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epublic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig
River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by
boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age,
crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry
that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not
appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr.
Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked
across the open space in the neighborhood of the place where the company dumped in the cinders
and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered
on the ground. These caps are approximately of the size and appearance of small pistol cartridges
and each has attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in
themselves a considerable explosive power. After some discussion as to the ownership of the caps,
and their right to take them, the boys picked up all they could find, hung them on stick, of which each
took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made
a series of experiments with the caps. They trust the ends of the wires into an electric light socket and
obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a
hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was
filled with a yellowish substance they got matches, and David held the cap while Manuel applied a
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lighted match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened
and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded,
and David was struck in the face by several particles of the metal capsule, one of which injured his
right eye to such an extent as to the necessitate its removal by the surgeons who were called in to
care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps of
the same size and kind as those found by the boys were used in sinking a well at the power plant near
the place where the caps were found; and it also appears that at or about the time when these caps
were found, similarly caps were in use in the construction of an extension of defendant's street car line
to Fort William McKinley. The caps when found appeared to the boys who picked them up to have
been lying for a considerable time, and from the place where they were found would seem to have
been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant company's
premises, although it must be assumed that the company or its employees were aware of the fact that
they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered
no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the
McKinley extension of the defendant company's track; that some of these caps were used in blasting
a well on the company's premises a few months before the accident; that not far from the place where
the caps were found the company has a storehouse for the materials, supplies and so forth, used by
it in its operations as a street railway and a purveyor of electric light; and that the place, in the
neighborhood of which the caps were found, was being used by the company as a sort of dumping
ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting
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charges by dynamite are not articles in common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty
or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly
justifies the inference that the defendant company was either the owner of the caps in question or had
the caps under its possession and control. We think also that the evidence tends to disclose that these
caps or detonators were willfully and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be buried out of the sight by the ashes
which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the
company or some of its employees either willfully or through an oversight left them exposed at a point
on its premises which the general public, including children at play, where not prohibited from visiting,
and over which the company knew or ought to have known that young boys were likely to roam about
in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these
conclusions are based by intimidating or rather assuming that the blasting work on the company's well
and on its McKinley extension was done by contractors. It was conclusively proven, however, that
while the workman employed in blasting the well was regularly employed by J. G. White and Co., a
firm of contractors, he did the work on the well directly and immediately under the supervision and
control of one of defendant company's foremen, and there is no proof whatever in the record that the
blasting on the McKinley extension was done by independent contractors. Only one witness testified
upon this point, and while he stated that he understood that a part of this work was done by contract,
he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged
contract, or of the relations of the alleged contractor to the defendant company. The fact having been
proven that detonating caps were more or less extensively employed on work done by the defendant
company's directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference that
it was the owner of the material used in these operations and that it was responsible for tortious or
negligent acts of the agents employed therein, on the ground that this work had been intrusted to
independent contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as intimated
by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we
think that the other evidence in the record sufficiently establishes the contrary, and justifies the court
in drawing the reasonable inference that the caps found on its premises were its property, and were
left where they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the
provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that
code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by 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 father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
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xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or on
account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider the
various questions as to form and the right of action (analogous to those raised in the case of Rakes
vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising
in the application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps exposed at the place where they were found
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by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries
sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the
cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the railroad company knew, or had
good reason to suppose, children would be likely to come, and there found explosive signal torpedoes
left unexposed by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a dangerous machine, such
as a turntable, left in such condition as to make it probable that children in playing with it would be
exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises, from
idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to
the negligence of the company), the principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon
its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free from fault, such is not the rule in regard
to an infant of tender years. The care and caution required of a child is according to his maturity and
capacity only, and this is to be determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar
(128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially
that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language
of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained
by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that
an invitation or license to cross the premises of another can not be predicated on the mere fact that
no steps have been taken to interfere with such practice; (4) that there is no difference between
children and adults as to the circumstances that will warrant the inference of an invitation or a license
to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35,
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36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout
(supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice
Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down
in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the
adjudged cases, both English and American, formally declared that it adhered "to the principles
announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff,
a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or invitation, and while there, was by
accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which
had been left by defendant on its premises without any fence around it or anything to give warning of
its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-
by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for
whose safety and protection while on the premises in question, against the unseen danger referred
to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the
facts in that case, because what is said there is strikingly applicable in the case at bar, and would
seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could be held liable for injuries which would not
have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of
Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
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land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of
Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent
and convincing in this jurisdiction than in that wherein those cases originated. Children here are
actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless
spirit of youth, boys here as well as there will usually be found whenever the public is permitted to
congregate. The movement of machinery, and indeed anything which arouses the attention of the
young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw
the iron which comes within the range of its magnetic influence. The owners of premises, therefore,
whereon things attractive to children are exposed, or upon which the public are expressly or impliedly
permitted to enter or upon which the owner knows or ought to know children are likely to roam about
for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases
the owner of the premises can not be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to whom the owner owes no duty or
obligation whatever. The owner's failure to take reasonable precautions to prevent the child from
entering his premises at a place where he knows or ought to know that children are accustomed to
roam about of to which their childish instincts and impulses are likely to attract them is at least
equivalent to an implied license to enter, and where the child does enter under such conditions the
owner's failure to take reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if
the child is actually injured, without other fault on its part than that it had entered on the premises of a
stranger without his express invitation or permission. To hold otherwise would be expose all the
children in the community to unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has
a right to do what will with his own property or that children should be kept under the care of their
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parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight
to put in doubt. In this jurisdiction as well as in the United States all private property is acquired and
held under the tacit condition that it shall not be so used as to injure the equal rights and interests of
the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants
of very tender years it would be absurd and unreasonable in a community organized as is that in which
we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein
they permit growing boys and girls to leave the parental roof unattended, even if in the event of
accident to the child the negligence of the parent could in any event be imputed to the child so as to
deprive it a right to recover in such cases — a point which we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express
invitation or permission would not have relieved defendant from responsibility for injuries incurred there
by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the proximate cause of the injury
received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible
for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages
for an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under the reasoning on which rests the
doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility
for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years
of age, because of his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed a match to the
contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point,
which must be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of
the "Torpedo" and analogous cases which our attention has been directed, the record discloses that
the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were
held not to have the capacity to understand the nature or character of the explosive instruments which
fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able
to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made
by him in his attempt to produce an explosion, as described by the little girl who was present, admit of
no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts
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to explode it with a stone or a hammer, and the final success of his endeavors brought about by the
application of a match to the contents of the caps, show clearly that he knew what he was about. Nor
can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when
he put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might
be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It
would be going far to say that "according to his maturity and capacity" he exercised such and "care
and caution" as might reasonably be required of him, or that defendant or anyone else should be held
civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it negligence
on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it
would be impracticable and perhaps impossible so to do, for in the very nature of things the question
of negligence necessarily depends on the ability of the minor to understand the character of his own
acts and their consequences; and the age at which a minor can be said to have such ability will
necessarily depends of his own acts and their consequences; and at the age at which a minor can be
said to have such ability will necessarily vary in accordance with the varying nature of the infinite
variety of acts which may be done by him. But some idea of the presumed capacity of infants under
the laws in force in these Islands may be gathered from an examination of the varying ages fixed by
our laws at which minors are conclusively presumed to be capable of exercising certain rights and
incurring certain responsibilities, though it can not be said that these provisions of law are of much
practical assistance in cases such as that at bar, except so far as they illustrate the rule that the
capacity of a minor to become responsible for his own acts varies with the varying circumstances of
each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to
be capable of committing a crime and is to held criminally responsible therefore, although the fact that
he is less than eighteen years of age will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain circumstances, choose
which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765).
And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G.
O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible
of the danger to which he exposed himself when he put the match to the contents of the cap; that he
was sui juris in the sense that his age and his experience qualified him to understand and appreciate
the necessity for the exercise of that degree of caution which would have avoided the injury which
resulted from his own deliberate act; and that the injury incurred by him must be held to have been the
direct and immediate result of his own willful and reckless act, so that while it may be true that these
injuries would not have been incurred but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest,
book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

`

The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his
Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March
7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and
the damage there exists the relation of cause and effect; but if the damage caused does not
arise from the acts or omissions of a third person, there is no obligation to make good upon
the latter, even though such acts or omissions be imprudent or illegal, and much less so
when it is shown that the immediate cause of the damage has been the recklessness of the
injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points of
the proof, which are two: An act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and
`

directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela,
Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein
we held that while "There are many cases (personal injury cases) was exonerated," on the ground that
"the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of
January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year);
none of the cases decided by the supreme court of Spain "define the effect to be given the negligence
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;" and in such cases we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but expressly and definitely denied the right of
recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

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 made
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 to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damages—that is, the sinking 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 through his act or omission of duty, that 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.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the
accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the
cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can
not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under
the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have
no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted
in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity
of plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.
`

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court
below, without costs to either party in this instance, and ten days thereafter let the record be returned
to the court wherein it originated, where the judgment will be entered in favor of the defendant for the
costs in first instance and the complaint dismissed without day. So ordered.

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

Johnson, J., concurs in the result.

Footnotes

1
Phil. Rep., 85.
`

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while
the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle
began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some
of the passengers managed to leave the bus the best way they could, others had to be helped or
pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan
and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some
of the passengers, after they had clambered up to the road, heard groans and moans from inside the
bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus.
There is nothing in the evidence to show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of
bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach
the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the
bus, including the four passengers trapped inside it. It would appear that as the bus overturned,
gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over
and permeating the body of the bus and the ground under and around it, and that the lighted torch
brought by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and
duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name
and in behalf of her five minor children, brought the present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150.
After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's
fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and
which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the
complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their
goods. For purposes of reference, we are reproducing the pertinent codal provisions:
`

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

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his agent,
the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding,
as testified to by one of the passengers, and as shown by the fact that according to the testimony of
the witnesses, including that of the defense, from the point where one of the front tires burst up to the
canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The
chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of
the velocity at which the bus must have been running, its momentum carried it over a distance of 150
meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his
co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must
have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not
for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
`

producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing
him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the
passenger is burned to death, one might still contend that the proximate cause of his death was the
fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining
in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this
for the reason that when the vehicle turned not only on its side but completely on its back, the leaking
of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a
lighted torch was in response to the call for help, made not only by the passengers, but most probably,
by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning),
the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns
and flashlights were not available; and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other
words, the coming of the men with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and the call for outside help. What is
more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and the conductor were on the road
walking back and forth. They, or at least, the driver should and must have known that in the position
in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and
soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially
over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted
torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal
provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise
carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one
of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus
changed immediately because they were already old, and that as a matter of fact, he had been telling
the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it
goes to prove that the driver had not been diligent and had not taken the necessary precautions to
insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones,
as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow
out would not have occurred. All in all, there is reason to believe that the driver operated and drove
his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and
`

the complete loss and destruction of their goods, and yet the criminal case against him, on motion of
the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the
witnesses on whose testimony he was banking to support the complaint, either failed or appear or
were reluctant to testify. But the record of the case before us shows the several witnesses,
passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was
negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only
as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a
copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L.,
Endencia, and Felix, JJ., concur.
`

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:

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

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident, while under the influence of liquor, without his
headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due
rare in the selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and
the replacement of the lost dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected
income for plaintiff brought about the accident in controversy and which is the result
of the negligence of the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages
for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation,
`

besmirched reputation, feeling of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family since the accident in
controversy up to the present time;

(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before
the filing of this case in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified the award of damages to the following
extent:

1. The award of P15,000.00 as compensatory damages was reduced

to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was

reduced to P100,000.00, basically because Dionisio had voluntarily
resigned his job such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the accident in
question;" and

3. The award of P100,000.00 as moral damages was held by the

appellate court as excessive and unconscionable and hence reduced
to P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00 as

attorney's fees and costs remained untouched.

This decision of the Intermediate Appellate Court is now before us on a petition for review.

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which both
courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver,
and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the record both before the trial
court and the Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his
car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient
`

cause determinative of the accident and the injuries he sustained. The need to administer
substantial justice as between the parties in this case, without having to remand it back to the trial
court after eleven years, compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear
upon the liability, or extent of liability, of Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was
intoxicated at the time of the accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the
person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence
here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment immediately after the accident. At the Makati
Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the
trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years
after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando,
Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that
private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of
effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass
during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether
Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.

On the second issue — whether or not Dionisio was speeding home that night — both the trial court
and the appellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene
of the accident almost immediately after it occurred, the police station where he was based being
barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of
the accident told him that Dionisio's car was "moving fast" and did not have its headlights on. 2
Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per
hour and had just crossed the intersection of General Santos and General Lacuna Streets and had
started to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag
within any of the recognized exceptions to the hearsay rule since the facts he testified to were not
acquired by him through official information and had not been given by the informants pursuant to
any duty to do so. Private respondent's objection fails to take account of the fact that the testimony
of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but
rather as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule
consists of excited utterances made on the occasion of an occurrence or event sufficiently startling
in nature so as to render inoperative the normal reflective thought processes of the observer and
hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective
thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object
in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time. The testimony of Patrolman
Cuyno was therefore admissible as part of the res gestae and should have been considered by the
`

trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it
did not, as it could not, have purported to describe quantitatively the precise velocity at winch
Dionisio was travelling just before impact with the Phoenix dump truck.

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

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

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

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

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and
that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the
accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the distinctions between "cause" and "condition" which
the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and
Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active
"cause" of the harm and the existing "conditions" upon which that cause operated. If
`

the defendant has created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which have played an important
part in producing the result it is quite impossible to distinguish between active forces
and passive situations, particularly since, as is invariably the case, the latter are the
result of other active forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the gasoline, the condition has
done quite as much to bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape responsibility. Even
the lapse of a considerable time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the highway may still be liable to
another who fans into it a month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must refer to the type of case where
the forces set in operation by the defendant have come to rest in a position of
apparent safety, and some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but the nature of the
risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump truck
and the private respondent's car would in an probability not have occurred had the dump truck not
been parked askew without any warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck driver's negligence and therefore closer to
the accident, was not an efficient intervening or independent cause. What the Petitioners describe as
an "intervening cause" was no more than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the very risk the truck
driver had created. Dionisio's negligence was not of an independent and overpowering nature as to
cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor
and Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary

human experience is reasonably to be anticipated or one which the defendant has
reason to anticipate under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard against it; or the
defendant may be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later wig
spread it beyond the defendant's own property, and therefore to take precautions to
prevent that event. The person who leaves the combustible or explosive material
exposed in a public place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with the defendant's
conduct to produce the result and in each case the defendant's negligence consists
in failure to protect the plaintiff against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that the risk or a
substantial and important part of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's negligence. The courts are quite
`

generally agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the usual
weather of the vicinity, including all ordinary forces of nature such as usual wind or
rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on
the road or a railroad track should foresee that a vehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the foreseeable
negligence of others. ... [The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional negligence which is one of
the ordinary incidents of human life, and therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved of
responsibility when another negligently drives into it. --- 10

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio
had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having
failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine
of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether,
or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to
do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do
not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose
negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of
the negligent act or omission of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore
his employer) should be absolved from responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid
the peril precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-
delicts seeks to reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of
society.
`

Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix 16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly
in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck
driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to
show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages
awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and
costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who
shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by
the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced
award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs against the petitioners.

SO ORDERED.

Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

`

G.R. No. 92087 May 8, 1992

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely:
ALBERTO & ROBERTO, all surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO,
ROSALIA BERTULANO, in her behalf and as the legal guardian of her minor children, namely:
EDUARDO, ROLANDO, DANIEL, AND JOCELYN, all surnamed BERTULANO, PRIMITIVA
FAJARDO in her behalf and as legal guardian of her minor children, namely: GILBERT, GLEN,
JOCELYN AND JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf
and as guardian ad litem, of her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE
and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari praying that the amended decision of the Court of Appeals
dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City
of Davao," be reversed and that its original decision dated January 31, 1986 be reinstated subject to
the modification sought by the petitioners in their motion for partial reconsideration dated March 6,
1986.

The antecedent facts are briefly narrated by the trial court, as follows:

From the evidence presented we see the following facts: On November 7,

1975, Bibiano Morta, market master of the Agdao Public Market filed a
requisition request with the Chief of Property of the City Treasurer's Office for
the re-emptying of the septic tank in Agdao. An invitation to bid was issued to
Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and Antonio
Suñer, Jr. Bascon won the bid. On November 26, 1975 Bascon was notified
and he signed the purchase order. However, before such date, specifically on
November 22, 1975, bidder Bertulano with four other companions namely
Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr.
were found dead inside the septic tank. The bodies were removed by a
fireman. One body, that of Joselito Garcia, was taken out by his uncle, Danilo
Garcia and taken to the Regional Hospital but he expired there. The City
Engineer's office investigated the case and learned that the five victims
entered the septic tank without clearance from it nor with the knowledge and
consent of the market master. In fact, the septic tank was found to be almost
empty and the victims were presumed to be the ones who did the re-
emptying. Dr. Juan Abear of the City Health Office autopsied the bodies and
in his reports, put the cause of death of all five victims as "asphyxia" caused
by the diminution of oxygen supply in the body working below normal
conditions. The lungs of the five victims burst, swelled in hemmorrhagic
areas and this was due to their intake of toxic gas, which, in this case, was
sulfide gas produced from the waste matter inside the septic tank. (p. 177,
Records)

On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:
`

IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without

pronouncement as to costs.

SO ORDERED. (Records, p. 181)

From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court
of Appeals). On January 3, 1986, the appellate court issued a decision, the dispositive portion of
which reads:

WHEREFORE, in view of the facts fully established and in the liberal

interpretation of what the Constitution and the law intended to protect the
plight of the poor and the needy, the ignorant and the
indigent –– more entitled to social justice for having, in the unforgettable
words of Magsaysay, "less in life," We hereby reverse and set aside the
appealed judgment and render another one:

1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia

Fernando and her minor children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita
Garcia the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic) and
her minor children the following sums of money

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her
minor children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas

Liagoso and Emeteria Liagoso and her minor grandchildren the following
sums of money:

a) Compensatory damages for his death P30,000.00

`

b) Moral damages P20,000.00

The death compensation is fixed at P30,000.00 in accordance with the

rulings of the Supreme Court starting with People vs. De la Fuente, Nos. L-
63251-52, December 29, 1983, 126 SCRA 518 reiterated in the recent case
of People vs. Nepomuceno, No. L-41412, May 27, 1985. Attorney's fees in
the amount of P10,000.00 for the handling of the case for the 5 victims is also
awarded.

No pronouncement as to costs.

SO ORDERED. (Rollo, pp. 33-34)

Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of
Appeals rendered an Amended Decision, the dispositive portion of which reads:

WHEREFORE, finding merit in the motion for reconsideration of the

defendant-appellee Davao City, the same is hereby GRANTED. The decision
of this Court dated January 31, 1986 is reversed and set aside and another
one is hereby rendered dismissing the case. No pronouncement as to costs.

SO ORDERED. (Rollo, p. 25)

Hence, this petition raising the following issues for resolution:

1. Is the respondent Davao City guilty of negligence in the case at bar?

2. If so, is such negligence the immediate and proximate cause of deaths of

the victims hereof? (p. 72, Rollo)

Negligence has been defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury (Corliss v. Manila Railroad Company, L-21291, March 28,
1969, 27 SCRA 674, 680). Under the law, a person who by his omission causes damage to another,
there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code). As to
what would constitute a negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:

The test by which to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet pater familias of the
Roman law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a

given situation must of course be always determined in the light of human
`

experience and in view of the facts involved in the particular case. Abstract
speculation cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions
to guard against that harm. Reasonable foresight of harm, followed by the
ignoring of the suggestion born of this provision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was sufficiently
probable warrant his foregoing the conduct or guarding against its
consequences. (emphasis supplied)

To be entitled to damages for an injury resulting from the negligence of another, a claimant must
establish the relation between the omission and the damage. He must prove under Article 2179 of
the New Civil Code that the defendant's negligence was the immediate and proximate cause of his
injury. Proximate cause has been defined as that cause, which, in natural and continuous sequence
unbroken by any efficient intervening cause, produces the injury, and without which the result would
not have occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of
cause and effect is not an arduous one if the claimant did not in any way contribute to the negligence
of the defendant. However, where the resulting injury was the product of the negligence of both
parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the
accident. In Taylor v. Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a
guideline for a judicious assessment of the situation:

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 made 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 to his own
proper hurt. For instance, the cause of the accident 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 sinking 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
through his act or omission of duty, that 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. (emphasis Ours)

Applying all these established doctrines in the case at bar and after a careful scrutiny of the records,
We find no compelling reason to grant the petition. We affirm.

Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19
years resulting in an accumulation of hydrogen sulfide gas which killed the laborers. They contend
`

that such failure was compounded by the fact that there was no warning sign of the existing danger
and no efforts exerted by the public respondent to neutralize or render harmless the effects of the
toxic gas. They submit that the public respondent's gross negligence was the proximate cause of the
fatal incident.

We do not subscribe to this view. While it may be true that the public respondent has been remiss in
its duty to re-empty the septic tank annually, such negligence was not a continuing one. Upon
learning from the report of the market master about the need to clean the septic tank of the public
toilet in Agdao Public Market, the public respondent immediately responded by issuing invitations to
bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano Bascon (TSN,
May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time in taking up remedial
measures to meet the situation. It is likewise an undisputed fact that despite the public respondent's
failure to re-empty the septic tank since 1956, people in the market have been using the public toilet
for their personal necessities but have remained unscathed. The testimonies of Messrs. Danilo
Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on this point are relevant, to wit:

Atty. Mojica, counsel for defendant Davao City:

xxx xxx xxx

The place where you live is right along the Agdao creek, is
that correct?

DANILO GARCIA:

A Yes, sir.

Q And to be able to go to the market place, where you claim

you have a stall,, you have to pass on the septic tank?

A Yes, sir.

Q Day in and day out, you pass on top of the septic tank?

A Yes, sir.

Q Is it not a fact that everybody living along the creek passes

on top of this septic tank as they go out from the place and
return to their place of residence, is that correct?

And this septic tank, rather the whole of the septic tank, is
covered by lead . . .?

A Yes, sir. there is cover.

Q And there were three (3) of these lead covering the septic
tank?

A Yes, sir.

Q And this has always been closed?

`

A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis

supplied)

ATTY. JOVER, counsel for the plaintiffs:

Q You said you are residing at Davao City, is it not?

DAVID SEJOYA:

A Yes, sir.

Q How long have you been a resident of Agdao?

A Since 1953.

Q Where specifically in Agdao are you residing?

A At the Public Market.

Q Which part of the Agdao Public Market is your house

located?

A Inside the market in front of the fish section.

Q Do you know where the Agdao septic tank is located?

A Yes, sir.

Q How far is that septic tank located from your house?

A Around thirty (30) meters.

Q Have you ever had a chance to use that septic tank (public
toilet)?

A Yes, sir.

Q How many times, if you could remember?

A Many times, maybe more than 1,000 times.

Q Prior to November 22, 1975, have you ever used that

septic tank (public toilet)?

A Yes, sir.

Q How many times have you gone to that septic tank (public
toilet) prior to that date, November 22, 1975?

A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)

`

The absence of any accident was due to the public respondent's compliance with the
sanitary and plumbing specifications in constructing the toilet and the septic tank
(TSN, November 4, 1983, p. 51). Hence, the toxic gas from the waste matter could
not have leaked out because the septic tank was air-tight (TSN, ibid, p. 49). The only
indication that the septic tank in the case at bar was full and needed emptying was
when water came out from it (TSN, September 13, 1983, p. 41). Yet, even when the
septic tank was full, there was no report of any casualty of gas poisoning despite the
presence of people living near it or passing on top of it or using the public toilet for
their personal necessities.

Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the
negligence of the city government and presented witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand,
Engineer Demetrio Alindada of the city government testified and demonstrated by drawings how the
safety requirements like emission of gases in the construction of both toilet and septic tank have
been complied with. He stated that the ventilation pipe need not be constructed outside the building
as it could also be embodied in the hollow blocks as is usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence to corroborate their
oral testimonies or rebut the testimony given by Engr. Alindada.

We also do not agree with the petitioner's submission that warning signs of noxious gas should have
been put up in the toilet in addition to the signs of "MEN" and "WOMEN" already in place in that
area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil
Code which would necessitate warning signs for the protection of the public. While the construction
of these public facilities demands utmost compliance with safety and sanitary requirements, the
putting up of warning signs is not one of those requirements. The testimony of Engr. Alindada on this
matter is elucidative:

ATTY. ALBAY:

Q Mr. Witness, you mentioned the several aspects of the

approval of the building permit which include the plans of an
architect, senitary engineer and electrical plans. All of these
still pass your approval as building official, is that correct?

DEMETRIO ALINDADA:

A Yes.

Q So there is the sanitary plan submitted to and will not be

approved by you unless the same is in conformance with the
provisions of the building code or sanitary requirements?

A Yes, for private building constructions.

Q How about public buildings?

A For public buildings, they are exempted for payment of

building permits but still they have to have a building permit.
`

Q But just the same, including the sanitary plans, it require

your approval?

A Yes, it requires also.

Q Therefore, under the National Building Code, you are

empowered not to approve sanitary plans if they are not in
conformity with the sanitary requirements?

A Yes.

Q Now, in private or public buildings, do you see any warning

signs in the vicinity of septic tanks?

A There is no warning sign.

Q In residential buildings do you see any warning sign?

A There is none.

ATTY. AMPIG:

We submit that the matter is irrelevant and immaterial, Your

Honor.

ATTY. ALBAY:

But that is in consonance with their cross-examination, your

Honor.

COURT:

Anyway it is already answered.

ATTY. ALBAY:

Q These warning signs, are these required under the

preparation of the plans?

A It is not required.

Q I will just reiterate, Mr. Witness. In residences, for example

like the residence of Atty. Ampig or the residence of the
honorable Judge, would you say that the same principle of
the septic tank, from the water closet to the vault, is being
followed?

