclusions concerning the same facts and evidence of the case, this Court is left
without choice but to use its latent power to review such findings of facts. Indeed, the
general rule is that we are not a trier of facts as our jurisdiction is limited to reviewing
and revising errors of law.[51] One of the exceptions to this general rule, however,
obtains herein as the findings of the Court of Appeals are contrary to those of the trial
court.[52] The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to
leave the party as she talked to him politely and discreetly. The appellate court, on the
other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed
Mr. Reyes by telling him not to finish his food and to leave the place within hearing

Q: And yet, she shouted for you to go down? She was that close and she
shouted?
A: Yes. She said, wag kang kumain, hindi ka imbitado dito, bumaba ka na
lang.
Q: So, you are testifying that she did this in a loud voice?

68

[60]

The object of this article, therefore, is to set certain standards which must be
observed not only in the exercise of ones rights but also in the performance of ones
duties.[61] These standards are the following: act with justice, give everyone his due
and observe honesty and good faith.[62] Its antithesis, necessarily, is any act evincing
bad faith or intent to injure. Its elements are the following: (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring
another.[63] When Article 19 is violated, an action for damages is proper under Articles
20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of
law[64] which does not obtain herein as Ms. Lim was perfectly within her right to ask
Mr. Reyes to leave. Article 21, on the other hand, states:

...
A: Yes. If it is not loud, it will not be heard by many.[55]
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes
and expose him to ridicule and shame, it is highly unlikely that she would shout at him
from a very close distance. Ms. Lim having been in the hotel business for twenty
years wherein being polite and discreet are virtues to be emulated, the testimony of
Mr. Reyes that she acted to the contrary does not inspire belief and is indeed
incredible. Thus, the lower court was correct in observing that

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.

Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave
the party was made such that they nearly kissed each other, the request was meant to be heard
by him only and there could have been no intention on her part to cause embarrassment to
him. It was plaintiffs reaction to the request that must have made the other guests aware of
what transpired between them. . .

Article 21[65] refers to acts contra bonus mores and has the following elements: (1)
There is an act which is legal; (2) but which is contrary to morals, good custom, public
order, or public policy; and (3) it is done with intent to injure.[66]

Had plaintiff simply left the party as requested, there was no need for the police to take him
out.[56]

A common theme runs through Articles 19 and 21, [67] and that is, the act
complained of must be intentional.[68]

Moreover, another problem with Mr. Reyess version of the story is that it is
unsupported. It is a basic rule in civil cases that he who alleges proves. Mr. Reyes,
however, had not presented any witness to back his story up. All his witnesses Danny
Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart who
invited him to the party.[57]

As applied to herein case and as earlier discussed, Mr. Reyes has not shown
that Ms. Lim was driven by animosity against him. These two people did not know
each other personally before the evening of 13 October 1994, thus, Mr. Reyes had
nothing to offer for an explanation for Ms. Lims alleged abusive conduct except the
statement that Ms. Lim, being single at 44 years old, had a very strong bias and
prejudice against (Mr. Reyes) possibly influenced by her associates in her work at the
hotel with foreign businessmen.[69] The lameness of this argument need not be
belabored. Suffice it to say that a complaint based on Articles 19 and 21 of the Civil
Code must necessarily fail if it has nothing to recommend it but innuendos and
conjectures.

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to
which he was not invited, cannot be made liable to pay for damages under Articles 19
and 21 of the Civil Code. Necessarily, neither can her employer, Hotel Nikko, be held
liable as its liability springs from that of its employee.[58]
Article 19, known to contain what is commonly referred to as the principle of
abuse of rights,[59] is not a panacea for all human hurts and social grievances. Article
19 states:

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was
likewise acceptable and humane under the circumstances. In this regard, we cannot
put our imprimatur on the appellate courts declaration that Ms. Lims act of personally
approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited Mr.
Reyes) gave rise to a cause of action predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but
respect of such dignity.[70] Without proof of any ill-motive on her part, Ms. Lims act of
by-passing Mrs. Filart cannot amount to abusive conduct especially because she did
inquire from Mrs. Filarts companion who told her that Mrs. Filart did not invite Mr.

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.
Elsewhere, we explained that when a right is exercised in a manner which does not
conform with the norms enshrined in Article 19 and results in damage to another, a
legal wrong is thereby committed for which the wrongdoer must be responsible.