A Yes.

ATTY. ALBAY:
`

That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-
63)

In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the
septic tank is unlikely to happen unless one removes its covers. The accident in the case at bar
occurred because the victims on their own and without authority from the public respondent opened
the septic tank. Considering the nature of the task of emptying a septic tank especially one which
has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the
attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of
service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men
to take precautionary measures for their safety was the proximate cause of the accident. In Culion
Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that when a person
holds himself out as being competent to do things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work
which he attempts to do (emphasis Ours). The fatal accident in this case would not have happened
but for the victims' negligence. Thus, the appellate court was correct to observe that:

. . . Could the victims have died if they did not open the septic tank which
they were not in the first place authorized to open? Who between the passive
object (septic tank) and the active subject (the victims herein) who, having no
authority therefore, arrogated unto themselves, the task of opening the septic
tank which caused their own deaths should be responsible for such deaths.
How could the septic tank which has been in existence since the 1950's be
the proximate cause of an accident that occurred only on November 22,
1975? The stubborn fact remains that since 1956 up to occurrence of the
accident in 1975 no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is that the victims'
death was caused by their own negligence in opening the septic tank. . . .
(Rollo, p. 23)

Petitioners further contend that the failure of the market master to supervise the area where the
septic tank is located is a reflection of the negligence of the public respondent.

We do not think so. The market master knew that work on the septic tank was still forthcoming. It
must be remembered that the bidding had just been conducted. Although the winning bidder was
already known, the award to him was still to be made by the Committee on Awards. Upon the other
hand, the accident which befell the victims who are not in any way connected with the winning bidder
happened before the award could be given. Considering that the case was yet no award to
commence work on the septic tank, the duty of the market master or his security guards to supervise
the work could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not have
been seen working in the area because the septic tank was hidden by a garbage storage which is
more or less ten (10) meters away from the comfort room itself (TSN, ibid, pp. 38-39). The
surreptitious way in which the victims did their job without clearance from the market master or any
of the security guards goes against their good faith. Even their relatives or family members did not
know of their plan to clean the septic tank.

Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be
sustained. Said law states:

Art. 24. In all contractual, property or other relations, when one of the parties
is at a disadvantage on account of his moral dependence, ignorance,
`

indigence, mental weakness, tender age or other handicap, the courts must
be vigilant for his protection.

We approve of the appellate court's ruling that "(w)hile one of the victims was invited
to bid for said project, he did not win the bid, therefore, there is a total absence of
contractual relations between the victims and the City Government of Davao City that
could give rise to any contractual obligation, much less, any liability on the part of
Davao City." (Rollo, p. 24) The accident was indeed tragic and We empathize with
the petitioners. However, the herein circumstances lead Us to no other conclusion
than that the proximate and immediate cause of the death of the victims was due to
their own negligence. Consequently, the petitioners cannot demand damages from
the public respondent.

ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is
AFFIRMED. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Griño-Aquino and Bellosillo, JJ., concur.

`

BENGUET ELECTRIC COOPERATIVE, INC., petitioner, vs. COURT OF

APPEALS, CARIDAD O. BERNARDO as Guardian Ad Litem for
Minors JOJO, JEFFREY and JO-AN, all surnamed BERNARDO, and
GUILLERMO CANAVE, JR., respondents.

DECISION
BELLOSILLO, J.:

This case involves a review on certiorari of the Decision of the Court of Appealsiaffirming
with modification the decision of the Regional Trial Court of Baguio City, and ordering petitioner
Benguet Electric Cooperative Inc. (BENECO) to pay Caridad O. Bernardo, as guardian ad litem
of the three (3) minor children of the late Jose Bernardo P50,000.00 as indemnity for his death,
with interest thereon at the legal rate from February 6, 1985, the date of the filing of the complaint,
until fully paid, P100,000.00 for moral damages, P20,000.00 for exemplary damages, another
P20,000.00 for attorney's fees, P864,000.00 for net income loss for the remaining thirty (30) years
of the life expectancy of the deceased, and to pay the costs of suit.
The appellate court dismissed for lack of merit the counterclaim of BENECO against the
Bernardos and its third party complaint against Guillermo Canave, Jr., as well as the latter's
counterclaim.
For five (5) years up to the time of his death, Jose Bernardo managed a stall at the Baguio City
meat market. On 14 January 1985 at around 7:50 in the morning, Jose together with other meat
vendors went out of their stalls to meet a jeepney loaded with slaughtered pigs in order to select
the meat they would sell for the day. Jose was the very first to reach the parked jeepney. Grasping
the handlebars at the rear entrance of the vehicle, and as he was about to raise his right foot to get
inside, Jose suddenly stiffened and trembled as though suffering from an epileptic seizure. Romeo
Pimienta who saw Jose thought he was merely joking but noticed almost in disbelief that he was
already turning black. In no time the other vendors rushed to Jose and they discovered that the
antenna of the jeepney bearing the pigs had gotten entangled with an open electric wire at the top
of the roof of a meat stall. Pimienta quickly got hold of a broom and pried the antenna loose from
the open wire. But shortly after, Jose released his hold on the handlebars of the jeep only to slump
to the ground. He died shortly in the hospital. Cause of his death was "cardio-respiratory arrest
secondary to massive brain congestion with petheccial hemorrhage, brain bilateral pulmonary
edema and congestion and endocardial petecchial hemorrhage and dilation (history of
electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of Jose Bernardo, and their minor children,
Jojo, Jeffrey and Jo-an, all surnamed Bernardo, filed a complaint against BENECO before the
Regional Trial Court of Baguio City for a sum of money and damages arising from the
electrocution of Jose Bernardo. In the same civil action, BENECO filed a third-party complaint
against Guillermo Canave, Jr., the jeepney owner.
In its decision dated 15 August 1994, the trial court ruled in favor of the Bernardos and ordered
BENECO to pay them damages.ii Both petitioner and private respondents herein appealed to the
Court of Appeals. On 5 November 1996 the appellate court promulgated its Decision which
BENECO now assails contending inter alia that the appellate court gravely erred in ordering
`

BENECO to pay damages in light of the clear evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole cause, or at least the principal cause, of the
electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by respondent court notwithstanding a clear
showing that the electrocution and death of Jose Bernardo were directly attributable to the fault
and negligence of jeepney owner Guillermo Canave, Jr.
The records of the case show that respondent court did not commit any reversible error in
affirming the findings of the trial court that BENECO was solely responsible for the untimely
death of Jose Bernardo through accidental electrocution. According to the trial court, which we
find substantiated by the records -iii
Through Virgilio Cerezo, a registered master electrician and presently the Chief Electrical Building
Inspector of the General Services Division of the City of Baguio, who was tasked to investigate the
electrocution of Bernardo, the plaintiffs adduced proof tending to show that the defendant BENECO
installed a No. 2 high voltage main wire distribution line and a No. 6 service line to provide power at the
temporary meat market on Hilltop Road. It put up a three-inch G.I. pipe pole to which the No. 2 main line
was strung on top of a stall where a service drop line was connected. The height of the electrical connection
from the No. 2 line to the service line was barely eight (8) to nine (9) feet (Exhibit "E"; See Exhibit "D-1")
which is in violation of the Philippine Electrical Code which requires a minimum vertical clearance of
fourteen (14) feet from the level of the ground since the wiring crosses a public street. Another violation
according to Cerezo, is that the main line connected to the service line was not of rigid conduit wiring but
totally exposed without any safety protection (Ibid). Worse, the open wire connections were not insulated
(Ibid); See Exhibits "D-6", "D-6-A", "D-7"). The jeep's antenna which was more than eight (8) feet high
(Exhibit "D-9") from the ground ( It is about six to seven feet long and mounted on the left fender which is
about three feet above the ground) got entangled with the open wire connections (Exhibit "D-8"), thereby
electrically charging its handlebars which Bernardo held on to enter the vehicle resulting in his
electrocution.
While Vedasto Augusto, an electrical engineer and the line superintendent in the electrical department
of the defendant BENECO, admitted that the allowable vertical clearance of the service drop line is even
15 feet from the ground level and not only 14 feet, he and Jose Angeles, then an instrument man or surveyor
of the BENECO, insisted that BENECO installed (they do not know by whom in particular) from the Apollo
Building nearby a service drop line carrying 220 volts which was attached to a G.I. pipe pole (Exhibits "1"
and "1-A"). The vertical clearance of the point of attachment of the service drop line on the G.I. post to the
ground is 15.5 feet (Exhibit "1-B"), which is more than the allowable 15-foot clearance. To this service
drop line was connected the service entrance conductor (Exhibit "1-D") to supply power inside the premises
to be serviced through an electric meter. At the lower portion of the splicing or connecting point between
the service drop line and the service entrance conductor is a three to four-inch bare wire to serve as a ground.
They saw the bare wire because the splicing point was exposed as it was not covered with tape (Exhibit "1-
E"). The antenna of the jeep which electrocuted Bernardo got entangled with this exposed splicing point.
Augusto claimed that it was not BENECO's job to splice or connect the service entrance conductor to
the service drop line but rather the owner of the premises to be serviced whose identity they did not,
however, determine.
Significantly, on cross-examination, Augusto admitted that the service drop line that BENECO
installed did not end at the point to which it is attached to the G.I. post. Rather, it passed through a spool
insulator that is attached to the post (Exhibit "1-F") and extended down to where the service entrance
conductor is spliced with the result that the exposed splicing point (Exhibit "1-E") is only about eight (8)
feet from the ground level.
`

There is no question that as an electric cooperative holding the exclusive franchise in

supplying electric power to the towns of Benguet province, its primordial concern is not only to
distribute electricity to its subscribers but also to ensure the safety of the public by the proper
maintenance and upkeep of its facilities. It is clear to us then that BENECO was grossly negligent
in leaving unprotected and uninsulated the splicing point between the service drop line and the
service entrance conductor, which connection was only eight (8) feet from the ground level, in
violation of the Philippine Electrical Code. BENECO's contention that the accident happened only
on January 14, 1985, around seven (7) years after the open wire was found existing in 1978, far
from mitigating its culpability, betrays its gross neglect in performing its duty to the public.iv By
leaving an open live wire unattended for years, BENECO demonstrated its utter disregard for the
safety of the public. Indeed, Jose Bernardo's death was an accident that was bound to happen in
view of the gross negligence of BENECO.
BENECO theorizes in its defense that the death of Jose Bernardo could be attributed to the
negligence of Canave, Jr., in parking his jeepney so close to the market stall which was neither a
parking area nor a loading area, with his antenna so high as to get entangled with an open wire
above the Dimasupil store.v But this line of defense must be discarded. Canave's act of parking in
an area not customarily used for that purpose was by no means the independent negligent act
adverted to by BENECO in citing Manila Electric Co. v. Ronquillo.vi Canave was well within his
right to park the vehicle in the said area where there was no showing that any municipal law or
ordinance was violated nor that there was any foreseeable danger posed by his act. One thing
however is sure, no accident would have happened had BENECO installed the connections in
accordance with the prescribed vertical clearance of fifteen (15) feet.
Second. BENECO avers that the Court of Appeals gravely erred in awarding P864,000.00 as
net income loss for the thirty (30) years remaining of the life expectancy of the deceased Jose
Bernardo, albeit the trial court found no firm basis for awarding this item of damages.
We recall that the trial court disallowed the award for net loss income in view of the alleged
contradictory and untrustworthy testimony of the deceased's surviving spouse Caridad Bernardo.
Thus -
As to lost earnings. The court finds the allegations of the plaintiffs, particularly Caridad Bernardo
contradictory and untrustworthy. While in the complaint, which she herself verified, she asseverated that at
the time of his death on January 14, 1985, her late husband was earning no less than P150.00 daily after
deducting personal expenses and household and other family obligations; at the trial she bloated this up to
P3,000.00 gross daily or P300.00 profit a day or a net income of P200.00 daily after deducting personal and
household expenses. But inexplicably she could not present the income tax return of her husband for 1983
and 1984 although she stated that he had been filing such returns. What she submitted are his income tax
returns for 1981 and 1982 showing a much lower annual gross income of P12,960.00 and P16,120.00,
respectively. The Court, therefore, finds no firm basis for awarding this item of damages.
In modifying the decision of the trial court, the Court of Appeals relied on the testimony of
Rosita Noefe, sister of the deceased, that her brother started as her helper in the several meat stalls
she operated until 1982 when she allowed Jose to operate one of her stalls as his own and gave
him an initial capital of P15,000.00 to add to his own. She explained that her brother sold from
100 to 150 kilos of pork and 30 to 50 kilos of meat a day earning an income of about P150.00 to
P200.00 pesos daily. After deducting his personal expenses and family obligations, Jose earned a
daily net income between P70.00 and P80.00. Jose Bernardo died of electrocution at the age of
thirty-three (33). Following the ruling in Villa Rey Transit v. Court of Appealsvii and Davila v.
`

PALviiihis life expectancy would allow him thirty and one third (30-1/3) years more. Assuming on
the basis of his P80.00 daily net income translated to P2,400.00 monthly or P28,800.00 yearly, the
net income loss for the thirty (30) years remaining of his life expectancy would amount to
P864,000.00.ix
While we are of the opinion that private respondent Bernardo is entitled to indemnity for loss
of earning capacity of her deceased husband we however find that a modification is in order. The
amount corresponding to the loss of earning capacity is based mainly on two factors: (a) the
number of years on the basis of which the damages shall be computed; and, (b) the rate at which
the losses sustained by the widow and her children should be fixed.x
We consider that the deceased was married with three (3) children and thirty-three (33) years
old at the time of his death. By applying the formula: 2/3 x (80 - 33) = Life Expectancy, the normal
life expectancy of the deceased would be thirty-one and one-third (31-1/3) years and not thirty
(30) as found by the respondent court. By taking into account the nature and quality of life of a
meat vendor, it is hard to conceive that Jose would still be working for the full stretch of the
remaining thirty-one (31) years of his life; and therefore it is but reasonable to make allowances
and reduce his life expectancy to twenty-five (25) years.xi
Anent the second factor, we are of the view that the Court of Appeals was correct in relying
on the unrebutted testimony of Rosita Noefe concerning the income of Jose, thus providing a basis
for fixing the rate of damages incurred by the heirs of the deceased. Rosita clarified as follows:
Q: Now you said that you brother's stall is just very near, about 4 to 5 meters away from your stall. Do
you know more or less how your brother was earning by way of income because the stall belongs
also to you and your husband?
A: Yes, sir (italics supplied).
Q: How much more or less would you say was his daily income from the stall, if you know?
A: P150 to P200 more, sometimes more than P200.
Q: What is this? Monthly, daily, or what?
A: Daily sir.
Q: Now, when you said that he earns sometimes 150 or 200 in a day can (sic) you tell this court more
or less how many in terms of net or in terms of kilos that he can sell with that amount daily?
A: More than one hundred (100) kilos, sir, or one hundred fifty kilos (150).
Q: By the way what was your brother selling also in that meat stall?
A: Pork and beef, sir.
Q: In terms of how many slaughter(ed) pigs would that be if you know? 100 to 150 kilo
A: Two (2) pigs, sir.
Q: Is this... How about meat, I mean, aside from pigs?
A: About thirty (30) to fifty (50) kilos for beef.
Q: Now, will you tell this court why you know more or less that this is his daily income?
A: I know it because I experienced it and I only transferred this stall to him.
`

Q: And his income, you said, of 150 daily to 200 for the sale of pork and meat will you know what are
his family expenses being your brother and is living with you in the same place at the slaughter
house?
A: About P70.00 to P80.00 a day.
Q: And what are the other income that your brother derive (sic) aside from the meat stall after spending
these daily expenses?
A: None, sir.
Contrary to the assertion of BENECO, there is ample basis for the fixing of damages incurred
by the heirs of the deceased. Notwithstanding the failure of private respondent Bernardo to present
documentary evidence to support her claim, the unrebutted testimony of Rosita Noefe supplied
this deficiency. Indeed, there is no reason to doubt the veracity of Rosita's testimony considering
that she owned the very same stall that Jose was operating and managing before his death. Her
testimony on the earning capacity of Jose is enough to establish the rationale for the award.
The discrepancy between private respondent Bernardo's claims regarding her husband's
income as contained in the complaint, where she alleged that Jose was earning no less than P150.00
a day, and her testimony during trial that he earned P300.00 daily, could not obviate the fact that
at the time of his death Jose was earning a living as a meat vendor. Undoubtedly, his untimely
death deprived his family of his potential earnings. The allegation in the complaint fixing his
income at P150.00 a day was corroborated by the unqualified declaration of Rosita Noefe that he
was earning P150.00 to P200.00 a day. Obviously the bloated figure of P300.00 given by private
respondent Bernardo was an afterthought perhaps impelled by the prospect of being awarded a
greater sum.
We now fix Jose's daily gross income at P150.00 or his annual gross income at P54,000.00.
After deducting personal expenses, household and other family obligations, we can safely assume
that his annual net income at the time of death was P27,000.00 or 50% of his yearly gross earnings
of P54,000.00.xii
Accordingly, in determining the indemnity for the loss of earning capacity, we multiply the
life expectancy of the deceased as reduced to twenty-five (25) years by the annual net income of
P27,000.00 which gives us P675,000.00. Therefore, we deduce that his net earning capacity is
P675,000.00 computed as follows:xiii Net Earning Capacity = Life Expectancy x Gross Annual
Income - Necessary Living Expenses. Reduced to simpler form:
Net Earning = Life x Gross Annual - Necessary
Capacity Expectancy Income Living Expenses
= 2 (80 - 33) x (P54,000 - P27,000)
3
= 31-1/3
(reduced to 25) x 27,000 = 675,000.00
=P675,000.00 NET INCOME LOSS (as reduced)
Third. BENECO contends that exemplary damages should not be awarded as the amount
claimed was not specified in the body nor in the prayer of the complaint, in contravention of the
mandate in Rule 11 of the Interim Rules and Guidelines implementing BP 129 which requires the
`

amount of damages to be specifically alleged apparently for the purpose of computing the docket
fees.
BENECO's contention deserves no merit. The amount of exemplary damages need not be
pleaded in the complaint because the same cannot be predetermined. One can merely ask that it be
fixed by the court as the evidence may warrant and be awarded at its own discretion.xiv In fact, the
amount of exemplary damages need not be proved because its determination is contingent upon or
incidental to the amount of compensatory damages that may be awarded to the claimant. Moreover,
this Court in a number of occasions ruled that the amount of docket fees to be paid should be
computed on the basis of the amount of the damages stated in the complaint. Where subsequently
however the judgment awarded a claim not specified in the pleading, or if specified, the same was
left for the determination of the court, an additional filing fee therefor may be assessed and
considered to constitute a lien on the judgment.xv
We are not unaware of the principle laid down in Tacay v. Regional Trial Court of
Tagumxviwhere the trial court was ordered to either expunge the unspecified claim for exemplary
damages or allow the private respondent to amend the complaint within a reasonable time and
specify the amount thereof and then pay the corresponding docket fees. However, we prefer not to
expunge the claim for exemplary damages and pursue the Tacay lead, for to delete the claim for
exemplary damages would be to give premium to BENECO's gross negligence while to order the
amendment of the complaint would be to unjustly delay the proceedings and prolong further the
almost fifteen-year agony of the intended beneficiaries.
Exemplary damages are imposed by way of example or correction for the public good, in
addition to moral, temperate, liquidated or compensatory damages. It is awarded as a deterrent to
socially deleterious actions. In quasi-delict, exemplary damages are awarded when the act or
omission which caused injury is attended by gross negligence. xvii Gross negligence has been
defined as negligence characterized by the want of even slight care, acting or omitting to act in a
situation where there is duty to act, not inadvertently but willfully and intentionally, with a
conscious indifference to consequences in so far as other persons may be affected.xviii
In the instant case, there is a clear showing of BENECO's gross negligence when it failed to
detect, much less to repair, for an inexcusably long period of seven (7) years the uninsulated
connection which caused the death of Jose Bernardo. The gravity of its ineptitude was compounded
when it installed the service drop line way below the prescribed minimum vertical clearance of
fifteen (15) feet. Again, precautionary measures were not taken in wanton disregard of the possible
consequences. Under these circumstances, we find no reason to disturb the finding of respondent
court awarding exemplary damages to private respondent Bernardo in the amount of P20,000.00.
Finally, BENECO questions the grant of moral damages and attorney's fees on the same
ground of non-culpability. It is settled that moral damages are not intended to enrich the
complainant but to serve to obviate his/her spiritual suffering by reason of the culpable action of
the defendant. Its award is aimed at the restoration of the spiritual status quo ante, and it must be
commensurate to the suffering inflicted. As a result of the accidental death of Jose, his widow
Caridad and their three (3) minor children had to scrounge for a living in order to keep their heads
above water. Caridad had to depend on the generosity of her relatives which came intermittently
and far between and augment whatever she received from them with her meager income from her
small business. She must have agonized over the prospect of raising her three (3) small children
all by herself given her unstable financial condition. For the foregoing reasons, we sustain the
`

award of moral damages by respondent court except as to the amount thereof. In the instant case,
we are of the opinion that moral damages in the amount of P50,000.00 are more in accord with the
injury suffered by private respondent and her children.
As for attorney's fees, we find no legal nor factual basis to overturn the ruling of respondent
court on the matter; accordingly, the grant of P20,000.00 attorney's fees to private respondent
Bernardo is adopted.
WHEREFORE, the assailed Decision of the Court of Appeals dated 5 November 1996
ordering petitioner Benguet Electric Cooperative, Inc., to pay private respondent Caridad O.
Bernardo as guardian ad litem for the minors Jojo, Jeffrey and Jo-an, all surnamed Bernardo,
P20,000.00 as exemplary damages, another P20,000.00 for attorney's fees, and P50,000.00 as
indemnity for the death of Jose Bernardo, is AFFIRMED with the MODIFICATION that the
P864,000.00 as net income loss is reduced to P675,000.00 and the P100,000.00 as moral damages
is also reduced to P50,000.00.
Costs against petitioner.
SO ORDERED.

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

`

G.R. No. 156037 May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,

vs.
SEBASTIAN M. BAKING, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari1 assailing the Decision2 dated May
30, 2002 and Resolution dated November 5, 2002 of the Court of Appeals in CA-G.R. CV No. 57435,
entitled "Sebastian M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-appellant."

The facts are:

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a
medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his blood sugar
and Benalize tablets for his triglyceride.

Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the
prescribed medicines. However, the saleslady misread the prescription for Diamicron as a prescription
for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping tablet.

Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum
on three consecutive days –November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and November
8 at 7:30 a.m.

On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident.
The car he was driving collided with the car of one Josie Peralta. Respondent fell asleep while driving.
He could not remember anything about the collision nor felt its impact.

Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of
the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr. Sy was
shocked to find that what was sold to respondent was Dormicum, instead of the prescribed Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon
City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-20193.

After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:

WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders

judgment in favor of the plaintiff and against the defendant ordering the latter to pay mitigated damages
as follows:

1. ₱250,000.00 as moral damages;

2. ₱20,000.00 as attorney’s fees and litigation expenses;

`

3. plus ½% of the cost of the suit.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a
motion for reconsideration but it was denied in a Resolution dated November 5, 2002.

Hence, this petition.

Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing
jurisprudence.

Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be
denied.

The issues for our resolution are:

1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondent’s accident; and

2. Whether the award of moral damages, attorney’s fees, litigation expenses, and cost of the
suit is justified.

Article 2176 of the New Civil Code provides:

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

To sustain a claim based on the above provision, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.3

There is no dispute that respondent suffered damages.

It is generally recognized that the drugstore business is imbued with public interest. The health and
safety of the people will be put into jeopardy if drugstore employees will not exercise the highest
degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a question
of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.

Obviously, petitioner’s employee was grossly negligent in selling to respondent Dormicum, instead of
the prescribed Diamicron. Considering that a fatal mistake could be a matter of life and death for a
buying patient, the said employee should have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave respondent was indeed the one prescribed by his
physician. The care required must be commensurate with the danger involved, and the skill employed
must correspond with the superior knowledge of the business which the law demands.4 1awphi1.nét

Petitioner contends that the proximate cause of the accident was respondent’s negligence in driving
his car.

We disagree.
`

Proximate cause is defined as any cause that produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that the result would not have occurred otherwise.
Proximate cause is determined from the facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.5

Here, the vehicular accident could not have occurred had petitioner’s employee been careful in reading
Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that
respondent would fall asleep while driving his car, resulting in a collision.

Complementing Article 2176 is Article 2180 of the same Code which states:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.

xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed the diligence of a good father of a family to prevent damage.

It is thus clear that the employer of a negligent employee is liable for the damages caused by the latter.
When an injury is caused by the negligence of an employee, there instantly arises a presumption of
the law that there has been negligence on the part of the employer, either in the selection of his
employee or in the supervision over him, after such selection. The presumption, however, may be
rebutted by a clear showing on the part of the employer that he has exercised the care and diligence
of a good father of a family in the selection and supervision of his employee.6 Here, petitioner's failure
to prove that it exercised the due diligence of a good father of a family in the selection and supervision
of its employee will make it solidarily liable for damages caused by the latter.

As regards the award of moral damages, we hold the same to be in order. Moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury in the cases specified or analogous to those provided
in Article 2219 of the Civil Code.7

Respondent has adequately established the factual basis for the award of moral damages when he
testified that he suffered mental anguish and anxiety as a result of the accident caused by the
negligence of petitioner’s employee.

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.8 Taking into consideration the attending circumstances
`

here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the
amount of moral damages from ₱250,000.00 to ₱50,000.00 only.

In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant of
exemplary damages by way of example or correction for the public good. As mentioned earlier, the
drugstore business is affected with public interest. Petitioner should have exerted utmost diligence in
the selection and supervision of its employees. On the part of the employee concerned, she should
have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of
its business, petitioner must at all times maintain a high level of meticulousness. Therefore, an award
of exemplary damages in the amount of ₱25,000.00 is in order. 1aw phi 1.nét

On the matter of attorney’s fees and expenses of litigation, it is settled that the reasons or grounds for
the award thereof must be set forth in the decision of the court.9 Since the trial court’s decision did not
give the basis of the award, the same must be deleted. In Vibram Manufacturing Corporation v. Manila
Electric Company,10 we held:

Likewise, the award for attorney’s fees and litigation expenses should be deleted. Well-enshrined is
that "an award for attorney’s fees must be stated in the text of the court’s decision and not in the
dispositive portion only" (Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]).
This is also true with the litigation expenses where the body of the decision discussed nothing for its
basis.

WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals
in CA-G.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the award of moral
damages to respondent is reduced from ₱250,000.00 to ₱50,000.00; (b) petitioner is likewise ordered
to pay said respondent exemplary damages in the amount of ₱25,000.00; and (c) the award of
attorney’s fees and litigation expenses is deleted.

Costs against petitioner.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
`

SECOND DIVISION

G.R. No. 105410 July 25, 1994

PILIPINAS BANK, petitioner,

vs.
HON. COURT OF APPEALS AND FLORENCIO REYES, respondents.

Gella Reyes Danguilan & Associates for petitioner.

Santos V. Pampolina, Jr. for private respondent.

PUNO, J.:

This is a petition for review of the Decision of the respondent court1 in CA-G.R. CV No. 29524 dated
May 13, 1992 which ordered petitioner to pay the private respondent the sum of P50,000.00 as
moral damages, P25,000.00 as attorney's fees and cost of suit.

The facts as found both by the trial court2 and the respondent court are:

As payments for the purchased shoe materials and rubber shoes, Florencio Reyes
issued postdated checks to Winner Industrial Corporation for P20,927.00 and
Vicente Tui, for P11,419.50, with due dates on October 10 and 12, 1979,
respectively.

To cover the face value of the checks, plaintiff, on October 10, 1979, requested PCIB
Money Shop's manager Mike Potenciano to effect the withdrawal of P32,000.00 from
his savings account therein and have it deposited with his current account with
Pilipinas Bank (then Filman Bank), Biñan Branch. Roberto Santos was requested to
make the deposit.

In depositing in the name of FLORENCIO REYES, he inquired from the teller the
current account number of Florencio Reyes to complete the deposit slip he was
accomplishing. He was informed that it was "815" and so this was the same current
account number he placed on the deposit slip below the depositor's name
FLORENCIO REYES.

Nothing that the account number coincided with the name Florencio, Efren Alagasi,
then Current Account Bookkeeper of Pilipinas Bank, thought it was for Florencio
Amador who owned the listed account number. He, thus, posted the deposted in the
latter's account not noticing that the depositor's surname in the deposit slip was
REYES.

On October 11, 1979, the October 10, check in favor of Winner Industrial Corporation
was presented for payment. Since the ledger of Florencio Reyes indicated that his
account had only a balance of P4,078.43, it was dishonored and the payee was
advised to try it for next clearing.
`

On October 15, 1979, the October 10, 1979 check was redeposited but was again
dishonored. Likewise, the October 12, 1979 check in favor of Vicente Tui when
presented for payment on that same date met the same fate but was advised to try
the next clearing. Two days after the October 10 check was again dishonored, the
payee returned the same to Florencio Reyes and demanded a cash payment of its
face value which he did if only to save his name. The October 12, 1979 check was
redeposited on October 18, 1979, but again dishonored for the reason that the check
was drawn against insufficient fund.

Furious over the incident, he immediately proceeded to the bank and urged an
immediate verification of his account.

Upon verification, the bank noticed the error. The P32,000.00 deposit posted in the
account of Florencio Amador was immediately transferred to the account of Reyes
upon being cleared by Florencio Amador that he did not effect a deposit in the
amount of P32,000.00. The transfer having been effected, the bank then honored the
October 12, 1979, check (Exh. "C").

On the basis of these facts, the trial court ordered petitioner to pay to the private respondent: (1)
P200,000.00 as compensatory damages; (2) P100,000.00 as moral damages; (3) P25,000.00 as
attorney's fees, and (4) the costs of suit. On appeal to the respondent court, the judgment was
modified as aforestated.

In this petition for review, petitioner argues:

I. Respondent Court of Appeals erred on a matter of law, in not applying the first
sentence of Article 2179, New Civil Code, in view of its own finding that respondent
Reyes' own representative committed the mistake in writing down the correct account
number;

II. Respondent Court of Appeals erred, on a matter of law, in holding that respondent
Reyes has the right to recover moral damages and in awarding the amount of
P50,000.00, when there is no legal nor factual basis for it;

III. The Honorable Court of Appeals erred, on a matter of law, in holding petitioner
liable for attorney's fees in the amount of P20,000.00, when there is no legal nor
factual basis for it.

We find no merit in the petition.

First. For Article 21793 of the Civil Code to apply, it must be established that private respondent's
own negligence was the immediate and proximate cause of his injury. The concept of proximate
cause is well defined in our corpus of jurisprudence as "any cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the result complained of and
without which would not have occurred and from which it ought to have been forseen or reasonably
anticipated by a person of ordinary case that the injury complained of or some similar injury, would
result therefrom as a natural and probable consequence."4 In the case at bench, the proximate cause
of the injury is the negligence of petitioner's employee in erroneously posting the cash deposit of
private respondent in the name of another depositor who had a similar first name. As held by the trial
court:

xxx xxx xxx

`

Applying the test, the bank employee is, on that basis, deemed to have failed to
exercise the degree of care required in the performance of his duties. As earlier
stated, the bank employee posted the cash deposit in the account of Florencio
Amador from his assumption that the name Florencio appearing on the ledger
without, however, going through the full name, is the same Florencio stated in the
deposit slip. He should have continuously gone beyond mere assumption, which was
proven to be erroneous, and proceeded with clear certainty, considering the amount
involved and the repercussions it would create on the totality of the person notable of
which is the credit standing of the person involved should a mistake happen. The
checks issued by the plaintiff in the course of his business were dishonored by the
bank because the ledger of Florencio Reyes indicated a balance insufficient to cover
the face value of checks.

Second. In light of this negligence, the liability of petitioner for moral damages cannot be impugned.
So we held in Bank of the Philippine Islands vs. IAC, et al.5

The bank is not expected to be infallible but, as correctly observed by respondent

Appellate Court, in this instance, it must bear the blame for not discovering the
mistake of its teller despite the established procedure requiring the papers and bank
books to pass through a battery of bank personnel whose duty it is to check and
countercheck them for possible errors. Apparently, the officials and employees
tasked to do that did not perform their duties with due care, as may be gathered from
the testimony of the bank's lone witness, Antonio Enciso, who casually declared that
"the approving officer does not have to see the account numbers and all those
things. Those are very petty things for the approving manager to look into" (p. 78,
Record on Appeal). Unfortunately, it was a "petty thing," like the incorrect account
number that the bank teller wrote on the initial deposit slip for the newly-opened joint
current account of the Canlas spouses, that sparked this half-a-million-peso damage
suit against the bank.

While the bank's negligence may not have been attended with malice and bad faith,
nevertheless, it caused serious anxiety, embarrassment and humiliation to the
private respondents for which they are entitled to recover reasonable moral damages
(American Express International, Inc. IAC, 167 SCRA 209). The award of reasonable
attorney's fees is proper for the private respondent's were compelled to litigate to
protect their interest (Art. 2208, Civil Code). However, the absence of malice and bad
faith renders the award of exemplary damages improper (Globe Mackay Cable and
Radio Corp. vs. Court of Appeals, 176 SCRA 778).

IN VIEW WHEREOF, the petition is denied there being no reversible error in the Decision of the
respondent court. Cost against petitioner.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

`

[G.R. No. 130068. October 1, 1998]

FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF

APPELAS and PHILIPPINE PORTS AUTHORITY, respondents.

[G.R. No. 130150. October 1, 1998]

MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS

AUTHORITY and FAR EASTERN SHIPPING COMPANY,
respondents.

DECISION
REGALADO, J.:

These consolidated petitions for review on certiorari seek in unison to annul and set
aside the decisionxix of respondent Court of Appeals of November 15, 1996 and its
resolutionxx dated July 31, 1997 in CA-G.R. CV No. 24072, entitled Philippine Ports
Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and
Manila Pilots Association. Defendants-Appellants, which affirmed with modification the
judgment of the trial court holding the defendants-appellants therein solidarily liable for
damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court, thus --
x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR,
owned and operated by the Far Eastern Shipping Company (FESC for brevitys sake),
arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 oclock in
the morning. The vessel was assigned Berth 4 of the Manila International Port, as its
berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority to
supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the
appellant Manila Pilots Association (MPA for brevitys sake) to conduct docking
maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the
bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of
Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor
from the quarantine anchorage and proceeded to the Manila International Port. The sea
was calm and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo North Harbor)
one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was
already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov
relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2)
shackles were dropped. However, the anchor did not take hold as expected. The speed
`

of the vessel did not slacken. A commotion ensued between the crew members. A brief
conference ensued between Kavankov and the crew members. When Gavino inquired
what was all the commotion about, Kavankov assured Gavino that there was nothing of
it.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-
astern. Abellana, who was then on the pier apron, noticed that the vessel was
approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold.
Gavino thereafter gave the full-astern code. Before the right anchor and additional
shackles could be dropped, the bow of the vessel rammed into the apron of the pier
causing considerable damage to the pier. The vessel sustained damage too. (Exhibit 7-
Far Eastern Shipping). Kavankov filed his sea protest (Exhibit 1-Vessel). Gavino
submitted his report to the Chief Pilot (Exhibit 1-Pilot) who referred the report to the
Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise submitted his report of the
incident (Exhibit B).
Per contract and supplemental contract of the Philippine Ports Authority and the
contractor for the rehabilitation of the damaged pier, the same cost the Philippine Ports
Authority the amount of P1,126,132.25 (Exhibits D and E).xxi
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the
Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a complaint
for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the
Manila Pilots Association, docketed as Civil Case No. 83-14958,xxii praying that the
defendants therein be held jointly and severally liable to pay the plaintiff actual and
exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court
ordered the defendants therein jointly and severally to pay the PPA the amount of
P1,053,300.00 representing actual damages and the cost of suit.xxiii
The defendants appealed to the Court of Appeals and raised the following issues: (1)
Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for the
damage caused by the vessel to the pier, at the port of destination, for his negligence?
And (2) Would the owner of the vessel be liable likewise if the damage is caused by the
concurrent negligence of the master of vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court
a quo except that it found no employer-employee relationship existing between herein
private respondents Manila Pilots Association (MPA, for short) and Capt. Gavino.xxiv This
being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the
Civil Code, but on the provisions of Customs Administrative Order No. 15-65,xxv and
accordingly modified said decision of the trial court by holding MPA, along with its co-
defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from
Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount
equivalent to seventy-five percent (75%) of its prescribed reserve fund.xxvi
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the
decision of the Court of Appeals and both of them elevated their respective plaints to us
via separate petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second Division of this Court, FESC
imputed that the Court of Appeals seriously erred:
`

1. in not holding Senen C. Gavino and the Manila Pilots Association as the parties
solely responsible for the resulting damages sustained by the pier deliberately ignoring
the established jurisprudence on the matter.
2. in holding that the master had not exercised the required diligence demanded
from him by the circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the respondent Philippine Ports
Authority despite a strong and convincing evidence that the amount is clearly exorbitant
and unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its
answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila
Pilots' Association in the event that it be held liable.xxvii
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at
the time of the incident, it was a compulsory pilot, Capt. Gavino, who was in command
and had complete control in the navigation and docking of the vessel. It is the pilot who
supersedes the master for the time being in the command and navigation of a ship and
his orders must be obeyed in all respects connected with her navigation. Consequently,
he was solely responsible for the damage caused upon the pier apron, and not the owners
of the vessel. It claims that the master of the boat did not commit any act of negligence
when he failed to countermand or overrule the orders of the pilot because he did not see
any justifiable reason to do so. In other words, the master cannot be faulted for relying
absolutely on the competence of the compulsory pilot. If the master does not observe that
a compulsory pilot is incompetent or physically incapacitated, the master is justified in
relying on the pilot.xxviii
Respondent PPA, in its comment, predictably in full agreement with the ruling of
respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the
concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, *
shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained
by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov
beside him all the while on the bridge of the vessel, as the former took over the helm of
MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the
Manila International Port. Their concurrent negligence was the immediate and proximate
cause of the collision between the vessel and the pier - Capt. Gavino, for his negligence
in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt.
Kabankov, for failing to countermand the orders of the harbor pilot and to take over and
steer the vessel himself in the face of imminent danger, as well as for merely relying on
Capt. Gavino during the berthing procedure.xxix
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division
and later transferred to the Third Division, MPA, now as petitioner in this case, avers the
respondent court's errors consisted in disregarding and misinterpreting Customs
Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association
asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by
respondent court, is only a member, not an employee, thereof. There being no employer-
employee relationship, neither can MPA be held liable for any vicarious liability for the
`

respective exercise of profession by its members nor be considered a joint tortfeasor as

to be held jointly and severally liable.xxx It further argues that there was erroneous reliance
on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA,
instead of the provisions of the Civil Code on damages which, being a substantive law, is
higher in category than the aforesaid constitution and by-laws of a professional
organization or an administrative order which bears no provision classifying the nature of
the liability of MPA for the negligence its member pilots.xxxi
As for Capt. Gavino, counsel for MPA states that the former had retired from active
pilotage services since July 28, 1994 and has ceased to be a member of petitioner pilots'
association. He is not joined as a petitioner in this case since his whereabouts are
unknown.xxxii
FESC's comment thereto relied on the competence of the Court of Appeals in
construing provisions of law or administrative orders as basis for ascertaining the liability
of MPA, and expressed full accord with the appellate court's holding of solidary liability
among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of
Customs Administrative Order No. 15-65 clearly established MPA's solidary liability.xxxiii
On the other hand, public respondent PPA, likewise through representations by the
Solicitor General, assumes the same supportive stance it took in G.R. No. 130068 in
declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable
with Capt. Gavino and FESC for damages, and in its application to the fullest extent of
the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution
and by-laws which spell out the conditions of and govern their respective liabilities. These
provisions are clear and ambiguous as regards MPA's liability without need for
interpretation or construction. Although Customs Administrative Order No. 15-65 is a
mere regulation issued by an administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding and has the same statutory
force as any valid statute.xxxiv
Upon motionxxxv by FESC dated April 24, 1998 in G.R. No. 130150, said case was
consolidated with G.R. No. 130068.xxxvi
Prefatorily, on matters of compliance with procedural requirements, it must be
mentioned that the conduct of the respective counsel for FESC and PPA leaves much to
be desired, to the displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil Procedurexxxvii incorporates the former
Circular No. 28-91 which provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions filed with the Supreme
Court and the Court of Appeals, aside from the other requirements contained in pertinent
provisions of the Rules of Court therefor, with the end in view of preventing the filing of
multiple complaints involving the same issues in the Supreme Court, Court of Appeals or
different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a certification under oath
`

that he has not therefore commenced any other action involving the same issues in the
Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal
or agency; if there is such other action or proceeding, he must state the status of the
same; and if he should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom. (Italics
supplied.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically
requires that such petition shall contain a sworn certification against forum shopping as
provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its
associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068
and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with
the filing by FESC through counsel on August 22, 1997 of a verified motion for extension
of time to file its petition for thirty (30) days from August 28, 1997 or until September 27,
1997.xxxviii Said motion contained the following certification against forum shoppingxxxix
signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding
involving the same issues in the Supreme Court, the Court of Appeals, or any other
tribunal or agency; that to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency;
that if I/we should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency,
I/we undertake to report that fact within five (5) days therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26,
1997, this time bearing a "verification and certification against forum-shopping" executed
by one Teodoro P. Lopez on September 24, 1997,xl to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the
Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company,
the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review on
Certiorari.
3. That I have read the same and the allegations therein contained are true
and correct based on the records of this case.
`

4. That I certify that petitioner has not commenced any other action or
proceeding involving the same issues in the Supreme Court or Court of
Appeals, or any other tribunal or agency, that to the best of my own knowledge,
no such action or proceeding is pending in the Supreme Court, the Court of
Appeals or any other tribunal or agency, that I should thereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or agency, I undertake to
report the fact within five (5) days therefrom to this Honorable Court. (Italics
supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then
pending with the Third Division was duly filed on August 29, 1997 with a copy thereof
furnished on the same date by registered mail to counsel for FESC.xli Counsel of record
for MPA, Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully
revealed to the Court that--
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving the same
issues in his Honorable Court, the Court of Appeals or different Divisions thereof, or any
other tribunal or agency, but to the best of his knowledge, there is an action or proceeding
pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs.
Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file
Petition for Review by Certiorari filed sometime on August 18, 1997. If undersigned
counsel will come to know of any other pending action or claim filed or pending he
undertakes to report such fact within five (5) days to this Honorable Court.xlii (Italics
supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on
August 29, 1997 and taking judicial notice of the average period of time it takes local mail
to reach its destination, by reasonable estimation it would be fair to conclude that when
FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have
received a copy of the former and would then have knowledge of the pendency of the
other petition initially filed with the First Division. It was therefore incumbent upon FESC
to inform the Court of that fact through its certification against forum shopping. For failure
to make such disclosure, it would appear that the aforequoted certification accompanying
the petition in G.R. No. 130068 is defective and could have been a ground for dismissal
thereof.
Even assuming that FESC has not yet received its copy of MPA's petition at the time
it filed its own petition and executed said certification, its signatory did state "that if I should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report
the fact within five (5) days therefrom in this Honorable Court."xliii Scouring the records
page by page in this case, we find that no manifestation concordant with such undertaking
was then or at any other time thereafter ever filed by FESC nor was there any attempt to
bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge
of the existence of such other petition because FESC itself filed the motion for
consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del
`

Rosario, displays an unprofessional tendency of taking the Rules for granted, in this
instance exemplified by its pro forma compliance therewith but apparently without full
comprehension of and with less than faithful commitment to its undertakings to this Court
in the interest of just, speedy and orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith
to the court.xliv He is an officer of the court exercising a privilege which is indispensable in
the administration of justice.xlv Candidness, especially towards the courts, is essential for
the expeditious administration of justice. Courts are entitled to expect only complete
honesty from lawyers appearing and pleading before them.xlvi Candor in all dealings is the
very essence of honorable membership in the legal profession.xlvii More specifically, a
lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the
ends of justice.xlviii It behooves a lawyer, therefore, to exert every effort and consider it his
duty to assist in the speedy and efficient administration of justice.xlix Being an officer of the
court, a lawyer has a responsibility in the proper administration of justice. Like the court
itself, he is an instrument to advance its ends -- the speedy, efficient, impartial, correct
and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A
lawyer should not only help attain these objectives but should likewise avoid any unethical
or improper practices that impede, obstruct or prevent their realization, charged as he is
with the primary task of assisting in the speedy and efficient administration of justice.l
Sad to say, the members of said law firm sorely failed to observe their duties as
responsible members of the Bar. Their actuations are indicative of their predisposition to
take lightly the avowed duties of officers of the Court to promote respect for law and for
legal processes.li We cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997
Rules of Civil Procedure had just taken effect, the Court treated infractions of the new
Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it
would do well to remind all concerned that the penal provisions of Circular No. 28-91
which remain operative provides, inter alia:
3. Penalties.-
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular shall
likewise constitute contempt of court, without prejudice to the filing of criminal
action against the guilty party. The lawyer may also be subjected to disciplinary
proceedings.
It must be stressed that the certification against forum shopping ordained under the
Rules is to be executed by the petitioner, and not by counsel. Obviously it is the petitioner,
and not always the counsel whose professional services have been retained for a
particular case, who is in the best position to know whether he or it actually filed or caused
the filing of a petition in that case. Hence, a certification against forum shopping by
counsel is a defective certification. It is clearly equivalent to non-compliance with the
requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a
valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file
`

petition n G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally
deficient. But considering that it was a superfluity at that stage of the proceeding, it being
unnecessary to file such a certification with a mere motion for extension, we shall
disregard such error. Besides, the certification subsequently executed by Teodoro P.
Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies
earlier pointed out. In the same vein, we shall consider the verification signed in behalf of
MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance
inasmuch as it served the purpose of the Rules of informing the Court of the pendency of
another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient
administration of justice. They should be used to achieve such end and not to derail it.lii
Counsel for PPA did not make matters any better. Despite the fact that, save for the
Solicitor General at the time, the same legal team of the Office of the Solicitor General
(OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and
Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero
very much later in the proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully
acquainted with the facts and issues of the case, it took the OSG an inordinately and
almost unreasonably long period of time to file its comment, thus unduly delaying the
resolution of these cases. It took several changes of leadership in the OSG -- from
Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before the
comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days,
a warning that no further extensions shall be granted, and personal service on the Solicitor
General himself of the resolution requiring the filing of such comment before the OSG
indulged the Court with the long required comment on July 10, 1998.liii This, despite the
fact that said office was required to file its comment way back on November 12, 1997.liv A
closer scrutiny of the records likewise indicates that petitioner FESC was not even
furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy
thereof was inadvertently furnished to MPA which, from the point of view of G.R. No.
130068, was a non-party.lv The OSG fared slightly better in G.R. No. 130150 in that it took
only six (6) extensions, or a total of 180 days, before the comment was finally filed.lvi And
while it properly furnished petitioner MPA with a copy of its comment, it would have been
more desirable and expedient in this case to have furnished its therein co-respondent
FESC with a copy thereof, if only as a matter of professional courtesy.lvii
This undeniably dilatory disinclination of the OSG to seasonably file required
pleadings constitutes deplorable disservice to the tax-paying public and can only be
categorized as censurable inefficiency on the part of the government law office. This is
most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the initiative of filing
a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its
familiarity with the background of the case and if only to make its job easier by having to
prepare and file only one comment. It could not have been unaware of the pendency of
one or the other petition because, being counsel for respondent in both cases, petitioner
`

is required to furnish it with a copy of the petition under pain of dismissal of the petition
for failure otherwise.lviii
Besides, in G.R. 130068, it prefaces its discussions thus --
Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants
in the case before the respondent Court of Appeals, has taken a separate appeal from
the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and
entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far
Eastern Shipping Co., Respondents.lix
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal
from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled
"Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority."lx
We find here a lackadaisical attitude and complacency on the part of the OSG in the
handling of its cases and an almost reflexive propensity to move for countless extensions,
as if to test the patience of the Court, before favoring it with the timely submission of
required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective
parties in a case file the necessary pleadings. The OSG, be needlessly extending the
pendency of these cases through its numerous motions for extension, came very close
to exhausting this Court's forbearance and has regrettably fallen short of its duties as the
People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the
Code of Professional Responsibility apply with equal force on lawyers in government
service in the discharge of their official tasks.lxi These ethical duties are rendered even
more exacting as to them because, as government counsel, they have the added duty to
abide by the policy of the State to promote a high standard of ethics in public service. lxii
Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to
perform and discharge its duties with the highest degree of professionalism, intelligence
and skilllxiii and to extend prompt, courteous and adequate service to the public.lxiv
Now, on the merits of the case. After a judicious examination of the records of this
case, the pleadings filed, and the evidence presented by the parties in the two petitions,
we find no cogent reason to reverse and set aside the questioned decision. While not
entirely a case of first impression, we shall discuss the issues seriatim and, correlatively
by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for
validation and updating of well worn maritime jurisprudence. Thereby, we shall write finis
to the endless finger-pointing in this shipping mishap which has been stretched beyond
the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory
pilotage pursuant to Section 8, Article III of Philippine Ports Authority Administrative
Order No. 03-85,lxv which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a harbor and anchoring thereat,
or passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged
`

in coastwise and foreign trade shall be under compulsory pilotage. x x x

In case of compulsory pilotage, the respective duties and responsibilities of the
compulsory pilot and the master have been specified by the same regulation in this wise:
SEC. 11. Control of vessels and liability for damage. - On compulsory pilotage
grounds, the Harbor Pilot, providing the service to a vessel shall be responsible for the
damage caused to a vessel or to life and property at ports due to his negligence or fault.
He can only be absolved from liability if the accident is caused by force majeure or natural
calamities provided he has exercised prudence and extra diligence to prevent or
minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds
whereby he can countermand or overrule the order or command of the Harbor Pilot on
board. In such event, any damage caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall be the responsibility and liability of
the registered owner of the vessel concerned without prejudice to recourse against said
Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined
by competent authority in appropriate proceedings in the light of the facts and
circumstances of each particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The duties
and responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time
he assumes his work as a pilot thereof until he leaves it anchored or berthed
safely; Provided, however, that his responsibility shall cease at the moment the
Master neglects or refuses to carry out his order.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise
provided in Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel from the
time he assumes control thereof until he leaves it anchored free from shoal; Provided,
That his responsibility shall cease at the moment the master neglects or refuses to carry
out his instructions.
xxx xxx xxx
Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under their
control when requested to do so by the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA and
Capt. Gavino solely responsible for the damages caused to the pier. It avers that since
the vessel was under compulsory pilotage at the time with Capt. Gavino in command and
having exclusive control of the vessel during the docking maneuvers, then the latter
should be responsible for damages caused to the pier.lxvi It likewise holds the appellate
court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the
required diligence demanded by the circumstances.lxvii
`