69

Pantaleon vs American Express, G.R. No. 4174269, August 25,

2010
SECOND DIVISION
POLO S. PANTALEON, G.R. No. 174269

Reyes.[71] If at all, Ms. Lim is guilty only of bad judgment which, if done with good
intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim
and Hotel Nikko be made answerable for exemplary damages[72] especially for the
reason stated by the Court of Appeals. The Court of Appeals held

Petitioner,
Present:

Not a few of the rich people treat the poor with contempt because of the latters lowly station in
life. This has to be limited somewhere. In a democracy, such a limit must be established.
Social equality is not sought by the legal provisions under consideration, but due regard for
decency and propriety (Code Commission, pp. 33-34). And by way of example or correction
for public good and to avert further commission of such acts, exemplary damages should be
imposed upon appellees.[73]

CARPIO MORALES, J.,*

Acting Chairperson,
- versus - TINGA,

The fundamental fallacy in the above-quoted findings is that it runs counter with the
very facts of the case and the evidence on hand. It is not disputed that at the time of
the incident in question, Mr. Reyes was an actor of long standing; a co-host of a radio
program over DZRH; a Board Member of the Music Singer Composer (MUSICO)
chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime
Watch; and 1992 official candidate of the KBL Party for Governor of Bohol; and an
awardee of a number of humanitarian organizations of the Philippines.[74] During his
direct examination on rebuttal, Mr. Reyes stressed that he had income[75] and
nowhere did he say otherwise. On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim.
Consequently, the conclusion reached by the appellate court cannot withstand
scrutiny as it is without basis.

AMERICAN EXPRESS

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage
which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate right
done within the bounds of propriety and good faith, must be his to bear alone.

x---------------------------------------------------------------------------x

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko
Hotel Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26
November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104,
dated 26 April 1999 is hereby AFFIRMED. No costs.

DECISION

VELASCO,
LEONARDO-DE CASTRO,** and
BRION, JJ.

INTERNATIONAL, INC., Promulgated:

Respondent.
May 8, 2009

TINGA, J.:

SO ORDERED.

The petitioner, lawyer Polo Pantaleon, his wife Julialinda, daughter Anna
Regina and son Adrian Roberto, joined an escorted tour of Western

70

Europe organized by Trafalgar Tours of Europe, Ltd., in October of 1991.

The tour group arrived in Amsterdam in the afternoon of 25 October 1991,
the second to the last day of the tour. As the group had arrived late in the
city, they failed to engage in any sight-seeing. Instead, it was agreed upon
that they would start early the next day to see the entire city before ending
the tour.

At around 10:00 a.m, or around 45 minutes after Pantaleon had

presented his AmexCard, and 30 minutes after the tour group was
supposed to have left the store, Coster decided to release the items even
without respondents approval of the purchase. The spouses Pantaleon
returned to the bus. It is alleged that their offers of apology were met by
their tourmates with stony silence. [4] The tour groups visible irritation was
aggravated when the tour guide announced that the city tour
of Amsterdam was to be canceled due to lack of remaining time, as they
had to catch a 3:00 p.m. ferry at Calais, Belgium to London.[5] Mrs.
Pantaleon ended up weeping, while her husband had to take a tranquilizer
to calm his nerves.

The following day, the last day of the tour, the group arrived at the
Coster Diamond House in Amsterdam around 10 minutes before 9:00
a.m. The group had agreed that the visit to Coster should end by 9:30
a.m. to allow enough time to take in a guided city tour of Amsterdam. The
group was ushered into Coster shortly before 9:00 a.m., and listened to a
lecture on the art of diamond polishing that lasted for around ten minutes.
[1]
Afterwards, the group was led to the stores showroom to allow them to
select items for purchase. Mrs. Pantaleon had already planned to purchase
even before the tour began a 2.5 karat diamond brilliant cut, and she
found a diamond close enough in approximation that she decided to buy.
[2]
Mrs. Pantaleon also selected for purchase a pendant and a chain, [3] all of
which totaled U.S. $13,826.00.

It later emerged that Pantaleons purchase was first transmitted for

approval to respondents Amsterdam office at 9:20 a.m., Amsterdam time,
then referred to respondents Manila office at 9:33 a.m, then finally
approved at 10:19 a.m., Amsterdam time.[6] The Approval Code was
transmitted to respondents Amsterdam office at 10:38 a.m., several
minutes after petitioner had already left Coster, and 78 minutes from the
time the purchases were electronically transmitted by the jewelry store to
respondents Amsterdam office.