We start our discussion of the successive issues bearing in mind the evidentiary rule
in American jurisprudence that there is a presumption of fault against a moving vessel
that strikes a stationary object such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to go forward and produce some
evidence on the presumptive matter. The moving vessel must show that it was without
fault or that the collision was occasioned by the fault of the stationary object or was the
result of inevitable accident. It has been held that such vessel must exhaust every
reasonable possibility which the circumstances admit and show that in each, they did all
that reasonable care required.lxviii In the absence of sufficient proof in rebuttal, the
presumption of fault attaches to a moving vessel which collides with a fixed object and
makes a prima facie case of fault against the vessel.lxix Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents
simply do not occur in the ordinary course of things unless the vessel has been
mismanaged in some way. It is not sufficient for the respondent to produce witnesses
who testify that as soon as the danger became apparent everything possible was done
to avoid an accident. The question remains, How then did the collision occur? The
answer must be either that, in spite of the testimony of the witnesses, what was done
was too little or too late or, if not, then the vessel was at fault for being in a position in
which an unavoidable collision would occur.lxx
The task, therefore, in these cases is to pinpoint who was negligent - the master of the
ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel
into or out of ports, or in certain waters. In a broad sense, the term "pilot" includes both
(1) those whose duty it is to guide vessels into or out of ports, or in particular waters and
(2) those entrusted with the navigation of vessels on the high seas. lxxi However, the term
"pilot" is more generally understood as a person taken on board at a particular place for
the purpose of conducting a ship through a river, road or channel, or from a port.lxxii
Under English and American authorities, generally speaking, the pilot supersedes the
master for the time being in the command and navigation of the ship, and his orders must
be obeyed in all matters connected with her navigation. He becomes the master pro hac
vice and should give all directions as to speed, course, stopping and reversing, anchoring,
towing and the like. And when a licensed pilot is employed in a place where pilotage is
compulsory, it is his duty to insist on having effective control of the vessel, or to decline
to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge
of the vessel, but is deemed merely the adviser of the master, who retains command and
control of the navigation even on localities where pilotage is compulsory. lxxiii
It is quite common for states and localities to provide for compulsory pilotage, and
safety laws have been enacted requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under local law. The purpose of these
laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels
seeking to enter or depart, and thus protect life and property from the dangers of
navigation.lxxiv
In line with such established doctrines, Chapter II of Customs Administrative Order
`

No. 15-65 prescribes the rules of compulsory pilotage in the covered pilotage districts,
among which is the Manila Pilotage District, viz. --
PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as well as
docking and undocking in any pier or shifting from one berth to another shall be
compulsory, except Government vessels and vessels of foreign governments entitled to
courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry
service between ports which shall be exempt from compulsory pilotage provisions of
these regulations: provided, however, that compulsory pilotage shall not apply in pilotage
districts whose optional pilotage is allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the
Manila International Port. Upon assuming such office as compulsory pilot, Capt. Gavino
is held to the universally accepted high standards of care and diligence required of a pilot,
whereby he assumes to have skill and knowledge in respect to navigation in the particular
waters over which his license extends superior to and more to be trusted than that of the
master.lxxv A pilot should have a thorough knowledge of general and local regulations and
physical conditions affecting the vessel in his charge and the waters for which he is
licensed, such as a particular harbor or river. He is not held to the highest possible degree
of skill and care, but must have and exercise the ordinary skill and care demanded by the
circumstances, and usually shown by an expert in his profession. Under extraordinary
circumstances, a pilot must exercise extraordinary care.lxxvi
In Atlee vs. The Northwestern Union Packet Company,lxxvii Mr. Justice Miller spelled
out in great detail the duties of a pilot:
x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal
knowledge of the topography through which he steers his vessel. In the long course of a
thousand miles in one of these rivers, he must be familiar with the appearance of the
shore on each side of the river as he goes along. Its banks, towns, its landings, its houses
and trees, are all landmarks by which he steers his vessel. The compass is of little use
to him. He must know where the navigable channel is, in its relation to all these external
objects, especially in the night. He must also be familiar with all dangers that are
permanently located in the course of the river, as sand-bars, snags, sunken rocks or
trees or abandoned vessels or barges. All this he must know and remember and avoid.
To do this, he must be constantly informed of the changes in the current of the river, of
the sand-bars newly made, of logs or snags, or other objects newly presented, against
which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But when we
consider the value of the lives and property committed to their control, for in this they are
absolute masters, the high compensation they receive, the care which Congress has
taken to secure by rigid and frequent examinations and renewal of licenses, this very
class of skill, we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to
measure up to such strict standard of care and diligence required of pilots in the
performance of their duties. Witness this testimony of Capt. Gavino:
Court:
`

You have testified before that the reason why the vessel bumped the pier was because
the anchor was not released immediately or as soon as you have given the order. Do you
remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that is that anchor was released
immediately at the time you gave the order, the incident would not have happened. Is that
correct?
A Yes, sir, but actually it was only a presumption on my part because there was a commotion
between the officers who are in charge of the dropping of the anchor and the captain. I
could not understand their language, it was in Russian, so I presumed the anchor was not
dropped on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident. What factor could have
caused the incident?
A Well, in this case now, because either the anchor was not dropped on time or the anchor
did not hold, that was the cause of the incident, your Honor.lxxviii
It is disconcertingly riddled with too much incertitude and manifests a seeming
indifference for the possibly injurious consequences his commands as pilot may have.
Prudence required that he, as pilot, should have made sure that his directions were
promptly and strictly followed. As correctly noted by the trial court -
Moreover, assuming that he did indeed give the command to drop the anchor on
time, as pilot he should have seen to it that the order was carried out, and he could have
done this in a number of ways, one of which was to inspect the bow of the vessel where
the anchor mechanism was installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly caused the delay in the
execution of the command. This account was reflected in the pilot's report prepared four
hours later, but Capt. Kavankov, while not admitting whether or not such a commotion
occurred, maintained that the command to drop anchor was followed "immediately and
precisely." Hence, the Court cannot give much weight or consideration to this portion of
Gavino's testimony."lxxix
An act may be negligent if it is done without the competence that a reasonable person
in the position of the actor would recognize as necessary to prevent it from creating an
unreasonable risk of harm to another.lxxx Those who undertake any work calling for special
skills are required not only to exercise reasonable care in what they do but also possess
a standard minimum of special knowledge and ability.lxxxi
Every man who offers his services to another, and is employed, assumes to exercise
in the employment such skills he possesses, with a reasonable degree of diligence. In all
these employments where peculiar skill is requisite, if one offers his services he is
`

understood as holding himself out to the public as possessing the degree of skill
commonly possessed by others in the same employment, and if his pretensions are
unfounded he commits a species of fraud on every man who employs him in reliance on
his public profession.lxxxii
Furthermore, there is an obligation on all persons to take the care which, under
ordinary circumstances of the case, a reasonable and prudent man would take, and the
omission of that care constitutes negligence.lxxxiii Generally, the degree of care required is
graduated according to the danger a person or property attendant upon the activity which
the actor pursues or the instrumentality which he uses. The greater the danger the greater
the degree of care required. What is ordinary under extraordinary of conditions is dictated
by those conditions; extraordinary risk demands extraordinary care. Similarly, the more
imminent the danger, the higher the degree of care.lxxxiv
We give our imprimatur to the bases for the conclusion of the Court of Appeals that
Capt. Gavino was indeed negligent in the performance of his duties:
xxx xxx xxx
x x x As can be gleaned from the logbook, Gavino ordered the left anchor and two
(2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel
stopped at 8:31 o'clock. By then, Gavino must have realized that the anchor did not hit
a hard object and was not clawed so as to reduce the momentum of the vessel. In point
of fact, the vessel continued travelling towards the pier at the same speed. Gavino failed
to react. At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel
from the port side but the momentum of the vessel was not contained. Still, Gavino did
not react. He did not even order the other anchor and two (2) more shackles dropped to
arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34
o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his
reaction was even (haphazard) because instead of arresting fully the momentum of the
vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino
another minute to order a "full-astern". By then, it was too late. The vessel's momentum
could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the
apron of the pier. Patently, Gavino miscalculated. He failed to react and undertake
adequate measures to arrest fully the momentum of the vessel after the anchor failed to
claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to
reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only
one (1) anchor would suffice and even when the anchor failed to claw into the seabed or
against a hard object in the seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet
from the pier is but a belated attempt to extricate himself from the quagmire of his own
insouciance and negligence. In sum, then, Appellants' claim that the incident was caused
by "force majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines, one may not
be a harbor pilot unless he passed the required examination and training conducted then
by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under
the Philippine Ports Authority under PPA Administrative Order 63-85. Paragraph XXXIX
of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held
responsible for the direction of the vessel from the time he assumes control thereof, until
`

he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the
moment the master neglects or refuse(s) to carry out his instructions." The overall
direction regarding the procedure for docking and undocking the vessel emanates from
the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities
and exercise reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by the
circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 463, 60 L ed.
384, 57 Am Jur. 2d 12age 418).lxxxv
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence in
manuevering the vessel must be attributed to Capt. Senen Gavino. He was an
experienced pilot and by this time should have long familiarized himself with the depth
of the port and the distance he could keep between the vessel and port in order to berth
safely.lxxxvi
The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no less
responsible for the allision. His unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot-is in sole command of the
ship and supersedes the master for the time being in the command and navigation of
lxxxvii

a ship and that he becomes master pro hac vice of a vessel piloted by him,lxxxviii there is
overwhelming authority to the effect that the master does not surrender his vessel to the
pilot and the pilot is not the master. The master is still in command of the vessel
notwithstanding the presence of a pilot. There are occasions when the master may and
should interfere and even displace the pilot, as when the pilot is obviously incompetent
or intoxicated and the circumstances may require the master to displace a compulsory
pilot because of incompetency or physical incapacity. If, however, the master does not
observe that a compulsory pilot is incompetent or physically incapacitated, the master is
justified in relying on the pilot, but not blindly.lxxxix
The master is not wholly absolved from his duties while a pilot is on board his vessel,
and may advise with or offer suggestions to him. He is still in command of the vessel,
except so far as her navigation is concerned, and must cause the ordinary work of the
vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is
bound to see that there is sufficient watch on deck, and that the men are attentive to their
duties, also that engines are stopped, towlines cast off, and the anchors clear and ready
to go at the pilot's order.xc
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the
discharge of his duties as master of the ship, leaving the entire docking procedure up to
the pilot, instead of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in
the harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent danger
to the vessel and to the pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
`

A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct'?
A No sir, I did not intervene up to the very moment when the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during
the docking?
A Yes sir, our ship touched the pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to understand that your ship
bumped the pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel,
to the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the
time he was trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand that there was nothing
irregular in the docking of the ship?
A Yes sir, during the initial period, of the docking, there was nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was there anything unusual or
abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold
the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was
not timely?
A I don't know the depth of this port but I think, if the anchor was dropped earlier and with
more shackles, there could not have been an incident.
Q So you could not precisely tell the court that the dropping of the anchor was timely because
you are not well aware of the seabed, is that correct?
A Yes sir, that, is right.
`

xxx xxx xxx

Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground
so much so that the vessel could not travel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship
from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did you not make any
protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2 shackles were also dropped
to hold the ship?
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an
experienced pilot and he should be more aware as to the depths of the harbor and the
ground and I was confident in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the vessel before the incident
happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the bridge, you also could read, is that
correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be informed of the movements of the
ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino would hear from the bridge, you could
also hear?
`

A That is right.
Q Now, you said that when the command to lower the anchor was given, it was obeyed, is
that right?
A This command was executed by the third mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties
of the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent
danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually happened, did you observe whether or not
the ship, before the actual incident, the ship was placed in imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that because you did not intervene
and because you believed that it was your duty to intervene when the vessel is placed in
imminent danger to which you did not observe any imminent danger thereof, you have not
intervened in any manner to the command of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuming that you disagreed with the pilot regarding the step being taken by the pilot in
maneuvering the vessel. whose command will prevail, in case of imminent danger to the
vessel?
A I did not consider the situation as having an imminent danger. I believed that the vessel
will dock alongside the pier.
Q You want us to understand that you did not see an imminent danger to your ship, is that
what you mean?
A Yes sir, up to the very last moment, I believed that there was no imminent danger.
Q Because of that, did you ever intervene in the command of the pilot?
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and
the cargo, is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very closely at the time he was
making his commands?
A I was close to him, I was hearing his command and being executed.
`

Q And that you were also alert for any possible mistakes he might commit in the maneuvering
of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino
made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would supersede his own order?
A In that case, I should take him away from his command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt. Gavino because you relied on
his knowledge, on his familiarity of the seabed and shoals and other surroundings or
conditions under the sea, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they did not take hold of the seabed,
you were alerted that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom
and it did not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken hold the seabed but not
done (sic), as you expected, you already were alerted that there was danger to the ship,
is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that
correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also
therefore agreed with him in his failure to take necessary precaution against the
`

eventuality that the anchor will not hold as expected?

Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the ground as expected?
A Yes sir, that is my opinion.xci
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment
of the situation:
Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel
was in imminent danger.
A No, at that time, the vessel was not in imminent danger, sir."xcii
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to
Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's command which should be followed-at
that moment until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his prerogative to
countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always
has the prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledge of the seabed which are
vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety
of the vessel rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and the Captain of the vessel in
the bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
`

In fact, the Master of the vessel testified here that he was all along in conformity with the
orders you gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can
you tell, if in the course of giving such normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the Master of the vessel did not obey
your command for the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no disagreement insofar as
the bringing of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the
course of the docking that the MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier. I think, the anchor
was not holding, so I immediately ordered to push the bow at a fourth quarter, at the back
of the vessel in order to swing the bow away from the pier and at the same time, I ordered
for a full astern of the engine."xciii
These conflicting reactions can only imply, at the very least, unmindful disregard or,
worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of docking
the vessel in the berthing space, it is undisputed that the master of the vessel had the
corresponding duty to countermand any of the orders made by the pilot, aid even
maneuver the vessel himself, in case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughout the
man(eu)vering procedures he did not notice anything was going wrong, and even
observed that the order given to drop the anchor, was done at the proper time. He even
ventured the opinion that the accident occurred because the anchor failed to take hold
but that this did not alarm him because there was still time to drop a second anchor.
Under normal circumstances, the above-mentioned facts would have caused the
master of a vessel to take charge of the situation and see to the man(eu)vering of the
vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this
time was proven ill-equipped to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov
was no less responsible for as master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move the latter made, as well as the
vessel's response to each of the commands. His choice to rely blindly upon the pilot's
skills, to the point that despite being appraised of a notice of alert he continued to
relinquish control of the vessel to Gavino, shows indubitably that he was not performing
his duties with the diligence required of him and therefore may be charged with
negligence along with defendant Gavino.xciv
`

As correctly affirmed by the Court of Appeals -

We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two
years before the incident. When Gavino was (in) the command of the vessel, Kavankov
was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-
officers of the vessel concerned. He was thus fully aware of the docking maneuvers and
procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware
of the bulk and size of the vessel and its cargo as well as the weight of the vessel.
Kavankov categorically admitted that, when the anchor and two (2) shackles were
dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in
the seabed. The momentum of the vessel was not arrested. The use of the two (2)
tugboats was insufficient. The momentum of the vessel, although a little bit arrested,
continued (sic) the vessel going straightforward with its bow towards the port (Exhibit "A-
1"). There was thus a need for the vessel to move "full-astern" and to drop the other
anchor with another shackle or two '(2), for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as Gavino gave mere "half-astern"
order, Kavankov supinely stood by. The vessel was already about twenty (20) meters
away from the pier when Gavino gave the 'full-astern" order. Even then, Kavankov did
nothing to prevent the vessel from hitting the pier simply because he relied on the
competence and plan of Gavino. While the "full-astern" maneuver momentarily arrested
the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely
beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then,
Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to prove the
unseaworthiness of the vessel. It has been held that the incompetence of the navigator,
the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince
versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC
is likewise liable for the damage sustained by the Appellee."xcv
We find strong and well-reasoned support in time-tested American maritime
jurisprudence, on which much of our laws and jurisprudence on the matter are based, for
the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov
negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in
The Steamship China vs. Walsh,xcvi that it is the duty of the master to interfere in cases of
the pilot's intoxication or manifest incapacity, in cases of danger which he does not
foresee, and in all cases of great necessity. The master has the same power to displace
the pilot that he has to remove any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically
ruled that:
Nor are we satisfied with the conduct of the master in leaving the pilot in sole charge
of the vessel. While the pilot doubtless supersedes the master for the time being in the
command and navigation of the ship, and his orders must be obeyed in all matters
connected with her navigation, the master is not wholly absolved from his duties while
the pilot is on board, and may advise with him, and even displace him in case he is
`

intoxicated or manifestly incompetent. He is still in command of the vessel, except so far

as her navigation is concerned, and bound to see that there is a sufficient watch on deck,
and that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty of the master to prevent
accident, and not to abandon the vessel entirely to the pilot; but that there are certain
duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of
the owners. x x x that in well conducted ships the master does not regard the presence
of a duly licensed pilot in compulsory pilot waters as freeing him from every obligation to
attend to the safety of the vessel; but that, while the master sees that his officers and
crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the
navigation of the vessel, and, when exceptional circumstances exist, not only to urge
upon the pilot to use every precaution, but to insist upon, such being taken."xcvii (Italics for
emphasis.)
In Jure vs. United Fruit Co.,xcviii which, like the present petitions, involved compulsory
pilotage, with a similar scenario where at and prior to the time of injury, the vessel was in
the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court
therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot,
who is required by law to be accepted, is in discharge of his functions. x x x It is the duty
of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in
cases of danger which he does not foresee, and in all cases of great necessity . The
master has the same power to displace the pilot that he has to remove any subordinate
officer of the vessel. He may exercise it, or not, according to his discretion. There was
evidence to support findings that plaintiff's injury was due to the negligent operation of
the Atenas, and that the master of that vessel was negligent in failing to take action to
avoid endangering a vessel situated as the City of Canton was and persons or property
thereon.
A phase of the evidence furnished support for the inferences x x x that he negligently
failed to suggest to the pilot the danger which was disclosed, and means of avoiding
such danger; and that the master's negligence in failing to give timely admonition to the
pilot proximately contributed to the injury complained of. We are of opinion that the
evidence mentioned tended to prove conduct of the pilot, known to the master, giving
rise to a case of danger or great necessity, calling for the intervention of the master. A
master of a vessel is not Without fault in acquiescing in conduct of a pilot which involves
apparent and avoidable danger, whether such danger is to the vessel upon which the
pilot is, or to another vessel, or persons or property thereon or on shore. (Italics ours.)
Still in another case involving a nearly identical setting, the captain of a vessel alongside
the compulsory pilot was deemed to be negligent, since, in the words of the court, "he
was in a position to exercise his superior authority if he had deemed the speed excessive
on the occasion in question. I think it was clearly negligent of him not to have recognized
the danger to any craft moored at Gravell Dock and that he should have directed the pilot
to reduce his speed as required by the local governmental regulations. His failure
amounted to negligence and renders the respondent liable." xcix (Italics supplied.) Though
a compulsory pilot might be regarded as an independent contractor, he is at all times
subject to the ultimate control of the ship's master.c
In sum, where a compulsory pilot is in charge of a ship, the master being required to
`

permit him to navigate it, if the master observes that the pilot is incompetent or physically
incapable, then it is the duty of the master to refuse to permit the pilot to act. But if no
such reasons are present, then the master is justified in relying upon the pilot, but not
blindly. Under the circumstances of this case, if a situation arose where the master,
exercising that reasonable vigilance which the master of a ship should exercise,
observed, or should have observed, that the pilot was so navigating the vessel that she
was going, or was likely to go, into danger, and there was in the exercise of reasonable
care and vigilance an opportunity for the master to intervene so as to save the ship from
danger, the master should have acted accordingly. ci The master of a vessel must exercise
a degree of vigilance commensurate with the circumstances.cii
Inasmuch as the matter of negligence is a question of fact,ciii we defer to the findings
of the trial court, especially as this is affirmed by the Court of Appeals.civ But even beyond
that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact
that he failed to act when the perilous situation should have spurred him into quick and
decisive action as master of the ship. In the face of imminent or actual danger, he did not
have to wait for the happenstance to occur before countermanding or overruling the pilot.
By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this
is precisely the reason why he decided not to countermand any of the latter's orders.
Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full
agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or
default to the owners of the vessel, and to third parties for damages sustained in a
collision. Such negligence of the pilot in the performance of duty constitutes a maritime
tort.cv At common law, a shipowner is not liable for injuries inflicted exclusively by the
negligence of a pilot accepted by a vessel compulsorily.cvi The exemption from liability for
such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a
pilot is responsible only for his own personal negligence, he cannot be held accountable
for damages proximately caused by the default of others,cvii or, if there be anything which
concurred with the fault of the pilot in producing the accident, the vessel master and
owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the
party claiming benefit of the exemption from liability. It must be shown affirmatively that
the pilot was at fault, and that there was no fault on the part of the officers or crew, which
might have been conducive to the damage. The fact that the law compelled the master to
take the pilot does not exonerate the vessel from liability. The parties who suffer are
entitled to have their remedy against the vessel that occasioned the damage, and are not
under necessity to look to the pilot from whom redress is not always had for
compensation. The owners of the vessel are responsible to the injured party for the acts
of the pilot, and they must be left to recover the amount as well as they can against him.
It cannot be maintained that the circumstance of having a pilot on board, and acting in
conformity to his directions operate as a discharge of responsibility of the owners.cviii
Except insofar as their liability is limited or exempted by statute, the vessel or her owner
are liable for all damages caused by the negligence or other wrongs of the owners or
those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the
sense that the owner or master of the vessel are bound to accept him, but is employed
`

voluntarily, the owners of the vessel are, all the more, liable for his negligent act.cix
In the United States, the owners of a vessel are not personally liable for the negligent
acts of a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory
pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however,
by the provisions of the statute the pilot is compulsory only in the sense that his fee must
be paid, and is not in compulsory charge of the vessel, there is no exemption from liability.
Even though the pilot is compulsory, if his negligence was not the sole cause of the injury,
but the negligence of the master or crew contributed thereto, the owners are liable. cx But
the liability of the ship in rem does not release the pilot from the consequences of his own
negligence.cxi The rationale for this rule is that the master is not entirely absolved of
responsibility with respect to navigation when a compulsory pilot is in charge.cxii
By way of validation and in light of the aforecited guidepost rulings in American
maritime cases, we declare that our rulings during the early years of this century in City
of Manila vs. Gambe, cxiii China Navigation Co., Ltd. vs. Vidal,cxiv and Yap Tico & Co. vs.
Anderson, et al.cxv have withstood the proverbial test of time and remain good and relevant
case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete
control of a vessel, and not the owners, must be held responsible for an accident which
was solely the result of the mistake of the pilot in not giving proper orders, and which did
not result from the failure of the owners to equip the vessel with the most modern and
improved machinery. In China Navigation Co., the pilot deviated from the ordinary and
safe course, without heeding the warnings of the ship captain. It was this careless
deviation that caused the vessel to collide with a pinnacle rock which, though uncharted,
was known to pilots and local navigators. Obviously, the captain was blameless. It was
the negligence of the pilot alone which was the proximate cause of the collision. The Court
could not but then rule that -
The pilot in the case at bar having deviated from the usual and ordinary course
followed by navigators in passing through the strait in question, without a substantial
reason, was guilty of negligence, and that negligence having been the proximate cause
of the damages, he is liable for such damages as usually and naturally flow therefrom. x
x x.
x x x (T)he defendant should have known of the existence and location of the rock
upon which the vessel struck while under his control and management. x x x.
Consistent with the pronouncements in these two earlier cases, but on a slightly
different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the
accident where the order's of the pilot in the handling of the ship were disregarded by the
officers and crew of the ship. According to the Court, a pilot is "x x x responsible for a full
knowledge of the channel and the navigation only so far as he can accomplish it through
the officers and crew of the ship, and I don't see that he can be held responsible for
damage when the evidence shows, as it does in this case, that the officers and crew of
the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and
the master of the vessel to be concurrently negligent and thus share the blame for the
resulting damage as Joint tortfeasors,cxvi but only under the circumstances obtaining in and
demonstrated by the instant petitions.
`

It may be said, as a general rule, that negligence in order to render a person liable
need not be the sole cause of an injury. It is sufficient that his negligence, concurring with
one or more efficient causes other than plaintiff's, is the proximate cause of the injury.
Accordingly, where several causes combine to produce injuries, a person is not relieved
from liability because he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that such cause is not attributable to
the person injured. It is no defense to one of the concurrent tortfeasors that the injury
would not have resulted from his negligence alone, without the negligence or wrongful
acts of the other concurrent tortfeasor.cxvii Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of the causes and recovery may be
had against any or all of the responsible persons although under the circumstances of the
case, it may appear that one of them was more culpable, and that the duty owed by them
to the injured person was not the same. No actor's negligence ceases to be a proximate
cause merely because it does not exceed the negligence of other actors. Each wrongdoer
is responsible for the entire result and is liable as though his acts were the sole cause of
the injury.cxviii
There is no contribution between joint tortfeasors whose liability is solidary since both
of them are liable for the total damage. Where the concurrent or successive negligent
acts or omissions of two or more persons, although acting independently, are in
combination the direct and proximate cause of a single injury to a third person, it is
impossible to determine in what proportion each contributed to the injury and either of
them is responsible for the whole injury. Where their concurring negligence resulted in
injury or damage to a third party, they become joint tortfeasors and are solidarity liable for
the resulting damage under Article 2194cxix of the Civil Code.cxx
As for the amount of damages awarded by the trial court, we find the same to be
reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already
included in this -P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was
damaged as well as the corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That
was why the contract was decreased, the real amount was P1,124,627.40 and the final
one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
`

A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair
and reconstruction in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for
the 2 year period that the damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was
closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six piles damaged by the accident, but
that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain
to us why there was change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at
the same point. You have to redesign the driving of the piles. We cannot drive the piles at
the same point where the piles are broken or damaged or pulled out. We have to redesign,
and you will note that in the reconstruction, we redesigned such that it necessitated 8
piles.
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity. The
area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not
that have sustained the same load?
A It will not suffice, sir."cxxi
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be awarded to plaintiff, the Court
finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur
best expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21
SCRA 279) establishes the presumption that in the ordinary course of events the
ramming of the dock would not have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port construction
price. The new structure constructed not only replaced the damaged one but was built
of stronger materials to forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00
which represents actual damages caused by the damage to Berth 4 of the Manila
International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila
Pilots Association are solidarity liable to pay this amount to plaintiff.cxxii
`

The Solicitor General rightly commented that the adjudicated amount of damages
represents the proportional cost of repair and rehabilitation of the damaged section of the
pier.cxxiii
Except insofar as their liability is limited or exempted by statute, the vessel or her
owners are liable for all damages caused by the negligence or other wrongs of the owners
or those in charge of the vessel. As a general rule, the owners or those in possession and
control of a vessel and the vessel are liable for all natural and proximate damages caused
to persons or property by reason of her negligent management or navigation.cxxiv
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is
obtuse, not only because it appears to be a mere afterthought, being tardily raised only
in this petition, but also because there is no allegation or evidence on record about Berth
No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international
standards. There was, therefore, no error on the part of the Court of Appeals in dismissing
FESC's counterclaim.