To pay for these purchases, Pantaleon presented his American

Express credit card together with his passport to the Coster sales clerk.
This occurred at around 9:15 a.m., or 15 minutes before the tour group was
slated to depart from the store. The sales clerk took the cards imprint, and
asked Pantaleon to sign the charge slip. The charge purchase was then
referred electronically to respondents Amsterdam office at 9:20 a.m.

After the star-crossed tour had ended, the Pantaleon family proceeded to
the United States before returning to Manila on 12 November 1992. While
in the United States, Pantaleon continued to use his AmEx card, several
times without hassle or delay, but with two other incidents similar to
the Amsterdam brouhaha. On 30 October 1991, Pantaleon purchased golf
equipment amounting to US $1,475.00 using his AmEx card, but he
cancelled his credit card purchase and borrowed money instead from a
friend, after more than 30 minutes had transpired without the purchase
having been approved. On 3 November 1991, Pantaleon used the card to
purchase childrens shoes worth $87.00 at a store in Boston, and it took 20
minutes before this transaction was approved by respondent.

Ten minutes later, the store clerk informed Pantaleon that his
AmexCard had not yet been approved. His son, who had already boarded
the tour bus, soon returned to Coster and informed the other members of
the Pantaleon family that the entire tour group was waiting for them. As it
was already 9:40 a.m., and he was already worried about further
inconveniencing the tour group, Pantaleon asked the store clerk to cancel
the sale. The store manager though asked plaintiff to wait a few more
minutes. After 15 minutes, the store manager informed Pantaleon that
respondent had demanded bank references. Pantaleon supplied the names
of his depositary banks, then instructed his daughter to return to the bus
and apologize to the tour group for the delay.

On 4 March 1992, after coming back to Manila, Pantaleon sent a

letter[7] through counsel to the respondent, demanding an apology for the

71

inconvenience, humiliation and embarrassment he and his family thereby

suffered for respondents refusal to provide credit authorization for the
aforementioned purchases.[8] In response, respondent sent a letter
dated 24 March 1992,[9] stating among others that the delay in authorizing
the purchase from Coster was attributable to the circumstance that the
charged purchase of US $13,826.00 was out of the usual charge purchase
pattern established.[10] Since respondent refused to accede to Pantaleons
demand for an apology, the aggrieved cardholder instituted an action for
damages with the Regional Trial Court (RTC) of Makati City, Branch 145.
[11]
Pantaleon prayed that he be awarded P2,000,000.00, as moral
damages;P500,000.00, as exemplary damages; P100,000.00, as attorneys
fees; and P50,000.00 as litigation expenses.[12]

had exercised diligent efforts to effect the approval of the purchases, which
were not in accordance with the charge pattern petitioner had established
for himself, as exemplified by the fact that at Coster, he was making his
very first single charge purchase of US$13,826, and the record of
[petitioner]s past spending with [respondent] at the time does not
favorably support his ability to pay for such purchase.[17]

On the premise that there was an obligation on the part of respondent to

approve or disapprove with dispatch the charge purchase, petitioner
argues that the failure to timely approve or disapprove the purchase
constituted mora solvendi on the part of respondent in the performance of
its obligation. For its part, respondent characterizes the depiction by
petitioner of its obligation to him as to approve purchases instantaneously
or in a matter of seconds.

On 5 August 1996, the Makati City RTC rendered a decision [13] in favor of
Pantaleon, awarding him P500,000.00 as moral damages, P300,000.00 as
exemplary damages,P100,000.00 as attorneys fees, and P85,233.01 as
expenses of litigation. Respondent filed a Notice of Appeal, while Pantaleon
moved for partial reconsideration, praying that the trial court award the
increased amount of moral and exemplary damages he had prayed for.
[14]
The RTC denied Pantaleons motion for partial reconsideration, and
thereafter gave due course to respondents Notice of Appeal. [15]

Petitioner correctly cites that under mora solvendi, the three

requisites for a finding of default are that the obligation is demandable and
liquidated; the debtor delays performance; and the creditor judicially or
extrajudicially requires the debtors performance.[18] Petitioner asserts that
the Court of Appeals had wrongly applied the principle ofmora accipiendi,
which relates to delay on the part of the obligee in accepting the
performance of the obligation by the obligor. The requisites of mora
accipiendi are: an offer of performance by the debtor who has the required
capacity; the offer must be to comply with the prestation as it should be
performed; and the creditor refuses the performance without just cause.
[19]
The error of the appellate court, argues petitioner, is in relying on the
invocation by respondent of just cause for the delay, since while just cause
is determinative of mora accipiendi, it is not so with the case of mora
solvendi.

On 18 August 2006, the Court of Appeals rendered a decision [16] reversing

the award of damages in favor of Pantaleon, holding that respondent had
not breached its obligations to petitioner. Hence, this petition.

The key question is whether respondent, in connection with the

aforementioned transactions, had committed a breach of its obligations to
Pantaleon. In addition, Pantaleon submits that even assuming that
respondent had not been in breach of its obligations, it still remained liable
for damages under Article 21 of the Civil Code.

We can see the possible source of confusion as to which type

of mora to appreciate. Generally, the relationship between a credit card
provider and its card holders is that of creditor-debtor, [20] with the card
company as the creditor extending loans and credit to the card holder, who
as debtor is obliged to repay the creditor. This relationship already takes
exception to the general rule that as between a bank and its depositors,
the bank is deemed as the debtor while the depositor is considered as the
creditor.[21] Petitioner is asking us, not baselessly, to again shift
perspectives and again see the credit card company as the debtor/obligor,
insofar as it has the obligation to the customer as creditor/obligee to act
promptly on its purchases on credit.

The RTC had concluded, based on the testimonial representations of

Pantaleon and respondents credit authorizer, Edgardo Jaurigue, that the
normal approval time for purchases was a matter of seconds. Based on
that standard, respondent had been in clear delay with respect to the three
subject transactions. As it appears, the Court of Appeals conceded that
there had been delay on the part of respondent in approving the
purchases. However, it made two critical conclusions in favor of
respondent. First, the appellate court ruled that the delay was not attended
by bad faith, malice, or gross negligence. Second, it ruled that respondent

72

Ultimately, petitioners perspective appears more sensible than if

we were to still regard respondent as the creditor in the context of this
cause of action. If there was delay on the part of respondent in its normal
role as creditor to the cardholder, such delay would not have been in the
acceptance of the performance of the debtors obligation (i.e., the
repayment of the debt), but it would be delay in the extension of the credit
in the first place. Such delay would not fall under mora accipiendi, which
contemplates that the obligation of the debtor, such as the actual
purchases on credit, has already been constituted. Herein, the
establishment of the debt itself (purchases on credit of the jewelry) had not
yet been perfected, as it remained pending the approval or consent of the
respondent credit card company.

Q. You also testified that on normal

occasions, the normal approval time for
charges would be 3 to 4 seconds?

A. Yes, Maam.

Both parties likewise presented evidence that the

processing and approval of plaintiffs charge purchase at
the Coster Diamond House was way beyond the normal
approval time of a matter of seconds.

Still, in order for us to appreciate that respondent was in mora

solvendi, we will have to first recognize that there was indeed an obligation
on the part of respondent to act on petitioners purchases with timely
dispatch, or for the purposes of this case, within a period significantly less
than the one hour it apparently took before the purchase at Coster was
finally approved.

Plaintiff testified that he presented his AmexCard

to the sales clerk at Coster, at 9:15 a.m. and by the time
he had to leave the store at 10:05 a.m., no approval had
yet been received. In fact, the Credit Authorization System
(CAS) record of defendant at Phoenix Amex shows that
defendants Amsterdam office received the request to
approve plaintiffs charge purchase at 9:20 a.m.,
Amsterdam time or 01:20, Phoenix time, and that the
defendant relayed its approval to Coster at 10:38 a.m.,
Amsterdam time, or 2:38, Phoenix time, or a total time
lapse of one hour and [18] minutes. And even then, the
approval was conditional as it directed in computerese
[sic] Positive Identification of Card holder necessary further
charges require bank information due to high exposure. By
Jack Manila.

The findings of the trial court, to our mind, amply established that
the tardiness on the part of respondent in acting on petitioners purchase at
Coster did constitute culpable delay on its part in complying with its
obligation to act promptly on its customers purchase request, whether
such action be favorable or unfavorable. We quote the trial court, thus:

As to the first issue, both parties have testified that

normal approval time for purchases was a matter of
seconds.

The delay in the processing is apparent to be

undue as shown from the frantic successive queries of
Amexco Amsterdam which reads: US$13,826. Cardmember
buying jewels. ID seen. Advise how long will this take? They
were sent at 01:33, 01:37, 01:40, 01:45, 01:52 and 02:08,
all times Phoenix. Manila Amexco could be unaware of the
need for speed in resolving the charge purchase referred to
it, yet it sat on its hand, unconcerned.