II. G.R. No. 130150

This consolidated case treats on whether the Court of Appeals erred in holding MPA
jointly and solidarity liable with its member pilot, Capt. Gavino, in the absence of
employer-employee relationship and in applying Customs Administrative Order No. 15-
65, as basis for the adjudged solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
"PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there shall be
created and maintained by the pilots or pilots' association, in the manner hereinafter
prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of
paying claims for damages to vessels or property caused through acts or omissions of
its members while rendered in compulsory pilotage service. In Manila, the reserve fund
shall be P2,000.00 for each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable under these regulations for
damage to any vessel, or other property, resulting from acts of a member of an
association in the actual performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being understood that if the
association is held liable for an amount greater than the amount above-stated, the
excess shall be paid by the personal funds of the member concerned.
PAR. XXXI.-- If a payment is made from the reserve fund of an association on
account of damages caused by a member thereof, and he shall have been found at fault,
such member shall reimburse the association in the amount so paid as soon as
practicable; and for this purpose, not less than twenty-five per centum of his dividends
shall be retained each month until the full amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve any pilots' association or
members thereof, individually or collectively, from civil responsibility for damages to life
or property resulting from the acts of members in the performance of their duties.
`

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which
timely amended this applicable maritime regulation, state:

Article IV

SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall organize
themselves into a Pilots' Association or firm, the members of which shall promulgate their
own By-Laws not in conflict with the rules and regulations promulgated by the Authority.
These By-Laws shall be submitted not later than one (1) month after the organization of
the Pilots' Association for approval by the General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for approval.
SEC. 25. Indemnity Insurance and Reserve Fund--
a) Each Pilots' Association shall collectively insure its membership at
the rate of P50,000.00 each member to cover in whole or in part
any liability arising from any accident resulting in damage to
vessel(s), port facilities and other properties and/or injury to
persons or death which any member may have caused in the
course of his performance of pilotage duties. x x x.
b) The Pilotage Association shall likewise set up and maintain a
reserve fund which shall answer for any part of the liability referred
to in the immediately preceding paragraph which is left unsatisfied
by the insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his own
account an amount of P4,000.00 (P6,000.00 in the Manila
Pilotage District) to the reserve fund. This fund shall not be
considered part of the capital of the Association nor charged
as an expense thereof.
2) Seventy-five percent (75%) of the reserve fund shall be set
aside for use, in the payment of damages referred to above
incurred in the actual performance of pilots' duties and the
excess shall be paid from the personal funds of the member
concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association
on account of damage caused by a member thereof who is
found at fault, he shall reimburse the Association in the
amount so paid as soon as practicable; and for this purpose,
not less than twenty-five percentum (25%) of his dividend
shall be retained each month until the full amount has been
returned to the reserve fund. Thereafter, the pilot involved
shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed
in the preceding paragraph, the ten percentum (10%) and
the interest withheld from the shares of the other pilots in
`

accordance with paragraph (4) hereof shall be returned to

them.
c) Liability of Pilots' Association -- Nothing in these regulations shall
relieve any Pilots' Association or members thereof, individually or
collectively, from any civil, administrative and/or criminal
responsibility for damages to life or property resulting from the
individual acts of its members as well as those of the
Association's employees and crew in the performance of their
duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the
part of FESC, MPA and Capt. Gavino, correctly based MPA's liability not on the concept
of employer-employee relationship between Capt. Gavino and itself, but on the provisions
of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court
a quo, the Appellant Gavino was not and has never been an employee of the MPA but
was only a member thereof. The Court a quo, it is noteworthy,, did not state the factual
basis on which it anchored its finding that Gavino was the employee of MPA. We are in
accord with MPA's pose. Case law teaches Us that, for an employer-employee
relationship to exist the confluence of the following elements must be established: (1)
selection and engagement of employees; (2) the payment of wages; (3) the power of
dismissal; (4) the employer's power to control the employees with respect to the means
and method by which the work is to be performed (Ruga versus NLRC, 181SCRA 266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180 of the New Civil
Code as erroneously found and declared by the Court a quo but under the provisions of
Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the
MPA."cxxv
There being no employer-employee relationship, clearly Article 2180cxxvi of the Civil
Code is inapplicable since there is no vicarious liability of an employer to speak of. It is
so stated in American law, as follows:
The well-established rule is that pilot associations are immune to vicarious liability
for the tort of their members. They are not the employer of their members and exercise
no control over them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents for the association or for
each other. Pilots' associations are also not liable for negligently assuring, the
competence of their members because as professional associations they made no
guarantee of the professional conduct of their members to the general public.cxxvii
Where under local statutes and regulations, pilot associations lack the necessary
legal incidents of responsibility, they have been held not liable for damages caused by
the default of a member pilot.cxxviii Whether or not the members of a pilots' association are
in legal effect a copartnership depends wholly on the powers and duties of the members
in relation to one another under the provisions of the governing statutes and regulations.
The relation of a pilot to his association is not that of a servant to the master, but of an
associate assisting and participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual member depend largely upon the
`

constitution, articles or by-laws of the association, subject to appropriate government

regulations.cxxix
No reliance can be placed by MPA on the cited American rulings as to immunity from
liability of a pilots' association in light of existing positive regulation under Philippine law.
The Court of Appeals properly applied the clear and unequivocal provisions of Customs
Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of
the non-existence of employer-employee relationship between MPA and Capt. Gavino
precludes the application of Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65 does not categorically characterize or
label MPA's liability as solidary in nature. Nevertheless, a careful reading and proper
analysis of the correlated provisions lead to the conclusion that MPA is solidarity liable
for the negligence of its member pilots, without prejudice to subsequent reimbursement
from the pilot at fault.
Article 1207 of the Civil Code provides that there is solidary liability only when the
obligation expressly so states, or when the law or the nature of the obligation requires
solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing
rule has the force and effect of law, can validly provide for solidary liability. We note the
Solicitor General's comment hereon, to wit:
x x x Customs Administrative Order No. 15-65 may be a mere rule and regulation
issued by an administrative agency pursuant to a delegated authority to fix "the details"
in the execution or enforcement of a policy set out in the law itself. Nonetheless, said
administrative order, which adds to the procedural or enforcing provisions of substantive
law, is legally binding and receives the same statutory force upon going into effect. In
that sense, it has equal, not lower, statutory force and effect as a regular statute passed
by the legislature."cxxx
MPA's prayer for modification of the appellate court's decision under review by
exculpating petitioner MPA "from liability beyond seventy-five percent (75%) of Reserve
Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs
Administrative Order No. 15-65 is in fact limited to seventy-five percent (75%) of its
prescribed reserve fund, any amount of liability beyond that being for the personal
account of the erring pilot and subject to reimbursement in case of a finding of fault by the
member concerned. This is clarified by the Solicitor General:
Moreover, contrary to petitioners pretensions, the provisions of Customs
Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots'
association to an absurdly small amount of seventy-five per centum (75%) of the member
pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve
fund required to be maintained by the pilots' association to answer (for) whatever liability
arising from the tortious act of its members. And even if the association is held liable for
an amount greater than the reserve fund, the association may not resist the liability by
claiming to be liable only up to seventy-five per centum (75%) of the reserve fund
because in such instance it has the right to be reimbursed by the offending member pilot
for the excess."cxxxi
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review
are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto.
`

Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its
associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the
same or similar acts of heedless disregard of its undertakings under the Rules shall be
dealt with more severely.
The original members of the legal team of the Office of the Solicitor General assigned
to this case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis
F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts
of unduly delaying proceedings due to delayed filing of required pleadings shall also be
dealt with more stringently.
The Solicitor General is DIRECTED to look into the circumstances of this case and
to adopt provident measures to avoid a repetition of this incident and which would ensure
prompt compliance with orders of this Court regarding the timely filing of requisite
pleadings, in the interest of just, speedy and orderly administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named
herein in the Office of the Bar Confidant.
SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez,
Quisumbing and Purisima, JJ., concur.
Narvasa, C.J., and Mendoza, J., on leave.
`

CONSOLACION GABETO, in her own right and as guardian ad litem of her three children,
plaintiff-appellee,
vs.
AGATON ARANETA, defendant-appellant.

Jose E. Locsin for appellant.

Block, Johnston and Greenbaum for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Iloilo by Consolacion Gabeto, in her own
right as widow of Proceso Gayetano, and as guardian ad litem of the three children, Conchita
Gayetano, Rosita Gayetano, and Fermin Gayetano, for the purpose of recovering damages incurred
by the plaintiff as a result of the death of the said Proceso Gayetano, supposedly cause by the wrongful
act of the defendant Agaton Araneta. Upon hearing the evidence, his Honor, Judge L. M. Southworth,
awarded damages to the plaintiff in the amount of P3,000, from which judgment the defendant
appealed.

It appears in evidence that on August 4, 1918. Basilio Ilano and Proceso Gayetano took a carromata
near Plaza Gay, in the City of Iloilo, with a view to going to a cockpit on Calle Ledesma in the same
City. When the driver of the carromata had turned his horse and started in the direction indicated, the
defendant, Agaton Araneta, stepped out into the street, and laying his hands on the reins, stopped the
horse, at the same time protesting to the driver that he himself had called this carromata first. The
driver, one Julio Pagnaya, replied to the effect that he had not heard or seen the call of Araneta, and
that he had taken up the two passengers then in the carromata as the first who had offered
employment. At or about the same time Pagnaya pulled on the reins of the bridle to free the horse
from the control of Agaton Araneta, in order that the vehicle might pass on. Owing, however, to the
looseness of the bridle on the horse's head or to the rottenness of the material of which it was made,
the bit came out of the horse's mouth; and it became necessary for the driver to get out, which he did,
in order to find the bridle. The horse was then pulled over to near the curb, by one or the other — it
makes no difference which — and Pagnaya tried to fix the bridle.

While he was thus engaged, the horse, being free from the control of the bit, became disturbed and
moved forward, in doing which he pulled one of the wheels of the carromata up on the sidewalk and
pushed Julio Pagnaya over. After going a few years further the side of the carromata struck a police
telephone box which was fixed to a post on the sidewalk, upon which the box came down with a crash
and frightened the horse to such an extent that he set out at full speed up the street.

Meanwhile one of the passengers, to wit. Basilio Ilano, had alighted while the carromata was as yet
alongside the sidewalk; but the other, Proceso Gayetano, had unfortunately retained his seat, and
after the runaway horse had proceeded up the street to a point in front of the Mission Hospital, the
said Gayetano jumped or fell from the rig, and in so doing received injuries from which he soon died.

As to the facts above stated the evidence cannot be said to be materially in conflict; but there is decided
conflict upon the point of the exact relation of the defendant Agaton Araneta, to the runaway. The
evidence for the plaintiff on this point consists chiefly of the testimony of Julio Pagnaya and of Basilio
Ilano. They both say that while yet in the middle of the street, the defendant jerked the bridle, which
caused the bit to come out of the horse's mouth, and Julio says that at that juncture the throat latch of
the bridle was broken. Be this as it may, we are of the opinion that the mere fact that the defendant
`

interfered with the carromata by stopping the horse in the manner stated would not make him liable
for the death of Proceso Gayetano; because it is admitted by Julio Pagnaya that he afterwards got out
of the carromata and went to the horse's head to fix the bridle. The evidence is furthermore convincing
to the effect that, after Julio Pagnaya alighted, the horse was conducted to the curb and that an
appreciable interval of time elapsed — same witnesses say several minutes — before the horse
started on his career up the street. 1awph!l.net

It is therefore evident that the stopping of the rig by Agaton Araneta in the middle of the street was too
remote from the accident that presently ensued to be considered the legal or proximate cause thereof.
Moreover, by getting out and taking his post at the head of the horse, the driver was the person
primarily responsible for the control of the animal, and the defendant cannot be charged with liability
for the accident resulting from the action of the horse thereafter.

Julio Pagnaya testifies to one fact which, if it were fully accredited, would possibly put a different
complexion on the case; for he says that when the horse was pulled over to the curb, the defendant,
by way of emphasizing his verbal denunciation of Pagnaya, gesticulated with one of his arms and
incidentally brought his hand down on the horse's nose. This, according to Pagnaya, is what made the
horse run away. There is no other witness who testifies to this; and it is noteworthy that Basilio Ilano
does not mention it. A decided preponderance of the evidence in our opinion is against it.

The evidence indicates that the bridle was old, and the leather of which it was made was probably so
weak as to be easily broken. Julio Pagnaya had a natural interest in refuting this fact, as well as in
exculpating himself in other respects; and we are of the opinion that the several witnesses who testified
for the defendant gave a more credible account of the affair than the witnesses for the plaintiff.
According to the witnesses for the defendant, it was Julio who jerked the rein, thereby causing the bit
it come out of the horse's mouth; and they say that Julio, after alighting, led the horse over to the curb,
and proceeded to fix the bridle; and that in so doing the bridle was slipped entirely off, when the horse,
feeling himself free from control, started to go away as previously stated.

Upon the whole we are constrained to hold that the defendant is not legally responsible for the death
of Proceso Gayetano; and though reluctant to interfere with the findings of fact of a trial court when
there is a conflict of testimony, the evidence in this case so clearly preponderates in favor of the
defendant, that we have no recourse but to reverse the judgment.

The judgment will therefore be reversed, and the defendant will be absolved from the complaint; and
it is so ordered, without express finding as to costs of either instance. So ordered.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.

`

[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.

DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, 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; P784 as actual damages;
chan roblesvirtualawlibrary P2,000 as moral and exemplary damages;
chan roblesvirtualawlibrary and P3,000 as
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attorney’s fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight
modification by reducing the attorney’s fees from P3,000 to P1,000 with costs. The electric company has
appealed said decision to us.

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: chanroblesvirtuallawlibra

ry

“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 Peñaloza’s 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.

“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.

“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 so Appellants 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 ‘media agua’ was constructed the owner was given a final permit of
occupancy of the house . cralaw

“ The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to
cralaw

Appellant, no insulation that could have rendered it safe, first, because there is no insulation material in
commercial use for such kind of wire; and secondly, because the only insulation material that may be
chan roblesvirtualawlibrary

effective is still in the experimental stage of development and, anyway, its costs would be prohibitive… ”

The theory followed by the appellate court in finding for the Plaintiff 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; that it was the company that was at fault and was guilty of negligence because although
chan roblesvirtualawlibrary

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; that negligence cannot be determined by a simple matter of inches; that all that the city did
chan roblesvirtualawlibrary chan roblesvirtualawlibrary

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.

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 Peñaloza. 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 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.
`

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
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.

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
`

“ , so that while it may be true that these injuries would not have been incurred but for the negligent act of
cralaw

the Defendant in leaving the caps exposed on its premises, nevertheless Plaintiff’s own act was the
proximate and principal cause of the accident which inflicted the injury.”

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 latter’s 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:
chanroblesvirtuallawlibr

ary

“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.).

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.

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.
`

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN,
respondents.

REGALADO, J.:

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

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

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal
part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long

Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from the date of the filing
of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff
the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the
defendant-third party plaintiff has paid to the plaintiff. With costs against the
defendant. 6

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

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in
said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the
lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban
spouses were negligent and consequently absolved petitioner PLDT from the claim for damages.7 A
copy of this decision was received by private respondents on October 10, 1979. 8 On October 25,
1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24,
1980, the Special Ninth Division of the Court of Appeals denied said motion for reconsideration.10
This resolution was received by respondent spouses on February 22, 1980.11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave
of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a
second motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was
received by private respondents on April 1, 1980 but prior thereto, private respondents had already
filed their second motion for reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion
for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the
second motion for reconsideration, designated two additional justices to form a division of five.16 On
September 3, 1980, said division of five promulgated its resolution, penned by Justice Mariano A.
Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January
24,1980, and affirming in toto the decision of the lower court.17

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

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

1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September 25,
1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and
on the additional ground that said second motion for reconsideration is pro forma.

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

A convenient resume of the relevant proceedings in the respondent court, as shown by the records
and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with
Justice Agrava as ponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
`

(d) January 24, 1980, a resolution was issued denying said motion for
reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by private
respondents;

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

(g) March 7, 1980, a second motion for reconsideration was filed by private
respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second
motion for reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing
the original decision dated September 25, 1979 and setting aside the resolution
dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself were
filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that
a second motion for reconsideration may be presented within fifteen (15) days from notice of the
order or judgment deducting the time in which the first motion has been pending. 20 Private
respondents having filed their first motion for reconsideration on the last day of the reglementary
period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order
denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present
case, after their receipt on February 22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options. On February 23, 1980, the remaining
one (1) day of the aforesaid reglementary period, they could have filed a motion for leave of court to
file a second motion for reconsideration, conceivably with a prayer for the extension of the period
within which to do so. On the other hand, they could have appealed through a petition for review on
certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion
for leave to file a second motion 'for reconsideration on February 29, 1980, and said second motion
for reconsideration on March 7, 1980, both of which motions were by then time-barred.

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

The consequential result is that the resolution of respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a
second motion for reconsideration, is null and void. The period for filing a second motion for
reconsideration had already expired when private respondents sought leave to file the same, and
respondent court no longer had the power to entertain or grant the said motion. The aforesaid
`

extension of ten (10) days for private respondents to file their second motion for reconsideration was
of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon the timeliness of the
motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second
motion for reconsideration and reversing the original decision are null and void and cannot disturb
the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much less revoke it.25 The
decision rendered anew is null and void.26 The court's inherent power to correct its own errors should
be exercised before the finality of the decision or order sought to be corrected, otherwise litigation
will be endless and no question could be considered finally settled. Although the granting or denial of
a motion for reconsideration involves the exercise of discretion,27 the same should not be exercised
whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and
equity.28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no
error in the findings of the respondent court in its original decision that the accident which befell
private respondents was due to the lack of diligence of respondent Antonio Esteban and was not
imputable to negligent omission on the part of petitioner PLDT. Such findings were 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:

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 plaintiff-husband's insistence that he did not see
the ACCIDENT MOUND for which reason he ran into it.

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, but not in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation could have been worse to the
south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
`

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband

claimed. At that speed, he could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND
several feet as indicated by the tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's
would not have been thrown against the windshield and they would not have suffered
their injuries.

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

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

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

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

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves,
and such evidence should be very carefully evaluated, with defendant, as the party
being charged, being given the benefit of any doubt. Definitely without ascribing the
same motivation to plaintiffs, 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 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.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur.

`

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed
that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against
respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo
street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.),
Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge
of operation. Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores
was transferring gasoline from a tank truck, plate No. T-5292 into the underground
tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the
gasoline hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the gasoline
was spouting. It burned the truck and the following accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation of
a coca-cola and cigarette stand, the complainants furnished this Office a copy of a
photograph taken during the fire and which is submitted herewith. it appears in this picture
`

that there are in the premises a coca-cola cooler and a rack which according to information
gathered in the neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted
by the trial court without objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador
Capacillo," the latter was presented as witness but respondents waived their right to cross-examine
him although they had the opportunity to do so; and thirdly, that in any event the said reports are
admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953
(pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by
counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection; the admission of the others, including the disputed ones, carried no such
explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined
and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All
he said was that he was one of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore,
on which he need be cross-examined; and the contents of the report, as to which he did not testify,
did not thereby become competent evidence. And even if he had testified, his testimony would still
have been objectionable as far as information gathered by him from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries
in official records made in the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made
by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station
were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who
could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
`

statements as "official information" acquired by the officers who prepared the reports, the persons who
made the statements not only must have personal knowledge of the facts stated but must have the
duty to give such statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein
were not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine
of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial
court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as
to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules
do not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use
for such doctrine." The question deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development
Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was
penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna, with
clear weather and without any wind blowing, an electric transmission wire, installed and
maintained by the defendant Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground. The electric charge coursed through
his body and caused extensive and serious multiple burns from skull to legs, leaving the
bone exposed in some parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific
act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur.
The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on
its defense. While it is the rule, as contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it is also a recognized
principal that "where the thing which caused injury, without fault of the injured person, is
under the exclusive control of the defendant and the injury is such as in the ordinary course
of things does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from defendant's want of
care."

And the burden of evidence is shifted to him to establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule
is known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be
on the highway, and the electric wire was under the sole control of defendant company. In
the ordinary course of events, electric wires do not part suddenly in fair weather and injure
people, unless they are subjected to unusual strain and stress or there are defects in their
`

installation, maintenance and supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle,
2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is admittedly not present),
the fact that the wire snapped suffices to raise a reasonable presumption of negligence in its
installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there
are any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises
almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to
his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the
testimony failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a
Writ of Review which was granted, and the case is now before us for decision. 1äwphï1.ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of
the fire and the other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the control of
the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
attached to the filling station while it was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated by the agents or employees of the
defendant, extended to the hose and tank truck, and was communicated from the burning
hose, tank truck, and escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to

explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary course
`

of things does not happen if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the
courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been
applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v.
Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505;
Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So.
599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons who knew or could have
known how the fire started were appellees and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa)
the following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of
occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district near the Obrero Market, a
railroad crossing and very thickly populated neighborhood where a great number of people
mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used
by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this already small but crowded gasoline
station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the
basis of his own personal observation of the facts reported, may properly be considered as an
exception to the hearsay rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent
`

measures of caution than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of Leandro Flores
before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without
assistance, was transferring the contents thereof into the underground storage when the fire broke
out. He said: "Before loading the underground tank there were no people, but while the loading was
going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a
meter from the hole leading to the underground tank." He added that when the tank was almost filled
he went to the tank truck to close the valve, and while he had his back turned to the "manhole" he,
heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the neighboring
houses.

There is an admission on the part of Boquiren in his amended answer to the second amended
complaint that "the fire was caused through the acts of a stranger who, without authority, or permission
of answering defendant, passed through the gasoline station and negligently threw a lighted match in
the premises." No evidence on this point was adduced, but assuming the allegation to be true —
certainly any unfavorable inference from the admission may be taken against Boquiren — it does not
extenuate his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those
of the present case, states the rule which we find acceptable here. "It is the rule that those who
distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as applied to torts
that 'if the effects of the actor's negligent conduct actively and continuously operate to bring about
harm to another, the fact that the active and substantially simultaneous operation of the effects of a
third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm,
does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated
in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153
S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This
issue depends on whether Boquiren was an independent contractor, as held by the Court of Appeals,
or an agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence
may be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an
agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the management of the state; (4) the delivery
truck used in delivering gasoline to the station had the name of CALTEX painted on it; and (5) the
license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit
T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of
his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one
there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among
the changes was one to the effect that he was not acting as agent of Caltex. But then again, in his
motion to dismiss appellants' second amended complaint the ground alleged was that it stated no
cause of action since under the allegations thereof he was merely acting as agent of Caltex, such that
`

he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the
business conducted at the service station in question was owned and operated by Boquiren. But
Caltex did not present any contract with Boquiren that would reveal the nature of their relationship at
the time of the fire. There must have been one in existence at that time. Instead, what was presented
was a license agreement manifestly tailored for purposes of this case, since it was entered into shortly
before the expiration of the one-year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January
1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that Caltex "shall not be liable for any
injury to person or property while in the property herein licensed, it being understood and agreed that
LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance
of the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by
Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement
in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence,
in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the control of Caltex over
Boquiren. The control was such that the latter was virtually an employee of the former.

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

To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what they
really had intended to enter into, but the way the contracting parties do or perform their
respective obligations stipulated or agreed upon may be shown and inquired into, and should
such performance conflict with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it immediately assumed control, and
`

proceeded to direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain
the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

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

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the loss took place. However,
regardless of the silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower
court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding
the testimony of one of the Ong children that said property was worth P4,000.00. We agree that the
court erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive evidence of such
value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00,
respectively, with interest from the filing of the complaint, and costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

Footnotes

1Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to
him by the corresponding priest is admissible. The justice of the peace has no personal
knowledge of the marriage, but it was reported to him by a priest whose duty it was, under
the law, to make the report for record purposes. Similarly, the tax records of a provincial
assessor are admissible even if the assessments were made by subordinates. So also are
entries of marriages made by a municipal treasurer in his official record, because he
acquires knowledge thereof by virtue of a statutory duty on the part of those authorized to
solemnize marriages to send a copy of each marriage contract solemnized by them to the
local civil registrar. (See Moran, Comments on the Rules of Court, Vol. 3 [1957] pp. 389-
395.)
`

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,

vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE
MABLE and children DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME,
ANTONIO, and BERNARDO all surnamed MABLE, respondents.

Luis S. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the application of the common law doctrine of res ipsa loquitur.

The essential facts of the case are not disputed.

The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the
residence of private respondents. Sometime in August 1971, private respondent Gregorio Mable first
approached Eric Cruz, petitioner's plant manager, to request that a firewall be constructed between
the shop and private respondents' residence. The request was repeated several times but they fell
on deaf ears. In the early morning of September 6, 1974, fire broke out in petitioner's shop.
Petitioner's employees, who slept in the shop premises, tried to put out the fire, but their efforts
proved futile. The fire spread to private respondents' house. Both the shop and the house were
razed to the ground. The cause of the conflagration was never discovered. The National Bureau of
Investigation found specimens from the burned structures negative for the presence of inflammable
substances.

Subsequently, private respondents collected P35,000.00 on the insurance on their house and the
contents thereof.