Plaintiff testified that his personal experience with

the use of the card was that except for the three charge
purchases subject of this case, approvals of his charge
purchases were always obtained in a matter of seconds.

Defendants
likewise testified:

credit authorizer Edgardo Jaurique

xxx

73

To repeat, the Credit Authorization System (CAS)

record
on
the Amsterdam transaction
shows
how
Amexco Netherlands viewed the delay as unusually
frustrating.
In
sequence
expressed
inPhoenix time
from 01:20 when the charge purchased was referred for
authorization, defendants own record shows:

long, patently unreasonable length of time to approve or disapprove a

credit card purchase. It is long enough time for the customer to walk to a
bank a kilometer away, withdraw money over the counter, and return to
the store.

Notably, petitioner frames the obligation of respondent as to

approve or disapprove the purchase in timely dispatch, and not to approve
the purchase instantaneously or within seconds. Certainly, had respondent
disapproved petitioners purchase within seconds or within a timely
manner, this particular action would have never seen the light of day.
Petitioner and his family would have returned to the bus without delay
internally humiliated perhaps over the rejection of his card yet spared the
shame of being held accountable by newly-made friends for making them
miss the chance to tour the city of Amsterdam.

01:22 the authorization is referred to

Manila Amexco

01:32 Netherlands gives

information
that the identification of the
cardmember
has
been
presented and he is buying
jewelries worth US $13,826.

We do not wish do dispute that respondent has the right, if not the
obligation, to verify whether the credit it is extending upon on a particular
purchase was indeed contracted by the cardholder, and that the
cardholder is within his means to make such transaction. The culpable
failure of respondent herein is not the failure to timely approve petitioners
purchase, but the more elemental failure to timely act on the same,
whether favorably or unfavorably. Even assuming that respondents credit
authorizers did not have sufficient basis on hand to make a judgment, we
see no reason why respondent could not have promptly informed petitioner
the reason for the delay, and duly advised him that resolving the same
could take some time. In that way, petitioner would have had informed
basis on whether or not to pursue the transaction at Coster, given the
attending circumstances. Instead, petitioner was left uncomfortably
dangling in the chilly autumn winds in a foreign land and soon forced to
confront the wrath of foreign folk.

01:33 Netherlands asks How long will

this take?

02:08 Netherlands is still asking How

long will this take?

The
constitute[s]
his use of
[22]
(Citations

Court is convinced that defendants delay

breach of its contractual obligation to act on
the card abroad with special handling.
omitted)

Moral damages avail in cases of breach of contract where the

defendant acted fraudulently or in bad faith, and the court should find that
under the circumstances, such damages are due. The findings of the trial
court are ample in establishing the bad faith and unjustified neglect of
respondent, attributable in particular to the dilly-dallying of
respondents Manila credit authorizer, Edgardo Jaurique.[23] Wrote the trial
court:

xxx

Notwithstanding the popular notion that credit card purchases are

approved within seconds, there really is no strict, legally determinative
point of demarcation on how long must it take for a credit card company to
approve or disapprove a customers purchase, much less one specifically
contracted upon by the parties. Yet this is one of those instances when
youd know it when youd see it, and one hour appears to be an awfully

While it is true that the Cardmembership

Agreement, which defendant prepared, is silent as to the

74

amount of time it should take defendant to grant

authorization
for
a
charge
purchase,
defendant
acknowledged that the normal time for approval should
only be three to four seconds. Specially so with cards used
abroad which requires special handling, meaning with
priority. Otherwise, the object of credit or charge cards
would be lost; it would be so inconvenient to use that
buyers and consumers would be better off carrying bundles
of currency or travellers checks, which can be delivered
and accepted quickly. Such right was not accorded to
plaintiff in the instances complained off for reasons known
only to defendant at that time. This, to the Courts mind,
amounts to a wanton and deliberate refusal to comply with
its contractual obligations, or at least abuse of its rights,
under the contract.[24]

Mr. Jaurique further testified that there were no

delinquencies in plaintiffs account.[25]