On January 23, 1975, private respondents filed an action for damages against petitioner, praying for
a judgment in their favor awarding P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and costs. The Court of First
Instance held for private respondents:

WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against
the defendant:

1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for
damages suffered by said plaintiffs for the loss of their house, with interest of 6%
from the date of the filing of the Complaint on January 23, 1975, until fully paid;
`

2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss
of plaintiffs' furnitures, religious images, silverwares, chinawares, jewelries, books,
kitchen utensils, clothing and other valuables, with interest of 6% from date of the
filing of the Complaint on January 23, 1975, until fully paid;

3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral
damages, P2,000.00 as exemplary damages, and P5,000.00 as and by way of
attorney's fees;

4. With costs against the defendant;

5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo,
pp. 29-30.]

On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of damages:

WHEREFORE, the decision declaring the defendants liable is affirmed. The

damages to be awarded to plaintiff should be reduced to P70,000.00 for the house
and P50,000.00 for the furniture and other fixtures with legal interest from the date of
the filing of the complaint until full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]

A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated
February 18, 1980. Hence, petitioner filed the instant petition for review on February 22, 1980. After
the comment and reply were filed, the Court resolved to deny the petition for lack of merit on June
11, 1980.

However, petitioner filed a motion for reconsideration, which was granted, and the petition was given
due course on September 12, 1980. After the parties filed their memoranda, the case was submitted
for decision on January 21, 1981.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on
their house, from the award of damages.

2. In awarding excessive and/or unproved damages.

3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.

The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the
issue of damages being merely consequential. In view thereof, the errors assigned by petitioner shall
be discussed in the reverse order.

1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may
be stated as follows:

Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in the absence of
`

explanation by the defendant, that the accident arose from want of care. [Africa v.
Caltex (Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]

Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank
truck was being unloaded into an underground storage tank through a hose and the fire spread to
and burned neighboring houses, this Court, applying the doctrine of res ipsa loquitur, adjudged
Caltex liable for the loss.

The facts of the case likewise call for the application of the doctrine, considering that in the normal
course of operations of a furniture manufacturing shop, combustible material such as wood chips,
sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon.

It must also be noted that negligence or want of care on the part of petitioner or its employees was
not merely presumed. The Court of Appeals found that petitioner failed to construct a firewall
between its shop and the residence of private respondents as required by a city ordinance; that the
fire could have been caused by a heated motor or a lit cigarette; that gasoline and alcohol were used
and stored in the shop; and that workers sometimes smoked inside the shop [CA Decision, p. 5;
Rollo, p. 33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in
accordance with city ordinances would suffice to support a finding of negligence.

Even then the fire possibly would not have spread to the neighboring houses were it
not for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumble and
melt when subjected to intense heat. Defendant's negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the
neighboring houses. [Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]

In the instant case, with more reason should petitioner be found guilty of negligence since it had
failed to construct a firewall between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance
providing for safety regulations had been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]

The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss
sustained by private respondents.

2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such
finding by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v.
Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so when there is no
showing of arbitrariness.

In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of
private respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00). With
regard to the house, the Court of Appeals reduced the award to P70,000.00 from P80,000.00. Such
cannot be categorized as arbitrary considering that the evidence shows that the house was built in
1951 for P40,000.00 and, according to private respondents, its reconstruction would cost
P246,000.00. Considering the appreciation in value of real estate and the diminution of the real
`

value of the peso, the valuation of the house at P70,000.00 at the time it was razed cannot be said
to be excessive.

3. While this Court finds that petitioner is liable for damages to private respondents as found by the
Court of Appeals, the fact that private respondents have been indemnified by their insurer in the
amount of P35,000.00 for the damage caused to their house and its contents has not escaped the
attention of the Court. Hence, the Court holds that in accordance with Article 2207 of the Civil Code
the amount of P35,000.00 should be deducted from the amount awarded as damages. Said article
provides:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity
from the insurance company for the injury or loss arising out of the wrong or breach
of contract complained of, the insurance company is subrogated to the rights of the
insured against the wrongdoer or the person who violated the contract. If the amount
paid by the insurance company does not fully cover the injury or loss, the aggrieved
party shall be entitled to recover the deficiency from the person causing the loss or
injury. (Emphasis supplied.]

The law is clear and needs no interpretation. Having been indemnified by their insurer, private
respondents are only entitled to recover the deficiency from petitioner.

On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it
indemnified private respondents from petitioner. This is the essence of its right to be subrogated to
the rights of the insured, as expressly provided in Article 2207. Upon payment of the loss incurred by
the insured, the insurer is entitled to be subrogated pro tanto to any right of action which the insured
may have against the third person whose negligence or wrongful act caused the loss [Fireman's
Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]

Under Article 2207, the real party in interest with regard to the indemnity received by the insured is
the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the
insurer should exercise the rights of the insured to which it had been subrogated lies solely within
the former's sound discretion. Since the insurer is not a party to the case, its identity is not of record
and no claim is made on its behalf, the private respondent's insurer has to claim his right to
reimbursement of the P35,000.00 paid to the insured.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED
with the following modifications as to the damages awarded for the loss of private respondents'
house, considering their receipt of P35,000.00 from their insurer: (1) the damages awarded for the
loss of the house is reduced to P35,000.00; and (2) the right of the insurer to subrogation and thus
seek reimbursement from petitioner for the P35,000.00 it had paid private respondents is
recognized.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

`

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc.,
fell 14 floors from the Renaissance Tower, Pasig City to his death.

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

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

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

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

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

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as

follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

`

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE

REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE
OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF

RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON
THE PART OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE,
AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS

NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL
CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law are prima facie evidence of the facts
therein stated.
`

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially
enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official
information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal knowledge
or which consisted of his perceptions and conclusions were not hearsay. The rest of
the report, such as the summary of the statements of the parties based on their
sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer [as part of the testimony of Major
Enriquez], may then be considered as independently relevant statements which were
gathered in the course of the investigation and may thus be admitted as such, but not
necessarily to prove the truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has
been made is relevant, the hearsay rule does not apply, but the statement
may be shown. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in issue,
or be circumstantially relevant as to the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report
and made himself available for cross-examination by the adverse party, the Report,
insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in open court of the
officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as
prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon v.
Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties
to declare as a witness are numberless. The public officers are few in whose
`

daily work something is not done in which testimony is not needed from
official sources. Were there no exception for official statements, hosts of
officials would be found devoting the greater part of their time to attending as
witnesses in court or delivering deposition before an officer. The work of
administration of government and the interest of the public having business
with officials would alike suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such documents, which is not
extended to private documents. (3 Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes

they will discharge their several trusts with accuracy and fidelity; and,
therefore, whatever acts they do in discharge of their duty may be given in
evidence and shall be taken to be true under such a degree of caution as to
the nature and circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would
have been ripe for determination, and this Court would have agreed with the Court of
Appeals that said report was inadmissible since the aforementioned third requisite
was not satisfied. The statements given by the sources of information of Major
Enriquez failed to qualify as "official information," there being no showing that, at the
very least, they were under a duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death beyond dispute. PO3
Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it
was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the
police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally
not admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct proof and furnishes a substitute for specific
proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference or
`

presumption that it was due to negligence on defendant’s part, under the doctrine of
res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in
one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at
least permit an inference of negligence on the part of the defendant, or some other
person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would
not happen if those who had its control or management used proper care, there is
sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused by the
defendant’s want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in
charge of the instrumentality which causes the injury either knows the cause of the
accident or has the best opportunity of ascertaining it and that the plaintiff has no
such knowledge, and therefore is compelled to allege negligence in general terms
and to rely upon the proof of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a
plaintiff, without knowledge of the cause, reaches over to defendant who knows or
should know the cause, for any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine,
another court has said, is a rule of necessity, in that it proceeds on the theory that
under the peculiar circumstances in which the doctrine is applicable, it is within the
power of the defendant to show that there was no negligence on his part, and direct
proof of defendant’s negligence is beyond plaintiff’s power. Accordingly, some court
add to the three prerequisites for the application of the res ipsa loquitur doctrine the
further requirement that for the res ipsa loquitur doctrine to apply, it must appear that
the injured party had no knowledge or means of knowledge as to the cause of the
accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a building
to the basement while he was working with appellant’s construction project, resulting
to his death. The construction site is within the exclusive control and management of
appellant. It has a safety engineer, a project superintendent, a carpenter leadman
and others who are in complete control of the situation therein. The circumstances of
any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to
know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available, provided the following requisites
`

are present: (1) the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary action or contribution on the part of
the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely
caused the injury is under the exclusive control and management of appellant[;]
thus[,] the second requisite is also present. No contributory negligence was attributed
to the appellee’s deceased husband[;] thus[,] the last requisite is also present. All the
requisites for the application of the rule of res ipsa loquitur are present, thus a
reasonable presumption or inference of appellant’s negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established. 1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabro’s sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioner’s employees, also assails
the same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses
his own language in writing the affiant’s statements which may either be omitted or misunderstood
by the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care any
more than private respondent can use it to prove the cause of her husband’s death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.
`

Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceased’s employer
damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent 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 Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, 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.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by

this Act to an employee by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of
the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31
following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in
case of death have a right of selection or choice of action between availing
themselves of the worker’s right under the Workmen’s Compensation Act and suing
in the regular courts under the Civil Code for higher damages (actual, moral and
exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmen’s Compensation Act and sue in addition
for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32
SCRA 442, ruled that an injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmen’s Compensation Act or to prosecute
an ordinary civil action against the tortfeasor for higher damages but he cannot
pursue both courses of action simultaneously. [Underscoring supplied.]
`

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmen’s Compensation
Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and
Saturnino submitted notices and claims for compensation to the Regional Office No.
1 of the then Department of Labor and all of them have been paid in full as of August
25, 1967, except Saturnino Martinez whose heirs decided that they be paid in
installments x x x. Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but
they set up the defense that the claims were filed under the Workmen’s
Compensation Act before they learned of the official report of the committee created
to investigate the accident which established the criminal negligence and violation of
law by Philex, and which report was forwarded by the Director of Mines to then
Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after
receiving compensation under the Act. Had petitioners been aware of said violation
of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmen’s Compensation Commission which
awarded a lesser amount for compensation. The choice of the first remedy was
based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid before
the lower court, the payments made under the Workmen’s Compensation Act should
be deducted from the damages that may be decreed in their favor. [Underscoring
supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the
Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the
course of their employment could be filed only under the Workmen’s Compensation
Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine
was abrogated in favor of the new rule that the claimants may invoke either the
Workmen’s Compensation Act or the provisions of the Civil Code, subject to the
consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for
additional benefits under the other remedy. The exception is where a claimant who
has already been paid under the Workmen’s Compensation Act may still sue for
damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death benefits from
`

the State Insurance Fund. Private respondent filed the civil complaint for damages after she received
a copy of the police investigation report and the Prosecutor’s Memorandum dismissing the criminal
complaint against petitioner’s personnel. While stating that there was no negligence attributable to
the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of

appellant as early as November 25, 1990, the date of the police investigator’s report.
The appellee merely executed her sworn statement before the police investigator
concerning her personal circumstances, her relation to the victim, and her knowledge
of the accident. She did not file the complaint for "Simple Negligence Resulting to
Homicide" against appellant’s employees. It was the investigator who recommended
the filing of said case and his supervisor referred the same to the prosecutor’s office.
This is a standard operating procedure for police investigators which appellee may
not have even known. This may explain why no complainant is mentioned in the
preliminary statement of the public prosecutor in her memorandum dated February 6,
1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant
of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did
not have a chance to appear before the public prosecutor as can be inferred from the
following statement in said memorandum: "Respondents who were notified pursuant
to Law waived their rights to present controverting evidence," thus there was no
reason for the public prosecutor to summon the appellee. Hence, notice of
appellant’s negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the
police investigation report to support her complaint filed on May 9, 1991 may just be
an afterthought after receiving a copy of the February 6, 1991 Memorandum of the
Prosecutor’s Office dismissing the criminal complaint for insufficiency of evidence,
stating therein that: "The death of the victim is not attributable to any negligence on
the part of the respondents. If at all and as shown by the records this case is civil in
nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to
believe appellee’s allegation that she learned about appellant’s negligence only after
she applied for and received the benefits under ECC. This is a mistake of fact that
will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as
well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school
for her educational attainment; that she did not know what damages could be
recovered from the death of her husband; and that she did not know that she may
also recover more from the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioner’s employees, the
`

case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the
ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits from the
ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its
rights, but chooses not to assert them. It must be generally shown by the party
claiming a waiver that the person against whom the waiver is asserted had at the
time knowledge, actual or constructive, of the existence of the party’s rights or of all
material facts upon which they depended. Where one lacks knowledge of a right,
there is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given under a
mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right
exists and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived,
with an awareness of its consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is waived.
It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the
issue when petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband’s death
and the rights pertaining to a choice of remedies?
`

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. In Floresca, it was the negligence of the mining corporation and its
violation of government rules and regulations. Negligence, or violation of government rules and
regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the courts
have the final say. Such a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied in
Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The
police investigation report is dated November 25, 1990, 10 days after the accomplishment of the
form. Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not aware
of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Court’s ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42
This may be deduced from the language of the provision, which, notwithstanding a person’s
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing
private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit "K"43
that she received P3,581.85 as initial payment representing the accrued pension from November
1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97
and present total monthly pension was P716.40. Whether the total amount she will eventually
receive from the ECC is less than the sum of P644,000.00 in total damages awarded by the trial
court is subject to speculation, and the case is remanded to the trial court for such determination.
Should the trial court find that its award is greater than that of the ECC, payments already received
by private respondent under the Labor Code shall be deducted from the trial court'’ award of
damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

`

G.R. No. 157906 November 2, 2006

JOAQUINITA P. CAPILI, Petitioner,

vs.
SPS. DOMINADOR CARDAÑA and ROSALITA CARDAÑA, Respondents.
DECISION

QUISUMBING, J.:

Before us is a petition for review assailing the Decision1 dated October 18, 2002 of the Court of Appeals
in CA-G.R. CV. No. 54412, declaring petitioner liable for negligence that resulted in the death of
Jasmin Cardaña, a school child aged 12, enrolled in Grade 6, of San Roque Elementary School, where
petitioner is the principal. Likewise assailed is the Resolution2 dated March 20, 2003 denying
reconsideration.

The facts are as follows:

On February 1, 1993, Jasmin Cardaña was walking along the perimeter fence of the San Roque
Elementary School when a branch of a caimito tree located within the school premises fell on her,
causing her instantaneous death. Thus, her parents - Dominador and Rosalita Cardaña - filed a case
for damages before the Regional Trial Court of Palo, Leyte against petitioner.

The Cardañas alleged in their complaint that even as early as December 15, 1992, a resident of the
barangay, Eufronio Lerios, reported on the possible danger the tree posed to passersby. Lerios even
pointed to the petitioner the tree that stood near the principal’s office. The Cardañas averred that
petitioner’s gross negligence and lack of foresight caused the death of their daughter.

Petitioner denied the accusation and said that at that time Lerios had only offered to buy the tree. She
also denied knowing that the tree was dead and rotting. To prove her point, she presented witnesses
who attested that she had brought up the offer of Lerios to the other teachers during a meeting on
December 15, 1992 and assigned Remedios Palaña to negotiate the sale.

In a Decision3 dated February 5, 1996, the trial court dismissed the complaint for failure of the
respondents to establish negligence on the part of the petitioner.

On appeal, the Court of Appeals reversed the trial court’s decision. The appellate court found the
appellee (herein petitioner) liable for Jasmin’s death, as follows:

Foregoing premises considered, the instant appeal is GRANTED. Appellee Joaquinita Capili is hereby
declared liable for negligence resulting to the death of Jasmin D. Cardaña. She is hereby ordered to
indemnify appellants, parents of Jasmin, the following amounts:

1. For the life of Jasmin D. Cardaña P50,000.00;

2. For burial expenses 15,010.00;

3. For moral damages 50,000.00;

4. For attorney’s fees and litigation 10,000.00.

expenses
`

SO ORDERED.4

Petitioner’s motion for reconsideration was denied. Petitioner now comes before us submitting the
following issues for our resolution:

WHETHER OR NOT THE COURT OF APPEALS VIS-À-VIS THE SET OF FACTS STATED
IN THE CHALLENGED DECISION, ERRED IN FINDING THE PETITIONER NEGLIGENT
AND THEREFORE LIABLE FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE
AND IN ORDERING THE PETITIONER TO PAY DAMAGES TO THE RESPONDENTS;
AND

II

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONER’S

MOTION FOR RECONSIDERATION.5

On the other hand, respondents posit the following issue:

Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division, in CA G.R. CV. No.
54412 promulgated on October 18, 2002 … should be affirmed and respected, thus remain
undisturbed.6

Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaña.

Petitioner asserts that she was not negligent about the disposal of the tree since she had assigned
her next-in-rank, Palaña, to see to its disposal; that despite her physical inspection of the school
grounds, she did not observe any indication that the tree was already rotten nor did any of her 15
teachers inform her that the tree was already rotten;7 and that moral damages should not be granted
against her since there was no fraud nor bad faith on her part.

On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet, she
did not exercise reasonable care and caution which an ordinary prudent person would have done in
the same situation.

To begin, we have to point out that whether petitioner was negligent or not is a question of fact which
is generally not proper in a petition for review, and when this determination is supported by substantial
evidence, it becomes conclusive and binding on this Court.8 However, there is an exception, that is,
when the findings of the Court of Appeals are incongruent with the findings of the lower court.9 In our
view, the exception finds application in the present case.

The trial court gave credence to the claim of petitioner that she had no knowledge that the tree was
already dead and rotting and that Lerios merely informed her that he was going to buy the tree for
firewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstances
require and that there was an absence of evidence that would require her to use a higher standard of
care more than that required by the attendant circumstances.10 The Court of Appeals, on the other
hand, ruled that petitioner should have known of the condition of the tree by its mere sighting and that
no matter how hectic her schedule was, she should have had the tree removed and not merely
delegated the task to Palaña. The appellate court ruled that the dead caimito tree was a nuisance that
should have been removed soon after petitioner had chanced upon it.11
`

A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence
and may be one which creates a situation involving an unreasonable risk to another because of the
expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one
from which an ordinary prudent person in the actor’s position, in the same or similar circumstances,
would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it
in a more careful manner.12

The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a
danger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenance
of the school grounds and safety of the children within the school and its premises. That she was
unaware of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of
her discharge of the responsibility of her position.

In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance
of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or
some other person for whose act he must respond; and (3) the connection of cause and effect between
the fault or negligence and the damages incurred.13

The fact, however, that respondents’ daughter, Jasmin, died as a result of the dead and rotting tree
within the school’s premises shows that the tree was indeed an obvious danger to anyone passing by
and calls for application of the principle of res ipsa loquitur.

The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant
an inference that it would not have happened except for the defendant’s negligence; (2) the accident
must have been caused by an agency or instrumentality within the exclusive management or control
of the person charged with the negligence complained of; and (3) the accident must not have been
due to any voluntary action or contribution on the part of the person injured.14

The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere
falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter was
a result of petitioner’s negligence, being in charge of the school.

In the case of D.M. Consunji, Inc. v. Court of Appeals,15 this Court held:

…As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence.

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident
or injury will not generally give rise to an inference or presumption that it was due to negligence on
defendant’s part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
`

absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s
want of care.

The procedural effect of the doctrine of res ipsa loquitur is that petitioner’s negligence is presumed
once respondents established the requisites for the doctrine to apply. Once respondents made out a
prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or
inference may be rebutted or overcome by other evidence and, under appropriate circumstances a
disputable presumption, such as that of due care or innocence, may outweigh the inference.16

Was petitioner’s explanation as to why she failed to have the tree removed immediately sufficient to
exculpate her?

As the school principal, petitioner was tasked to see to the maintenance of the school grounds and
safety of the children within the school and its premises. That she was unaware of the rotten state of
the tree calls for an explanation on her part as to why she failed to be vigilant.

Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merely
offered to buy the tree and did not inform her of its condition. Neither did any of her teachers inform
her that the tree was an imminent danger to anyone. She argues that she could not see the immediate
danger posed by the tree by its mere sighting even as she and the other teachers conducted ground
inspections. She further argues that, even if she should have been aware of the danger, she exercised
her duty by assigning the disposition of the tree to another teacher.

We find petitioner’s explanation wanting. As school principal, petitioner is expected to oversee the
safety of the school’s premises. The fact that she failed to see the immediate danger posed by the
1âwphi 1

dead and rotting tree shows she failed to exercise the responsibility demanded by her position.

Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises
supervision over her assignee.17 The record shows that more than a month had lapsed from the time
petitioner gave instruction to her assistant Palaña on December 15, 1992, to the time the incident
occurred on February 1, 1993. Clearly, she failed to check seasonably if the danger posed by the
rotting tree had been removed. Thus, we cannot accept her defense of lack of negligence.

Lastly, petitioner questions the award of moral damages. Moral damages are awarded if the following
elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission
factually established; (3) a wrongful act or omission by the defendant as the proximate cause of the
injury sustained by the claimant; and (4) the award of damages predicated on any of the cases stated
in Article 2219 of the Civil Code.18 However, the person claiming moral damages must prove the
existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is
not enough that one merely suffered sleepless nights, mental anguish, and serious anxiety as the
result of the actuations of the other party. Invariably, such action must be shown to have been willfully
done in bad faith or with ill motive.19 Under the circumstances, we have to concede that petitioner was
not motivated by bad faith or ill motive vis-à-vis respondents’ daughter’s death. The award of moral
damages is therefore not proper.

In line with applicable jurisprudence, we sustain the award by the Court of Appeals of ₱50,000 as
indemnity for the death of Jasmin,20 and ₱15,010 as reimbursement of her burial
expenses.21WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the
Resolution dated March 20, 2003, of the Court of Appeals in CA-G.R. CV. No. 54412 are AFFIRMED
with MODIFICATION such that the award of moral damages is hereby deleted. Costs against
petitioner.SO ORDERED.
`

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 132266 December 21, 1999

CASTILEX INDUSTRIAL CORPORATION, petitioner,

vs.
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS' HOSPITAL, INC.,
respondents.

DAVIDE, JR., C.J.:

The pivotal issue in this petition is whether an employer may be held vicariously liable for the death
resulting from the negligent operation by a managerial employee of a company-issued vehicle.

The antecedents, as succinctly summarized by the Court of Appeals, are as follows:

On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was
driving a Honda motorcycle around Fuente Osmeña Rotunda. He was traveling
counter-clockwise, (the normal flow of traffic in a rotunda) but without any protective
helmet or goggles. He was also only carrying a Student's Permit to Drive at the time.
Upon the other hand, Benjamin Abad [was a] manager of Appellant Castilex
Industrial Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no.
GBW-794. On the same date and time, Abad drove the said company car out of a
parking lot but instead of going around the Osmeña rotunda he made a short cut
against [the] flow of the traffic in proceeding to his route to General Maxilom St. or to
Belvic St.

In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each
other causing severe injuries to the former. Abad stopped his vehicle and brought
Vasquez to the Southern Islands Hospital and later to the Cebu Doctor's Hospital.

On September 5, 1988, Vasquez died at the Cebu Doctor's Hospital. It was there that
Abad signed an acknowledgment of Responsible Party (Exhibit K) wherein he agreed
to pay whatever hospital bills, professional fees and other incidental charges
Vasquez may incur.

After the police authorities had conducted the investigation of the accident, a
Criminal Case was filed against Abad but which was subsequently dismissed for
failure to prosecute. So, the present action for damages was commenced by Vicente
Vasquez, Jr. and Luisa So Vasquez, parents of the deceased Romeo So Vasquez,
against Jose Benjamin Abad and Castilex Industrial Corporation. In the same action,
Cebu Doctor's Hospital intervened to collect unpaid balance for the medical expense
given to Romeo So Vasquez.1
`

The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered Jose
Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial Corporation (hereafter
CASTILEX) to pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial
expenses; P50,000.00 as moral damages; P10,000.00 as attorney's fees; and P778,752.00 for loss
of earning capacity; and (2) Cebu Doctor's Hospital, the sum of P50,927.83 for unpaid medical and
hospital bills at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of litigation.2

CASTILEX and ABAD separately appealed the decision.

In its decision3 of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court holding
ABAD and CASTILEX liable but held that the liability of the latter is "only vicarious and not solidary"
with the former. It reduced the award of damages representing loss of earning capacity from
P778,752.00 to P214,156.80; and the interest on the hospital and medical bills, from 3% per month
to 12% per annum from 5 September 1988 until fully paid.

Upon CASTILEX's motion for reconsideration, the Court of Appeals modified its decision by (1)
reducing the award of moral damages from P50,000 to P30,000 in view of the deceased's
contributory negligence; (b) deleting the award of attorney's fees for lack of evidence; and (c)
reducing the interest on hospital and medical bills to 6% per annum from 5 September 1988 until
fully paid.4

Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying
to the case the fifth paragraph of Article 2180 of the Civil Code, instead of the fourth paragraph
thereof; (2) that as a managerial employee, ABAD was deemed to have been always acting within
the scope of his assigned task even outside office hours because he was using a vehicle issued to
him by petitioner; and (3) ruling that petitioner had the burden to prove that the employee was not
acting within the scope of his assigned task.

Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on the
theory of negligence on the part of the deceased.

On the other hand, respondents Spouses Vasquez argue that their son's death was caused by the
negligence of petitioner's employee who was driving a vehicle issued by petitioner and who was on
his way home from overtime work for petitioner; and that petitioner is thus liable for the resulting
injury and subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if
the fourth paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They
moreover argue that the Court of Appeals erred in reducing the amount of compensatory damages
when the award made by the trial court was borne both by evidence adduced during the trial
regarding deceased's wages and by jurisprudence on life expectancy. Moreover, they point out that
the petition is procedurally not acceptable on the following grounds: (1) lack of an explanation for
serving the petition upon the Court of Appeals by registered mail, as required under Section 11, Rule
13 of the Rules of Civil Procedure; and (2) lack of a statement of the dates of the expiration of the
original reglementary period and of the filing of the motion for extension of time to file a petition for
review.

For its part, respondent Cebu Doctor's Hospital maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent death of Romeo Vasquez caused by ABAD, who
was on his way home from taking snacks after doing overtime work for petitioner. Although the
incident occurred when ABAD was not working anymore "the inescapable fact remains that said
employee would not have been situated at such time and place had he not been required by
petitioner to do overtime work." Moreover, since petitioner adopted the evidence adduced by ABAD,
`

it cannot, as the latter's employer, inveigle itself from the ambit of liability, and is thus estopped by
the records of the case, which it failed to refute.