It should be emphasized that the reason why petitioner is entitled

to damages is not simply because respondent incurred delay, but because
the delay, for which culpability lies under Article 1170, led to the particular
injuries under Article 2217 of the Civil Code for which moral damages are
remunerative.[26] Moral damages do not avail to soothe the plaints of the
simply impatient, so this decision should not be cause for relief for those
who time the length of their credit card transactions with a stopwatch. The
somewhat unusual attending circumstances to the purchase at Coster that
there was a deadline for the completion of that purchase by petitioner
before any delay would redound to the injury of his several traveling
companions gave rise to the moral shock, mental anguish, serious anxiety,
wounded feelings and social humiliation sustained by the petitioner, as
concluded by the RTC.[27] Those circumstances are fairly unusual, and
should not give rise to a general entitlement for damages under a more
mundane set of facts.

xxx
The delay committed by defendant was clearly
attended by unjustified neglect and bad faith, since it
alleges to have consumed more than one hour to simply go
over plaintiffs past credit history with defendant, his
payment record and his credit and bank references, when
all such data are already stored and readily available from
its computer. This Court also takes note of the fact that
there is nothing in plaintiffs billing history that would
warrant the imprudent suspension of action by defendant
in processing the purchase. Defendants witness Jaurique
admits:

We sustain the amount of moral damages awarded to petitioner by

the RTC. There is no hard-and-fast rule in determining what would be a fair
and reasonable amount of moral damages, since each case must be
governed by its own peculiar facts, however, it must be commensurate to
the loss or injury suffered. [28] Petitioners original prayer forP5,000,000.00
for moral damages is excessive under the circumstances, and the amount
awarded by the trial court of P500,000.00 in moral damages more seemly.

Q. But did you discover that he did not

have any outstanding account?

A. Nothing in arrears at that time.

Likewise, we deem exemplary damages available under the
circumstances, and the amount of P300,000.00 appropriate. There is
similarly no cause though to disturb the determined award of P100,000.00
as attorneys fees, and P85,233.01 as expenses of litigation.

Q. You were well aware of this fact on this

very date?

A. Yes, sir.

75

WHEREFORE, the petition is GRANTED. The assailed Decision of

the Court of Appeals is REVERSED and SET ASIDE. The Decision of the
Regional Trial Court of Makati, Branch 145 in Civil Case No. 92-1665 is
hereby REINSTATED. Costs against respondent.

Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea sank, taking
with it its fish catch.
After the mishap, the captains of both vessels filed their respective marine protests
with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted
an investigation for the purpose of determining the proximate cause of the maritime
collision.

SO ORDERED.

Kramer vs CA, G.R. No. 83524, October 13, 1989

Republic
of
the
SUPREME
Manila

On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its
fish catch was attributable to the negligence of the employees of the private
respondent who were on board the M/V Asia Philippines during the collision. The
findings made by the Board served as the basis of a subsequent Decision of the
Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second
mate of the M/V Asia Philippines was suspended from pursuing his profession as a
marine officer. 1

Philippines
COURT

FIRST DIVISION

On May 30, 1985, the petitioners instituted a Complaint for damages against the
private respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The
suit was docketed as Civil Case No. 2907-P.

G.R. No. L-83524 October 13, 1989

ERNESTO
KRAMER,
JR.
vs.
HON. COURT OF APPEALS
INC., respondents.

and
and

MARIA
TRANS-ASIA

KRAMER, petitioners,
SHIPPING

The private respondent filed a Motion seeking the dismissal of the Complaint on the
ground of prescription. He argued that under Article 1146 of the Civil Code, 3 the
prescriptive period for instituting a Complaint for damages arising from a quasi-delict
like a maritime collision is four years. He maintained that the petitioners should have
filed their Complaint within four years from the date when their cause of action
accrued, i.e., from April 8, 1976 when the maritime collision took place, and that
accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year
prescriptive period.

LINES,

Rodolfo D. Mapile for petitioners.

Jose Al. Perez for private respondent.

For their part, the petitioners contended that maritime collisions have peculiarities and
characteristics which only persons with special skill, training and experience like the
members of the Board of Marine Inquiry can properly analyze and resolve. The
petitioners argued that the running of the prescriptive period was tolled by the filing of
the marine protest and that their cause of action accrued only on April 29, 1982, the
date when the Decision ascertaining the negligence of the crew of the M/V Asia
Philippines had become final, and that the four-year prescriptive period under Article
1146 of the Civil Code should be computed from the said date. The petitioners
concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was
seasonably filed.

GANCAYCO, J.:
The principal issue in this Petition for Review is whether or not a Complaint for
damages instituted by the petitioners against the private respondent arising from a
marine collision is barred by the statute of limitations.
The record of the case discloses that in the early morning of April 8, 1976, the F/B
Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta
Kramer, was navigating its way from Marinduque to Manila. Somewhere near
Maricabon Island and Cape Santiago, the boat figured in a collision with an interisland vessel, the M/V Asia Philippines owned by the private respondent Trans-Asia

In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by the
private respondent. The trial court observed that in ascertaining negligence relating to

76

a maritime collision, there is a need to rely on highly technical aspects attendant to

such collision, and that the Board of Marine Inquiry was constituted pursuant to the
Philippine Merchant Marine Rules and Regulations, which took effect on January 1,
1975 by virtue of Letter of Instruction No. 208 issued on August 12, 1974 by then
President Ferdinand E. Marcos, precisely to answer the need. The trial court went on
to say that the four-year prescriptive period provided in Article 1146 of the Civil Code
should begin to run only from April 29, 1982, the date when the negligence of the
crew of the M/V Asia Philippines had been finally ascertained. The pertinent portions
of the Order of the trial court are as follows

2. Special Board of Marine

Inquiry. Shall have original
jurisdiction
to
investigate
marine
casualties
and
disasters which occur or are
committed within the limits of
the Coast Guard District
concerned or those referred by
the Commandant.

Considering that the action concerns an incident involving a

collision at sea of two vehicles and to determine negligence for that
incident there is an absolute need to rely on highly technical
aspects attendant to such collisions. It is obviously to answer such
a need that the Marine Board of Inquiry (Sic) was constituted
pursuant to the Philippine Merchant Marine Rules and Regulations
which became effective January 1, 1975 under Letter of
Instruction(s) No. 208 dated August 12, 1974. The relevant section
of that law (Art. XVI/b/ provided as follow(s):

The Court finds reason in the argument of the plaintiff that marine
incidents have those 'peculiarities which only persons of special
skill, training and exposure can rightfully decipher and resolve on
the matter of the negligence and liabilities of parties involved and
inasmuch as the report of the Board of Inquiry (sic) admittedly
came out only on April 29, 1982, the prescriptive period provided x
x x under Art. 1146 of the Civil Code should begin to run only from
that date. The complaint was filed with this Court on May 10, 1985,
hence the statute of limitations can not constitute a bar to the filing
of this case. 5

1. Board of Marine Inquiry

(BMI) Shall have the
jurisdiction
to
investigate
marine accidents or casualties
relative to the liability of
shipowners and
officers,
exclusive
jurisdiction
to
investigate
cases/complaints
against the marine officers; and
to review all proceedings or
investigation conducted by the
Special Boards of Marine
Inquiry.

The private respondent elevated the case to the Court of Appeals by way of a special
civil action for certiorari and prohibition, alleging therein that the trial court committed
a grave abuse of discretion in refusing to dismiss the Complaint filed by the
petitioners. The case was assigned to the Second Division of the appellate court and
was docketed as Case No. CA-G.R. SP No. 12032. 6
In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January
12, 1988, 8 the Court of Appeals granted the Petition filed by the private respondent
and ordered the trial court to dismiss the Complaint. The pertinent portions of the
Decision of the appellate court are as follows
It is clear that the cause of action of private respondent (the herein
petitioners Ernesto Kramer, Jr. and Marta Kramer) accrued from the
occurrence of the mishap because that is the precise time when
damages were inflicted upon and sustained by the aggrieved party
and from which relief from the court is presently sought. Private
respondents should have immediately instituted a complaint for
damages based on a quasi-delict within four years from the said
marine incident because its cause of action had already definitely
ripened at the onset of the collision. For this reason, he (sic) could
cite the negligence on the part of the personnel of the petitioner to

77

exercise due care and lack of (sic) diligence to prevent the collision
that resulted in the total loss of their x x x boat.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based
upon a quasi-delict must be instituted within four (4) years. The prescriptive period
begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Court
ruled that in an action for damages arising from the collision of two (2) trucks, the
action being based on a quasi-delict, the four (4) year prescriptive period must be
counted from the day of the collision.