We shall first address the issue raised by the private respondents regarding some alleged
procedural lapses in the petition.

Private respondent's contention of petitioner's violation of Section 11 of Rule 13 and Section 4 of

Rule 45 of the 1997 Rules of Civil Procedure holds no water.

Sec. 11 of Rule 13 provides:

Sec. 11. Priorities in modes of services and filing. — Whenever practicable, the
service and filing of pleadings and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done
personally. A violation of this Rule may be cause to consider the paper as not filed.

The explanation why service of a copy of the petition upon the Court of Appeals was done by
registered mail is found on Page 28 of the petition. Thus, there has been compliance with the
aforequoted provision.

As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the same
is unfounded. The material dates required to be stated in the petition are the following: (1) the date
of receipt of the judgment or final order or resolution subject of the petition; (2) the date of filing of a
motion for new trial or reconsideration, if any; and (3) the date of receipt of the notice of the denial of
the motion. Contrary to private respondent's claim, the petition need not indicate the dates of the
expiration of the original reglementary period and the filing of a motion for extension of time to file
the petition. At any rate, aside from the material dates required under Section 4 of Rule 45, petitioner
CASTILEX also stated in the first page of the petition the date it filed the motion for extension of time
to file the petition.

Now on the merits of the case.

The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said
negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by
ABAD.

Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply to
instances where the employer is not engaged in business or industry. Since it is engaged in the
business of manufacturing and selling furniture it is therefore not covered by said provision. Instead,
the fourth paragraph should apply.

Petitioner's interpretation of the fifth paragraph is not accurate. The phrase "even though the former
are not engaged in any business or industry" found in the fifth paragraph should be interpreted to
mean that it is not necessary for the employer to be engaged in any business or industry to be liable
for the negligence of his employee who is acting within the scope of his assigned task.5

A distinction must be made between the two provisions to determine what is applicable. Both
provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or
enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business
or industry. The fourth paragraph covers negligent acts of employees committed either in the service
`

of the branches or on the occasion of their functions, while the fifth paragraph encompasses
negligent acts of employees acting within the scope of their assigned task. The latter is an expansion
of the former in both employer coverage and acts included. Negligent acts of employees, whether or
not the employer is engaged in a business or industry, are covered so long as they were acting
within the scope of their assigned task, even though committed neither in the service of the branches
nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats.
They perform functions which are beyond their office, title or designation but which, nevertheless,
are still within the call of duty.

This court has applied the fifth paragraph to cases where the employer was engaged in a business
or industry such as truck operators6 and banks.7 The Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the Civil Code to this case.

Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an
employer is liable for the torts committed by employees within the scope of his assigned tasks. But it
is necessary to establish the employer-employee relationship; once this is done, the plaintiff must
show, to hold the employer liable, that the employee was acting within the scope of his assigned
task when the tort complained of was committed. It is only then that the employer may find it
necessary to interpose the defense of due diligence in the selection and supervision of the
employee.8

It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort
occurrence. As to whether he was acting within the scope of his assigned task is a question of fact,
which the court a quo and the Court of Appeals resolved in the affirmative.

Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are
entitled to great respect, and even finality at times. This rule is, however, subject to exceptions such
as when the conclusion is grounded on speculations, surmises, or conjectures.9 Such exception
obtain in the present case to warrant review by this Court of the finding of the Court of Appeals that
since ABAD was driving petitioner's vehicle he was acting within the scope of his duties as a
manager.

Before we pass upon the issue of whether ABAD was performing acts within the range of his
employment, we shall first take up the other reason invoked by the Court of Appeals in holding
petitioner CASTILEX vicariously liable for ABAD's negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the scope of his assigned tasks at the time of the motor
vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon the
petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting
within the scope of his duties; petitioner was not under obligation to prove this negative averment. Ei
incumbit probatio qui dicit, non qui negat (He who asserts, not he who denies, must prove). The
Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of
proving his cause of action, fails to show in a satisfactory manner facts which he bases his claim, the
defendant is under no obligation to prove his exception or defense. 10

Now on the issue of whether the private respondents have sufficiently established that ABAD was
acting within the scope of his assigned tasks.

ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was
driving a company-issued vehicle, registered under the name of petitioner. He was then leaving the
restaurant where he had some snacks and had a chat with his friends after having done overtime
work for the petitioner.
`

No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem
of whether at a given moment, an employee is engaged in his employer's business in the operation
of a motor vehicle, so as to fix liability upon the employer because of the employee's action or
inaction; but rather, the result varies with each state of facts. 11

In Filamer Christian Institute v. Intermediate Appellant Court, 12 this Court had the occasion to hold
that acts done within the scope of the employee's assigned tasks includes "any act done by an
employee in furtherance of the interests of the employer or for the account of the employer at the
time of the infliction of the injury or damages."

The court a quo and the Court of Appeals were one in holding that the driving by a manager of a
company-issued vehicle is within the scope of his assigned tasks regardless of the time and
circumstances.

We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious
incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said
vehicle unless it appears that he was operating the vehicle within the course or scope of his
employment.

The following are principles in American Jurisprudence on the employer's liability for the injuries
inflicted by the negligence of an employee in the use of an employer's motor vehicle:

I. Operation of Employer's Motor Vehicle in Going to or from Meals

It has been held that an employee who uses his employer's vehicle in going from his work to a place
where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of
his employment in the absence of evidence of some special business benefit to the employer.
Evidence that by using the employer's vehicle to go to and from meals, an employee is enabled to
reduce his time-off and so devote more time to the performance of his duties supports the finding
that an employee is acting within the scope of his employment while so driving the vehicle. 13

II. Operation of Employer's Vehicle in Going to or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern
of the employee, and not a part of his services to his employer. Hence, in the absence of some
special benefit to the employer other than the mere performance of the services available at the
place where he is needed, the employee is not acting within the scope of his employment even
though he uses his employer's motor vehicle. 14

The employer may, however, be liable where he derives some special benefit from having the
employee drive home in the employer's vehicle as when the employer benefits from having the
employee at work earlier and, presumably, spending more time at his actual duties. Where the
employee's duties require him to circulate in a general area with no fixed place or hours of work, or
to go to and from his home to various outside places of work, and his employer furnishes him with a
vehicle to use in his work, the courts have frequently applied what has been called the "special
errand" or "roving commission" rule, under which it can be found that the employee continues in the
service of his employer until he actually reaches home. However, even if the employee be deemed
to be acting within the scope of his employment in going to or from work in his employer's vehicle,
the employer is not liable for his negligence where at the time of the accident, the employee has left
the direct route to his work or back home and is pursuing a personal errand of his own.

III. Use of Employer's Vehicle Outside Regular Working Hours

`

An employer who loans his motor vehicle to an employee for the latter's personal use outside of
regular working hours is generally not liable for the employee's negligent operation of the vehicle
during the period of permissive use, even where the employer contemplates that a regularly
assigned motor vehicle will be used by the employee for personal as well as business purposes and
there is some incidental benefit to the employer. Even where the employee's personal purpose in
using the vehicle has been accomplished and he has started the return trip to his house where the
vehicle is normally kept, it has been held that he has not resumed his employment, and the
employer is not liable for the employee's negligent operation of the vehicle during the return trip. 15

The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the
doctrine of respondent superior, not on the principle of bonus pater familias as in ours. Whether the
fault or negligence of the employee is conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the
employer as in ours, it is indispensable that the employee was acting in his employer's business or
within the scope of his assigned task. 16

In the case at bar, it is undisputed that ABAD did some overtime work at the petitioner's office, which
was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldie's Restaurant in Fuente
Osmeña, Cebu City, which is about seven kilometers away from petitioner's place of business. 17 A
witness for the private respondents, a sidewalk vendor, testified that Fuente Osmeña is a "lively
place" even at dawn because Goldie's Restaurant and Back Street were still open and people were
drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. 18

At the Goldie's Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD
was leaving the restaurant that the incident in question occurred. That same witness for the private
respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car,
who then shouted: "Daddy, Daddy!" 19 This woman could not have been ABAD's daughter, for ABAD
was only 29 years old at the time.

To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he figured in a vehicular accident. It was then about
2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABAD's working day had
ended; his overtime work had already been completed. His being at a place which, as petitioner put
it, was known as a "haven for prostitutes, pimps, and drug pushers and addicts," had no connection
to petitioner's business; neither had it any relation to his duties as a manager. Rather, using his
service vehicle even for personal purposes was a form of a fringe benefit or one of the perks
attached to his position.

Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted
to him, petitioner CASTILEX had no duty to show that it exercised the diligence of a good father of a
family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be
relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. 20

WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of
Appeals is AFFIRMED with the modification that petitioner Castilex Industrial Corporation be
absolved of any liability for the damages caused by its employee, Jose Benjamin Abad.

SO ORDERED.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

`

G.R. No. L-10181 March 2, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
MARIANO CRAME, defendant-appellant.

Alfredo Chicote for appellant.

Office of the Solicitor-General for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Manila convicting the accused of
the crime of serious physical injuries through reckless negligence.

The information under which he was tried and convicted is as follows:

That on or about the 10th day of February, 1914, in the city of Manila, Philippine Islands, the
said Mariano Crame, being then and there the chauffeur of a motor vehicle, did then and
there unlawfully, with reckless imprudence and in violation of the regulations, conduct and
drive the said motor vehicle along Calle Herran in said city without using reasonable care
and diligence to prevent injury to persons and property and without paying any attention to
the pedestrians occupying and crossing said street, thus colliding with, running over, and by
his neglect and imprudence in the management and lack of control thereof, causing the said
automobile guided and conducted by the said accused as aforesaid, to knock down, drag,
and run over the body of one George B. Coombs, a private in the United States Army, who
was then and there occupying and crossing the said Calle Herran, thereby causing injuries,
wounds, and bruises upon the person of the said George B. Coombs, which said injuries,
wounds, and bruises have deranged the mental faculties of the said George B. Coombs and
have incapacitated him, the said George B. Coombs, from further performance of his duties
as a soldier of the said United States Army.

It appears from the evidence that on the night of the 10th of February, 1914, between 11 and 12
o'clock, the accused, Mariano Crame, a duly-licensed chauffeur, was driving an automobile, in which,
at the time, were Thomas M. Bill, a sailor belonging to the United States Navy, and Indalecio Rabonsa,
an apprentice to the accused who, at the time of the accident, was sitting at his side on the front seat.
The automobile was passing from Santa Ana to Manila and, at the time of the accident, was going in
a northwesterly direction. At the same time there were two automobile on the way from Manila to Santa
Ana, one belonging to Mr. Stuart, driven by himself, and the other a machine without passengers
driven by a chauffeur by the name of Miranda. The automobile driven by Stuart was a modern Cadillac
with high-powered electric lights. The accused states that this fact added to the other fact that he was
near the Damas Bridge at the time, induced him to reduce the speed of the automobile at that point
so that he was, at the time of the accident, going only about 10 miles an hour. He asserts that he
suddenly saw the form of a man in front of his automobile and that, on seeing him, he altered the
course of the machine as much as possible in order to avoid a collision; but that he was unable to do
so, the right side of the machine hitting the man and knocking him to the ground. He asserted that at
the time it struck the man, the machine was almost at a standstill, it coming to a complete stop within
about 6 feet of where the injured man lay.

Crame, Rabonsa, and Bill placed the injuries man in the automobile and carried him to the hospital.
Afterwards they went to the police station at Paco and gave an account of the accident. Immediately
thereafter Crame also went to the office of the superintendent of automobiles of the Bureau of Public
Works and reported the accident.
`

Relative to the injuries resulting to Coombs from the accident, it appears that he received a heavy
blow in the lower part of the back of the head which caused ecchymosis and coagulation of blood. As
a result of the blow he was rendered unconscious and has since remained in state of great mental
debility, with severe pains in the head, almost complete loss of memory, being unable to remember
anything that occurred during the accident and, it times forgetting the names and countenances of his
most continual attendance. He is described by the physician who examined and treated him as an
incurable and hopeless imbecile.

The learned trial court convicted the accused of the crime of producing serious physical injuries by
imprudencia temeraria, setting forth as the grounds of the conviction the following reasons:

First, in that [before the occurrence] the accused, having seen the coldier Coombs crossing
the street at a certain distance in front of the automobile, did not reduce the speed of the
automobile sufficiently, nor attempt to stop the machinery entirely, if that was necessary, to
avoid an accident. Second, in that it does not appear that the accused sounded his horn or
whistle or used his voice to call the attention of the person who was crossing the street or
notify him that he should stop and avoid being struck by the automobile. Third and last, in
that the accused was driving in the center, or little to the right of the center of the street
instead of on the left side thereof:

Discussing these point the court said:

With reference to the first ground of negligence, the accused alleges that he was unable to
stop his machine suddenly; but to this it may be answered that if he had begun to stop the
machine the first moment that he saw the soldier the accident would undoubtedly have been
avoided. . . . What the court desires to say is that with a speed of only 12 to 20 mile an hour,
if the accused had begun to reduce speed in time, there is no doubt whatever that the
accident would have been avoided and he would have been able easily to stop his machine
in time.

Relative to the second ground of negligence, or the failure, in order to prevent the injury, to
sound the horn and arrest the attention of the soldier who was crossing the street, there is
nowhere in the case any proof or even an allegation in front of the accused. He testified as a
witness in his own behalf, but he never mentioned having sounded the horn, nor did he give
any reason why he did not do so.

In regard to the third ground of negligence, the accused and his witnesses sought to
establish the fact that, at the place where the accident occurred, the automobile could not
pass along the left side of the street because the street-car rails are upon that side, and if he
had attempted to pass upon the left side of the rails the automobile would have been thrown
into the ditch, as the street upon that side of the street-car tracks is very uneven and as a
result the chauffeur and his passenger would have been exposed to a greater danger than
the one that they tried to avoid. The court nevertheless, is of the opinion that this claim is not
sustainable in view of the fact that, at the place where the accident occurred, as has already
been said, there are two street-car tracks. One of those track, it is true, is very close to the
extreme left side of the street, but the other is located about the center of the street. The
accused should not have been required to drive his automobile upon the left said of the
farther track; but it is evident that he could have passed between this track and the track in
the center of the street. If the accident had occurred under such circumstances the court
would have said that it was an unavoidable accident. But as the collision occurred outside of
the tack in the center of the street and on the right hand side of the street, the court believes
that the accused is the cause of said accident.
`

The court, in company with the prosecuting attorney, the attorney of the accused and
Mariano Crame himself, examined the place where the accident occurred and, from a careful
examination of the place, compared with the testimony of the seaman Bill and the witness
Stuart, the Court is convinced that the place where the soldier was hit is not the place
indicated by the accused — that is, between the Damas Bridge and the McKinley Junction,
just opposite a wooden post, but at the place marked in the plan Exhibit A by the witness
Stuart.

We are satisfied from an examination of the record that the conclusions of the trial court are more than
sustained. The accused did not see the soldier whom he ran down until it was too late, although the
street at that point was brilliantly lighted; he did not sound his horn or give notice of his approach in
any other manner; he did not apply the brake or make any effort whatever to stop; he was traveling on
the wrong side of the street at the time of the collision.

In defense of the accused counsel says:

At what distance did the accused see the soldier? From the testimony of the accused and
the witness Rabonsa, which is all the proof there is in the record in this respect, it is inferred
that neither the chauffeur nor his companion saw the soldier at a sufficient distance to permit
them to lose time in useless or at least doubtful maneuvers; Rabonsa says that he saw the
soldier first at the very moment of the accident; Stuart saw him only as he was falling to the
ground; and the accused says that the soldier appeared suddenly in front of the machine and
that he, accused, in the face of imminent danger of a collision charged the direction of the
automobile in order not to have the center of the machine strike the soldier, but that he was
unable to avoid hitting him with the rear part of the machine, thereby party turning him and
making him fall to the ground; that thereupon the accused, in order to prevent the rear wheel
from striking the soldier, again changed the direction of the machine, thereby avoiding by
these two maneuvers the passage of the machine over the body of the soldier.

This argument is, in our judgment, not a strong one. The fact that the accused did not see the soldier
until the machine was very close to him is strong evidence of inattention to duty. The street at the
place where the accident occurred is wide and unobstructed. There is no building on either side of the
street. There is no place from which a person desiring to cross the street can dart out so suddenly and
unexpectedly as to give a chauffeur no opportunity to protect him. The street at the point where the
accident occurred was well lighted by electric light placed on both sides of the street. Besides, it is in
close proximity to McKinley Junction and there are a number of electric lights in and about the waiting
station located at that point. Under such circumstance there is no reason why the accused did not see
that soldier long before he had reached the position in the street where he was struck down. It is
claimed by the accused himself that the soldier was near the center of the street when the collision
occurred. In that event he must have walked in plain sight of the oncoming machine for many feet
before he arrived at the place where he was struck. He could not have risen out of the ground nor
could he have darted suddenly into the street from a side street or door. He was walking in an open,
level, and thoroughly lighted street for many feet before he was hit by the automobile; and the fact that
the accused, under such circumstances, did not see him is strong evidence that he was negligent.

The accused intimates in his testimony that a carromata was approaching him just before the accident
occurred and that it obscured his vision to such an extent that he did not see that soldier until the very
moment of meeting the carromata. This story is not corroborated by any other witness in the case. No
one else speaks of the presence there of a carromata and no one offers this as a person why the
soldier was not seen in time to avoid the accident. Moreover, if the soldier were crossing the street the
carromata would have obscured him for a moment only and there would have been abundant time to
observe him before he reached the carromata and after he had passed it. Besides, it is the duty of
`

automobile drivers in meeting a moving vehicle on the public streets and highways to use due care
and diligence to see to it that person who may be crossing behind the moving vehicle are not run down
by their automobiles. There is nothing in this story of the accused which, if true, relieves from the
charge of negligence under the other facts and circumstances disclosed by the evidence. It is to be
noted, also that counsel for the accused lays no stress on this portion of his story and does not make
it the basis of an argument in his behalf.

As we have said, the testimony and the exhibit show that the accident occurred at or near the McKinley
Junction, where there is a waiting station, a kiosko, and a hydrant, where many persons habitually
wait to transfer and where, as a matter of fact, even up to midnight, many persons stroll about waiting
for cars. The defendant was aware of these facts. Moreover, he testified himself that the street at that
place was not level, that the rails of the street-car track made it difficult for automobiles to cross or
pass over them and that keeping to the extreme left-hand side of the street would endanger the safety
of the automobile and the passengers. All of these are facts which require care and diligence on the
part of an automobile driver; and such a place should be approached guardedly, with the machine
under control and with ability to stop with reasonable quickness.

It appears clearly established by the evidence that the accused was driving on the right-hand side of
the street when the accident happened. According to the law of the road and the custom of the country
he should have been on the left-hand side of the street. According to the evidence there was abundant
room for him to drive upon what may properly be called the left-hand side of the street and still be free
from danger or risk. Instead of that he chose to take what appears from the evidence to have been
almost the extreme right-hand side of the street. Thomas M. Bill, who was a passenger in the
automobile which ran down the soldier, testified that the automobile at the time of the accident was
traveling on the right-hand side of the street. A. R. Stuart, who was driving an automobile approaching
the place of the accident from the opposite direction, testified that the victim was struck at the point
marked "A" on the plan introduced in evidence and that the automobile was located at the point marked
"B", a point indisputably on the right-hand side of the street; that the automobile, when it stopped after
the collision, was not standing parallel with the street but at an angle with the center line of the streets,
having turned toward the left-hand side of the street after it had continued upon what was to him the
left-hand side of the street, he would have run over the body of the soldier. The testimony showing
that the accused was driving on the right-hand side of the street is corroborated by the fact that the
witness Rabonsa, who testified on the trial that the accused was driving on the left-hand side of the
street, first declared, in his statement to the prosecuting attorney, that, at the time of the accident, the
automobile was being driven on the right-hand side of the street.

While it is true that the law does not draw an inference of negligence from the mere showing that there
was a collision between a man and an automobile on a public street but that negligence must be
proved, nevertheless, we believe it to be the rule that testimony that plaintiff, while driving on the right-
hand side of a wide road, was overtaken by an automobile which struck the hind wheel of his wagon,
establishes a case of negligence. (Salminen vs. Ross, 185 Fed., 997.) And a bicyclist has the burden
of disproving his negligence when he rides up behind another who is walking where he has a right to
walk and, without giving any warning strikes him with his vehicle. (Myers vs. hinds, 110 Mich ., 300.)
And we have held in the case of Cahpman vs. Underwood (27 Phil., Rep., 374), that where, in the an
action to recover damages for having been run down by defendant's automobile, it appeared that the
automobile, at the time the injury was produced, was being driven on the wrong side of the street, the
burden of proof was on defendant to establish that the accident occurred through other causes than
his negligence.

There is no evidence in the case which shows negligence on the part of the injured soldier. The mere
fact that he was run down by an automobile does not signify that he was negligent. At the time he was
struck he was, speaking from the direction in which the accused was driving the automobile at the
time, on the right-hand side of the street where he had a right to be and where the law fully protested
`

him from vehicles traveling in the direction in which tested him from vehicles traveling in the direction
in which the accused was driving at the time of the injury. The rule which requires travelers to look out
for trains at railroad crossings by stopping, looking and listening before they pass over the tracks does
not fix the measure of care which a pedestrian attempting to cross a street must use in looking out for
automobiles. Negligence and contributory negligence are matters to be proved, and the burden is on
the one alleging injury from negligence to establish it and upon the other alleging immunity because
of contributory negligence to establish it, unless soldier cannot be held to have been negligent except
upon evidence establishing that fact. The beggar on his crutches has the same right to the use of the
streets of the city as has the man in his automobile. Each is bound to the exercise of ordinary care for
his own safety and the prevention of injury to others, in the use thereof. (Millsaps vs. Brogdon, 32
L.R.A. (N.S.), 1177.) This is especially true when we take into consideration the assertion of the
accused that, by reason of the position of the street-car tracks, he was unable to take the left-hand
side of the street, which is the side which the law requires him to take, but that it was necessary for
him to pass in the middle of the street or a little to the right of the middle in other to make a safe
passage for the automobile and its passengers. We have held in the case of Chapman vs. Underwood
(27 Phil., Rep., 374), a case in which the defendant's chauffeur was driving on the wrong side of the
street at the time accident, which was the basis of the action, occurred, that 'defendant's driver was
guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car upon the
wrong side. The plaintiff, in coming out to board the car, was not obliged, for his own protection, to
observe whether a car was coming upon him from his left hand. He had only to guard against those
coming from the right. he knew that, according to the law of the road, no automobile or other vehicle
coming from his left hand should pass upon his side of the car. He needed only to watch for cars
coming from his right, as they were the only ones under the law permitted to pass upon that side of
the street car."

We regard it as clear from the record that the accused was driving much faster than he claims he was
or else he was negligent in not watching the street for foot passengers, or in the handing of hid
automobile. It is a matter of common knowledge that an automobile being driven at 10 miles an hour
can be stopped if, necessity requires it, within 10 or 15 feet at the most. That rate of speed is extremely
low for an automobile and , with such a sped, it can be stopped almost instantly. If, therefore, the
accused was going at the rate of 10 miles an hour only and saw the soldiers 20 feet ahead of him, he
could, without difficulty, have stopped the automobile and avoided the accident. As a necessary
consequence, the accused was either driving at a rate of speed much higher than that stated or else
he was negligent in not stopping his car. Furthermore, if he did not see that soldier until too late to
stop, the burden is on him to show why he did not. There is something wrong when a chauffeur runs
over a man who is in plain view of the automobile for a long distance before the point of the accident
is reached. No negligence on the part of the injured person has shown. Whichever way the case is
looked at, whether from the viewpoint of the failure to see the soldier in time to avoid the accident or
failure to stop or give warning by horn or whistle, it is clear that the learned trial court was right when
it held that the accused was guilty of negligence.

There is no competent evidence to show that the soldier was drunk at the time of the accident; but,
even if he was drunk, it is of little consequence in the decision of this case, it not having been shown
that such drunkenness contributed to the accident. Whatever his condition he could easily have been
seen by the automobile driver if he had been vigilant, as he should have been, in passing over the
streets of a city and especially in passing a place where many used by people on foot. It is not shown
that the soldier's drunkenness, if he was in that state, any degree contributed to the accident or that
the accident would have been avoided if he had been sober. We have held in the case of Wright vs.
Manila Electric Railroad and Light Co. (28 Phil., Rep., 122):

Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of
ordinary care. It is but a circumstance to be considered with the other evidence tending to
prove negligence. It is the general rule that it is immaterial whether a man is drunk or if no
`

want of ordinary care or prudence can be imputed to him, and no greater degree of care is
required to be exercised by an intoxicated man for his own protection than by a sober one. If
one's conduct is characterized by a proper degree of care and prudence, it is immaterial
whether he is drunk or sober. (Ward vs. Chicago etc. Ry. Co., 85 Wios., 601; Houston and
T.C. Ry. Ry. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, 402; Central R. and
Bkg. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. Co., 115 Mass., 239; Meyer
vs. Pacific R.R. Co., 40 Mo., 151; Chicago and N.W. Ry. Co. vs. Drake, 33 III. App., 114.)

The judgment appealed from is affirmed, with costs against the appellant. So ordered.
`

SECOND DIVISION

G.R. Nos. 74387-90 November 14, 1988

BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE HEIRS OF
NORMA NERI, and BAYLON SALES and NENA VDA. DE ROSALES, respondents.

Sibal, Custodia, Santos & Nofuente for petitioners.

Restituto L. Opis for respondents Pamfilos and Rosaleses.

Citizens Legal Assistance Office for N. Neri and Baylon Sales.