We can only extend scant consideration to respondent judge's

reasoning that in view of the nature of the marine collision that
allegedly involves highly technical aspects, the running of the
prescriptive period should only commence from the finality of the
investigation conducted by the Marine Board of Inquiry (sic) and the
decision of the Commandant, Philippine Coast Guard, who has
original jurisdiction over the mishap. For one, while it is true that the
findings and recommendation of the Board and the decision of the
Commandant may be helpful to the court in ascertaining which of
the parties are at fault, still the former (court) is not bound by said
findings and decision. Indeed, the same findings and decision could
be entirely or partially admitted, modified, amended, or disregarded
by the court according to its lights and judicial discretion. For
another, if the accrual of a cause of action will be made to depend
on the action to be taken by certain government agencies, then
necessarily, the tolling of the prescriptive period would hinge upon
the discretion of such agencies. Said alternative it is easy to
foresee would be fraught with hazards. Their investigations might
be delayed and lag and then witnesses in the meantime might not
be available or disappear, or certain documents may no longer be
available or might be mislaid. ... 9

In Espanol vs. Chairman, Philippine Veterans Administration,

follows-

17

this Court held as

The right of action accrues when there exists a cause of action,

which consists of 3 elements, namely: a) a right in favor of the
plaintiff by whatever means and under whatever law it arises or is
created; b) an obligation on the part of defendant to respect such
right; and c) an act or omission on the part of such defendant
violative of the right of the plaintiff ... It is only when the last element
occurs or takes place that it can be said in law that a cause of
action has arisen ... .
From the foregoing ruling, it is clear that the prescriptive period must be counted
when the last element occurs or takes place, that is, the time of the commission of an
act or omission violative of the right of the plaintiff, which is the time when the cause
of action arises.
It is therefore clear that in this action for damages arising from the collision of two (2)
vessels the four (4) year prescriptive period must be counted from the day of the
collision. The aggrieved party need not wait for a determination by an administrative
body like a Board of Marine Inquiry, that the collision was caused by the fault or
negligence of the other party before he can file an action for damages. The ruling in
Vasquez does not apply in this case. Immediately after the collision the aggrieved
party can seek relief from the courts by alleging such negligence or fault of the
owners, agents or personnel of the other vessel.

The petitioners filed a Motion for the reconsideration of the said Decision but the
same was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10
Hence, the instant Petition wherein the arguments raised by the petitioner before the
trial court are reiterated. 11 In addition thereto, the petitioner contends that the
Decision of the Court of Appeals 12 The private respondent filed its Comment on the
Petition seeking therein the dismissal of the same. 13 It is also contended by the
private respondent that the ruling of the Court in Vasquez is not applicable to the case
at bar because the said case involves a maritime collision attributable to a fortuitous
event. In a subsequent pleading, the private respondent argues that the Philippine
Merchant Marine Rules and Regulations cannot have the effect of repealing the
provisions of the Civil Code on prescription of actions. 14

Thus, the respondent court correctly found that the action of petitioner has prescribed.
The collision occurred on April 8, 1976. The complaint for damages was filed iii court
only on May 30, 1 985, was beyond the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.

On September 19,1988, the Court resolved to give due course to the petition. 15 After
the parties filed their respective memoranda, the case was deemed submitted for
decision.

SO ORDERED.

78

Contents
Bernardo vs Legaspi, G.R. No. 9308, December 23, 1914......1
PLDT vs CA, G.R. No. 57079, September 29, 1989.................1
Manila Electric vs Remoquillo , G.R. No. L-8328, May 18, 19565
M.H. Rakes vs The Atlantic, G.R. No. L-1719, January 3, 1907 7
Ma-Ao Sugar vs CA, G.R. No. 83491, August 27, 1990..........13
Aonuevo vs CA, G.R. No. 130003, 20 October 2004...........17
MPC vs Heirs of Casiona, G.R. No. 165969, November 27,2008

21

Lambert vs Heirs of Ray Castillon, G.R. No. 160709, February 23, 2005 26
PNR vs Brunty, G.R. No. 169891, November 2, 2006...........29
Genobiagon vs CA, G.R. No. 40452, October 12, 1989.........34
Sicam vs Jorge, G.R. No. 159617, August 8, 2007................35
Juntilla vs Fontona, G.R. No. L-45637, May 31, 1985............44
Southeastern College vs CA, G.R. No. 126389, July 10, 199847
Afiada vs Hisole, G.R. No. L-2075, November 29, 1949........51
Ilocos Norte vs CA, G.R. No. 53401, November 6, 1989.......52
Calalas vs CA, G.R. No. 122039, May 31, 2000.....................57
Nikko Hotel vs Robert Reyes, G.R. No. 154259, February 25, 2005

60

Pantaleon vs American Express, G.R. No. 4174269, August 25, 2010

64

SECOND DIVISION................................................................64
D E C I S I O N.......................................................................64
Kramer vs CA, G.R. No. 83524, October 13, 1989................69
79

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