PARAS, J.:

Before Us is a Petition to Review by Certiorari, the decision 1 of the respondent appellate court which affirmed with modification the joint
decision of the trial court in four (4) cases involving similar facts and issues, finding favorably for the plaintiffs (private respondents herein),
the dispositive portion of said appellate judgment reading as follows:

WHEREFORE, with the modification that the death indemnity is raised to P30,000.00
to each set of the victims' heirs, the rest of the judgment appealed from is hereby
affirmed in toto. Costs against the defendants-appellants.

SO ORDERED. (p. 20, Rollo)

From the records of the case We have gathered the following antecedent facts:

The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company (BLTB, for
brevity) driven by Armando Pon and Bus No. 404 of Superlines Transportation Company
(Superlines, for brevity) driven by Ruben Dasco took place at the highway traversing Barangay
Isabong, Tayabas, Quezon in the afternoon of August 11, 1978, which collision resulted in the death
of Aniceto Rosales, Francisco Pamfilo and Romeo Neri and in several injuries to Nena Rosales (wife
of Anecito) and Baylon Sales, all passengers of the BLTB Bus No. 1046. The evidence shows that
as BLTB Bus No. 1046 was negotiating the bend of the highway, it tried to overtake a Ford Fiera car
just as Bus No. 404 of Superlines was coming from the opposite direction. Seeing thus, Armando
Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of his bus and tried to
return to his proper lane. It was an unsuccessful try as the two (2) buses collided with each other.

Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased Francisco Pamfilo,
Aniceto Rosales and Romeo Neri instituted separate cases in the Court of First Instance of
Marinduque against BLTB and Superlines together with their respective drivers praying for damages,
attorney's fees and litigation expenses plus costs. Criminal cases against the drivers of the two
buses were filed in the Court of First Instance of Quezon.

Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied liability by
claiming that they exercised due care and diligence and shifted the fault, against each other. They all
interposed counterclaims against the plaintiffs and crossclaims against each other.
`

After trial on the merits, the lower court exonerated defendants Superlines and its driver Dasco from
liability and attributed sole responsibility to defendants BLTB and its driver Pon, and ordered them
jointly and severally to pay damages to the plaintiffs. Defendants BLTB and Armando Pon appealed
from the decision of the lower court to respondent appellate court which affirmed with modification
the judgment of the lower court as earlier stated.

Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to wit:

THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT THE

ACTIONS OF PRIVATE RESPONDENTS ARE BASED ON CULPA
CONTRACTUAL. (p. 12, Rollo)

It is argued by petitioners that if the intention of private respondents were to file an action based on
culpa contractual or breach of contract of carriage, they could have done so by merely impleading
BLTB and its driver Pon. As it was in the trial court, private respondents filed an action against all the
defendants basing their action on culpa aquiliana or tort.

Petitioners' contentions deserve no merit. A reading of the respondent court's decision shows that it
anchored petitioners' liability both on culpa contractual and culpa aquiliana, to wit:

The proximate cause of the collision resulting in the death of three and injuries to two
of the passengers of BLTB was the negligence of the driver of the BLTB bus, who
recklessly operated and drove said bus by overtaking a Ford Fiera car as he was
negotiating the ascending bend of the highway (tsn, October 4, 1979, pp. 9-10, 35,
36, 61; Exhibit 6 Superlines, p. 47) which was divided into two lanes by a continuous
yellow strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus admitted in his
cross-examination that the continuous yellow line on the ascending bend of the
highway signifies a no-overtaking zone (tsn, October 4, 1979, p. 36). It is no surprise
then that the driver of the Superlines bus was exonerated by the lower court. He had
a valid reason to presuppose that no one would overtake in such a dangerous
situation. These facts show that patient imprudence of the BLTB driver.

It is well settled that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in ordinary situation has the duty to see that the road is
clear and not to proceed if he can not do so in safety (People v. Enriquez, 40 O.G.
No. 5, 984).

... Before attempting to pass the vehicle ahead, the rear driver must see that the road
is clear and if there is no sufficient room for a safe passage, or the driver ahead does
not turn out so as to afford opportunity to pass, or if, after attempting to pass, the
driver of the overtaking vehicle finds that he cannot make the passage in safety, the
latter must slacken his speed so as to avoid the danger of a collision, even bringing
his car to a stop if necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec. 212,
p. 195).

The above rule becomes more particularly applicable in this case when the
overtaking took place on an ascending curved highway divided into two lanes by a
continuous yellow line. Appellant Pon should have remembered that:

When a motor vehicle is approaching or rounding a curve there is special necessity

for keeping to the right side of the road and the driver has not the right to drive on the
`

left hand side relying upon having time to turn to the right if a car is approaching from
the opposite direction comes into view. (42 C.J. 42 906).

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. (Art. 2165, Civil Code).

In failing to observe these simple precautions, BLTB's driver undoubtedly failed to act
with the diligence demanded by the circumstances.

We now come to the subject of liability of the appellants.

For his own negligence in recklessly driving the truck owned by his employer,
appellant Armando Pon is primarily liable (Article 2176, Civil Code). <äre||anº•1àw>

On the other hand the liability of Pon's employer, appellant BLTB, is also primary,
direct and immediate in view of the fact that the death of or injuries to its passengers
was through the negligence of its employee (Marahan v. Mendoza, 24 SCRA 888,
894), and such liability does not cease even upon proof that BLTB had exercised all
the diligence of a good father of a family in the selection and supervision of its
employees (Article 1759, Civil Code).

The common carrier's liability for the death of or injuries to its passengers is based
on its contractual obligation to carry its passengers safely to their destination. That
obligation is so serious that the Civil Code requires "utmost diligence of very cautious
person (Article 1755, Civil Code). They are presumed to have been at fault or to have
acted negligently unless they prove that they have observed extraordinary diligence"
(Article 1756, Civil Code). In the present case, the appellants have failed to prove
extraordinary diligence. Indeed, this legal presumption was confirmed by the fact that
the bus driver of BLTB was negligent. It must follow that both the driver and the
owner must answer for injuries or death to its passengers.

The liability of BLTB is also solidarily with its driver (Viluan v. Court of Appeals, 16
SCRA 742, 747) even though the liability of the driver springs from quasi delict while
that of the bus company from contract. (pp. 17-19, Rollo)

Conclusively therefore in consideration of the foregoing findings of the respondent appellate court it
is settled that the proximate cause of the collision resulting in the death of three and injuries to two of
the passengers of BLTB was the sole negligence of the driver of the BLTB Bus, who recklessly
operated and drove said bus in a lane where overtaking is not allowed by Traffic Rules and
Regulations. Such negligence and recklessness is binding against petitioner BLTB, more so when
We consider the fact that in an action based on a contract of carriage, the court need not make an
express finding of fault or negligence on the part of the carrier in order to hold it responsible for the
payment of the damages sought by the passenger. By the contract of carriage, the carrier BLTB
assumed the express obligation to transport the passengers to their destination safely and to
observe extraordinary diligence with a due regard for all the circumstances, and any injury that might
be suffered by its passengers is right away attributable to the fault or negligence of the carrier (Art.
1756, New Civil Code).

Petitioners also contend that "a common carrier is not an absolute insurer against all risks of travel
and are not liable for acts or accidents which cannot be foreseen or inevitable and that responsibility
of a common carrier for the safety of its passenger prescribed in Articles 1733 and 1755 of the New
`

Civil Code is not susceptible of a precise and definite formulation." (p. 13, Rollo) Petitioners'
contention holds no water because they had totally failed to point out any factual basis for their
defense of force majeure in the light of the undisputed fact that the cause of the collision was the
sole negligence and recklessness of petitioner Armando Pon. For the defense of force majeure or
act of God to prosper the accident must be due to natural causes and exclusively without human
intervention.

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes

1 Penned by Justice Crisolito Pascual, concurred in by Justices Jose C. Campos, Jr.,

Serafin E. Camilon and Desiderio P. Jurado.
`

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 162987 May 21, 2009

SOFIA M. GUILLANG, represented by SUSAN GUILLANG-CABATBAT, REYNALDO,

GERARDO, BIENVENIDO, DAWNA, and NELLIE, all surnamed GUILLANG, GENARO
GUILLANG, JOSE DIGNADICE, and ALVIN LLANILLO, Petitioners,
vs.
RODOLFO BEDANIA and RODOLFO DE SILVA, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the 3 June 2003 Decision2 and the 23 March 2004 Resolution3 of the
Court of Appeals in CA-G.R. CV No. 69289. The 3 June 2003 Decision set aside the 5 December
2000 Decision4 of the Regional Trial Court, Branch 30, Manila (trial court). The 23 March 2004
Resolution denied the motion for reconsideration.

The Facts

On 25 October 1994, at about 5:45 in the afternoon, petitioner Genaro M. Guillang (Genaro) was
driving his brand new Toyota Corolla GLI sedan with conduction sticker no. 54-DFT (car) along
Emilio Aguinaldo Highway (highway) in Cavite. Genaro, Antero Guillang (Antero), Felipe Jurilla, Jose
Dignadice (Dignadice), and Alvin Llanillo (Llanillo) had all just left from Golden City, Dasmariñas,
Cavite, and were on their way to Manila. At the other side of the highway, respondent Rodolfo A.
Bedania (Bedania) was driving a ten-wheeler Isuzu cargo truck with plate no. CAC-923 (truck)
towards Tagaytay City. The truck was owned by respondent Rodolfo de Silva (de Silva).

Along the highway and the road leading to the Orchard Golf Course, Bedania negotiated a U-turn.
When the truck entered the opposite lane of the highway, Genaro’s car hit the right portion of the
truck. The truck dragged Genaro’s car some five meters to the right of the road.

As a consequence, all the passengers of the car were rushed to the De La Salle University Medical
Center in Dasmariñas, Cavite for treatment. Because of severe injuries, Antero was later transferred
to the Philippine General Hospital. However, on 3 November 1994, Antero died due to the injuries he
sustained from the collision. The car was a total wreck while the truck sustained minor damage.

On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the heirs of Antero5 instituted a
complaint for damages based on quasi-delict against respondents Bedania and de Silva.
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On 5 December 2000, the trial court rendered a decision in favor of petitioners. The trial court found
Bedania grossly negligent for recklessly maneuvering the truck by making a sudden U-turn in the
highway without due regard to traffic rules and the safety of other motorists. The trial court also
declared de Silva grossly negligent in the selection and supervision of his driver, Bedania. The
dispositive portion of the decision provides:

WHEREFORE, judgment is hereby rendered ordering defendants Rodolfo A. Bedania and Rodolfo
de Silva, jointly and severally, to pay plaintiffs, as follows:

1. The sum of ₱508,566.03 representing the damage/repair costs of the Toyota to

plaintiff Genaro M. Guillang.

2. The sum of ₱50,000.00 for the death of Antero Guillang plus ₱185,000.00 for his
burial expenses, to the heirs of Antero Guillang.

3. For hospital and medical expenses as reflected in Exhibits E, E-1 to E-30 to

plaintiffs Genaro M. Guillang, Jose Dignadice and Alvin Llanillo.

4. The sum of ₱50,000.00 as moral damages for the heirs of the deceased Antero
Guillang.

5. The sum of ₱50,000.00 as moral damages each to plaintiffs Jose Dignadice, Alvin
Llanillo and Genaro Guillang.

6. The sum of ₱50,000.00 as exemplary damages.

7. The sum of ₱100,000.00 as and for attorney’s fess.

8. The costs of the suit.

SO ORDERED.6

Respondents appealed to the Court of Appeals.

On 3 June 2003, the Court of Appeals rendered its decision in favor of respondents. The dispositive
portion of the decision provides:

IN VIEW OF ALL THE FOREGOING, the appealed decision is REVERSED and SET ASIDE. The
complaint of the herein appellees in Civil Case No. 95-73666 is DISMISSED, for lack of merit. The
appellants’ counterclaims in the instant case are likewise DISMISSED. No pronouncement as to
cost.

SO ORDERED.7

Petitioners filed a motion for reconsideration. On 23 March 2004, the Court of Appeals denied the
motion.

Hence, this petition.

The Ruling of the Regional Trial Court

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According to the trial court, there is a presumption that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation.8 In this case, the trial
court found that the Traffic Accident Investigation Report (report),9 corroborated by the testimonies of
the witnesses, showed that the truck committed a traffic violation by executing a U-turn without
signal lights. The trial court also declared that Bedania violated Sections 45(b),10 48,11 and 5412 of
Republic Act No. 413613 when he executed the sudden U-turn. The trial court added that Bedania
violated another traffic rule when he abandoned the victims after the collision.14 The trial court
concluded that Bedania was grossly negligent in his driving and held him liable for damages.

Moreover, the trial court found that Bedania did not make the U-turn at an intersection. According to
the trial court, vehicles trying to maneuver to change directions must seek an intersection where it is
safer to maneuver and not recklessly make a U-turn in a highway. The trial court said Bedania
should have observed extreme caution in making a U-turn because it was unexpected that a long
cargo truck would execute a U-turn along the highway.

The trial court also said that Bedania’s gross negligence raised the legal presumption that de Silva,
as Bedania’s employer, was negligent in the selection and supervision of his employees. The trial
court said that, under Articles 217615 and 218016 of the Civil Code, de Silva’s liability was based on
culpa aquiliana which holds the employer primarily liable for tortious acts of his employees, subject
to the defense that he exercised all the diligence of a good father of a family in the selection and
supervision of his employees. The trial court ruled that de Silva failed to prove this defense and,
consequently, held him liable for damages.

The Ruling of the Court of Appeals

The Court of Appeals reversed the trial court’s decision and said that the trial court overlooked
substantial facts and circumstances which, if properly considered, would justify a different conclusion
and alter the results of the case.

The Court of Appeals dismissed the testimonies of the witnesses and declared that they were
"contrary to human observation, knowledge and experience." The Court of Appeals also said that the
following were the physical evidences in the case:

1. It was not yet dark when the incident transpired;

2. The four-lane highway the appellees were cruising on was wide, straight, dry,
relatively plain and with no obstructions to the driver’s vision;

3. The point of impact of the collision is on the lane where the car was cruising and
the car hit the gas tank of the truck located at its right middle portion, which indicates
that the truck had already properly positioned itself and had already executed the U-
turn before the impact occurred;

4. Genaro Guillang was not able to stop the car in time and the car’s front portion
was totally wrecked. This negates appellees’ contention that they were traveling at a
moderate speed; and

5. The sheer size of the truck makes it improbable for the said vehicle to negotiate a
U-turn at a sudden and fast speed – as appellees vigorously suggest – without
toppling over on its side.17 (Citations omitted)
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The Court of Appeals concluded that the collision was caused by Genaro’s negligence. The Court of
Appeals declared that the truck arrived at the intersection way ahead of the car and had already
executed the U-turn when the car, traveling at a fast speed, hit the truck’s side. The Court of Appeals
added that considering the time and the favorable visibility of the road and the road conditions,
Genaro, if he was alert, had ample time to react to the changing conditions of the road. The Court of
Appeals found no reason for Genaro not to be prudent because he was approaching an intersection
and there was a great possibility that vehicles would be traversing the intersection either going to or
from Orchard Golf Course. The Court of Appeals said Genaro should have slowed down upon
reaching the intersection. The Court of Appeals concluded that Genaro’s failure to observe the
necessary precautions was the proximate cause of Antero’s death and the injuries of the petitioners.

The Court of Appeals also relied on the testimony of Police Traffic Investigator Efren Videna
(Videna) that the car was running at a fast speed and overtook another vehicle just before the
collision occurred.18 The Court of Appeals concluded that Genaro did not see the truck as the other
vehicle temporarily blocked his view of the intersection. The Court of Appeals also gave weight to
Videna’s testimony that it was normal for a ten-wheeler truck to make a U-turn on that part of the
highway because the entrance to Orchard Golf Course was spacious.19

The Issues

Petitioners raise the following issues:

1. Did the Court of Appeals decide a question of substance in this case in a way
probably not in accord with law or with the applicable decisions of the Honorable
Supreme Court?

2. Did the Court of Appeals depart from the accepted and usual course of judicial
proceedings particularly when it revised, and recast the findings of facts of the trial
court pertaining to credibility of witnesses of which the trial court was at the vantage
point to evaluate?

3. Did the Court of Appeals act with grave abuse of discretion amounting to lack of
jurisdiction when it rendered the palpably questionable Court of Appeals’ Decision
that tampered with the findings of fact of the trial court for no justifiable reason?

4. Is the Court of Appeals’ judgment and resolution reversing the decision of the trial
court supported by the evidence and the law and jurisprudence applicable?20

The issue in this case is who is liable for the damages suffered by petitioners. The trial court held
Bedania and de Silva, as Bedania’s employer, liable because the proximate cause of the collision
was the sudden U-turn executed by Bedania without any signal lights. On the other hand, the Court
of Appeals reversed the trial court’s decision and held Genaro liable because the proximate cause of
the collision was Genaro’s failure to stop the car despite seeing that Bedania was making a U-turn.

The Ruling of the Court

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by
certiorari under Rule 45 of the Rules of Court, only questions of law may be raised. The resolution of
factual issues is the function of the lower courts whose findings on these matters are received with
respect and are, as a rule, binding on this Court.21
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However, this rule is subject to certain exceptions. One of these is when the findings of the appellate
court are contrary to those of the trial court.22 Findings of fact of the trial court and the Court of
Appeals may also be set aside when such findings are not supported by the evidence or where the
lower courts’ conclusions are based on a misapprehension of facts.23 Such is the situation in this
case and we shall re-examine the facts and evidence presented before the lower courts.

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relations between the parties, is called a quasi-delict. To sustain
a claim based on quasi-delict, the following requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and effect between the
fault or negligence of defendant and the damage incurred by the plaintiff.24

There is no dispute that petitioners suffered damages because of the collision. However, the issues
on negligence and proximate cause are disputed.

On the Presumption of Negligence and Proximate Cause

Negligence is defined as the failure to observe for the protection of the interest of another person
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such
other person suffers injury. In Picart v. Smith,25 we held that the test of negligence is whether the
defendant in doing the alleged negligent act used that reasonable care and caution which an
ordinary person would have used in the same situation.

The conclusion of the Court of Appeals that Genaro was negligent is not supported by the evidence
on record. In ruling that Genaro was negligent, the Court of Appeals gave weight and credence to
Videna’s testimony. However, we find that Videna’s testimony was inconsistent with the police
records and report that he made on the day of the collision. First, Videna testified that the car was
running fast and overtook another vehicle that already gave way to the truck.26 But this was not
indicated in either the report or the police records. Moreover, if the car was speeding, there should
have been skid marks on the road when Genaro stepped on the brakes to avoid the collision. But the
sketch of the accident showed no skid marks made by the car.27 Second, Videna testified that the
petitioners came from a drinking spree because he was able to smell liquor.28 But in the report,29
Videna indicated that the condition of Genaro was "normal." Videna did not indicate in the report that
Genaro "had been drinking liquor" or that Genaro "was obviously drunk." Third, Videna testified that
when he arrived at the scene, Bedania was inside his truck.30 This contradicts the police records
where Videna stated that after the collision Bedania escaped and abandoned the victims.31 The
police records also showed that Bedania was arrested by the police at his barracks in Anabu, Imus,
Cavite and was turned over to the police only on 26 October 1994.32

Under Article 2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle
is presumed negligent if at the time of the mishap, he was violating any traffic regulation.

In this case, the report33 showed that the truck, while making the U-turn, failed to signal, a violation of
traffic rules. The police records also stated that, after the collision, Bedania escaped and abandoned
the petitioners and his truck.34 This is another violation of a traffic regulation.35 Therefore, the
presumption arises that Bedania was negligent at the time of the mishap.

The evidence presented in this case also does not support the conclusion of the Court of Appeals
that the truck had already executed the U-turn before the impact occurred. If the truck had fully made
the U-turn, it should have been hit on its rear.36 If the truck had already negotiated even half of the
turn and is almost on the other side of the highway, then the truck should have been hit in the middle
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portion of the trailer or cargo compartment. But the evidence clearly shows, and the Court of
Appeals even declared, that the car hit the truck’s gas tank, located at the truck’s right middle
portion, which disproves the conclusion of the Court of Appeals that the truck had already executed
the U-turn when it was hit by the car.

Moreover, the Court of Appeals said that the point of impact was on the lane where the car was
cruising. Therefore, the car had every right to be on that road and the car had the right of way over
the truck that was making a U-turn. Clearly, the truck encroached upon the car’s lane when it
suddenly made the U-turn.

The Court of Appeals also concluded that Bedania made the U-turn at an intersection. Again, this is
not supported by the evidence on record. The police sketch37 does not indicate an intersection and
only shows that there was a road leading to the Orchard Golf Course near the place of the collision.
Furthermore, U-turns are generally not advisable particularly on major streets.38 Contrary to Videna’s
testimony, it is not normal for a truck to make a U-turn on a highway. We agree with the trial court
that if Bedania wanted to change direction, he should seek an intersection where it is safer to
maneuver the truck. Bedania should have also turned on his signal lights and made sure that the
highway was clear of vehicles from the opposite direction before executing the U-turn.

The finding of the Court of Appeals that it was not yet dark when the collision occurred is also not
supported by the evidence on record. The report stated that the daylight condition at the time of the
collision was "darkness."39

Contrary to the conclusion of the Court of Appeals, the sheer size of the truck does not make it
improbable for the truck to execute a sudden U-turn. The trial court’s decision did not state that the
truck was traveling at a fast speed when it made the U-turn. The trial court said the truck made a
"sudden" U-turn, meaning the U-turn was made unexpectedly and with no warning, as shown by the
fact that the truck’s signal lights were not turned on.

Clearly, Bedania’s negligence was the proximate cause of the collision which claimed the life of
Antero and injured the petitioners. Proximate cause is that which, in the natural and continuous
sequence, unbroken by any efficient, intervening cause, produces the injury, and without which the
result would not have occurred.40 The cause of the collision is traceable to the negligent act of
Bedania for if the U-turn was executed with the proper precaution, the mishap in all probability would
not have happened. The sudden U-turn of the truck without signal lights posed a serious risk to
oncoming motorists. Bedania failed to prevent or minimize that risk. The truck’s sudden U-turn
triggered a series of events that led to the collision and, ultimately, to the death of Antero and the
injuries of petitioners.

We agree with the trial court that de Silva, as Bedania’s employer, is also liable for the damages
suffered by petitioners. De Silva failed to prove that he exercised all the diligence of a good father of
a family in the selection and supervision of his employees.

On the Award of Damages and Attorney’s Fees

According to prevailing jurisprudence, civil indemnity for death caused by a quasi-delict is pegged at
₱50,000.41 Moral damages in the amount of ₱50,000 is also awarded to the heirs of the deceased
taking into consideration the pain and anguish they suffered.42 Bienvenido Guillang (Bienvenido),
Antero’s son, testified that Sofia, Antero’s wife and his mother, became depressed after Antero’s
death and that Sofia died a year after.43 Bienvenido also testified on the pain and anguish their family
suffered as a consequence of their father’s death.44 We sustain the trial court’s award of ₱50,000 as
indemnity for death and ₱50,000 as moral damages to the heirs of Antero.
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As to funeral and burial expenses, the court can only award such amount as are supported by
proper receipts.45 In this case, petitioners proved funeral and burial expenses of ₱55,000 as
evidenced by Receipt No. 1082,46 ₱65,000 as evidenced by Receipt No. 114647 and ₱15,000 as
evidenced by Receipt No. 1064,48 all issued by the Manila South Cemetery Association, Inc.,
aggregating ₱135,000. We reduce the trial court’s award of funeral and burial expenses from
₱185,000 to ₱135,000.

As to hospitalization expenses, only substantiated and proven expenses, or those that appear to
have been genuinely incurred in connection with the hospitalization of the victims will be recognized
in court.49 In this case, the trial court did not specify the amount of hospitalization expenses to be
awarded to the petitioners. Since petitioners presented receipts for hospitalization expenses during
the trial, we will determine the proper amounts to be awarded to each of them. We award
hospitalization expenses of ₱27,000.98 to the heirs of Antero,50 ₱10,881.60 to Llanillo,51 ₱5,436.77
to Dignadice,52 and ₱300 to Genaro53 because these are the amounts duly substantiated by receipts.

We affirm the trial court’s award of ₱508,566.03 for the repair of the car. The Court notes that there
is no dispute that Genaro was driving a brand new Toyota Corolla GLI sedan and that, after the
collision, the car was a total wreck. In this case, the repair order presented by Genaro is sufficient
proof of the damages sustained by the car.54 1avv phi 1.zw+

Moral damages may be recovered in quasi-delicts causing physical injuries.55 However, in

accordance with prevailing jurisprudence, we reduce the award of moral damages from ₱50,000 to
₱30,000 each to Llanillo, Dignadice, and Genaro since they only suffered physical injuries brought
about by the collision.56

In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.57
While the amount of exemplary damages need not be proved, the plaintiff must show that he is
entitled to moral, temperate or compensatory damages before the court may consider the question
of whether or not exemplary damages should be awarded.58 In this case, Bedania was grossly
negligent in suddenly making a U-turn in the highway without signal lights. To serve as an example
for the public good, we affirm the trial court’s award of exemplary damages in the amount of
₱50,000.

Finally, we affirm the trial court’s award of attorney’s fees in the amount of ₱100,000. Under Article
2208 of the Civil Code, attorney’s fees may be recovered when, as in this case, exemplary damages
are awarded.

WHEREFORE, we REVERSE the 3 June 2003 Decision and 23 March 2004 Resolution of the Court
of Appeals in CA-G.R. CV No. 69289. We REINSTATE with MODIFICATIONS the 5 December
2000 Decision of the Regional Trial Court, Branch 30, Manila. We ORDER Rodolfo Bedania and
Rodolfo de Silva, jointly and severally, to pay the following amounts:

1. Funeral and Burial Expenses of ₱135,000 to the heirs of Antero Guillang;

2. Hospitalization Expenses of ₱27,000.98 to the heirs of Antero Guillang,

₱10,881.60 to Alvin Llanillo, ₱5,436.77 to Jose Dignadice, and ₱300 to Genaro
Guillang; and

3. Moral damages of ₱30,000 each to Alvin Llanillo, Jose Dignadice, and Genaro
Guillang.

SO ORDERED.
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ANTONIO T. CARPIO
Associate Justice
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