MARINDUQUE IRON MINES AGENTS V WORKMENS

COMPENSATION COMMISSION
99 PHIL 48 BENGZON; June 30, 1956
NATURE
Petition for review on certiorari of a decision of the WCC
FACTS
- A truck driven by Procopio Macunat, belonging to Marinduque,
turned over and hit a coconut tree resulting in the death of Pedro
Mamador and injury to the other laborers.
- Macunat was prosecuted, convicted and was sentenced to indemnify
the heirs of the deceased. He has paid nothing, however, to the latter.
- Deceaseds wife now seeks compensation by Marinduque as the
employer.
ISSUE
1. WON Mamador has a right to compensation by Marinduque
2. WON there was notorious negligence by the deceased for having
violated the employers prohibition to ride haulage trucks
HELD
1. YES
- Petitioner alleges that the criminal case sentencing Macunat to
indemnify the heirs of the deceased was a suit for damages against a
third person, thereby having the effect of releasing the employer from
liability.
- The criminal case, however, was not a suit for damages against third
persons because the heirs did not intervene therein and they have not
received the indemnity ordered by the court.
- At any rate, even if the case was against a third person, the court
already decided in Nava vs. Inchausti that criminal prosection of the
"other person" does not affect the liability of the employer.
- Petitioner also contends that the amicable settlement entered into by
Mamador's widow and Macunat barred the widow's claim against the
employer because she has already elected one of the remedies.
- This contention cannot be sustained because what the widow
waived was the offender's criminal proscution and not all civil action
for damages.
2. NO
- Mere riding on a haulage truck or stealing a ride thereon is not
negligence, ordinarily. It couldn't be, because transportation by truck
is not dangerous per se.
- Although the employer prohibited its employees to ride the haulage
trucks, its violation does not constitute negligence per se, but it may
be an evidence of negligence.
- Under the circumstance, however, it cannot be declared negligence
because the proibition had nothing to do with the personal safety of
the riders.
- Notorious negligence means the same as gross negligence which
implies "conscious indifferenece to consequences", "pursuing a
course of conduct which would naturally and probably result in
injury".
Disposition Award for compensation by WCC affirmed

C. PROOF OF NEGLIGENCE
1. BURDEN OF PROOF
RULES OF COURT
RULE 131 Burden of Proof and Presumptions

B. DEGREES OF NEGLIGENCE
CIVIL CODE
Art. 2231. In quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence.

Section 1. Burden of proof. Burden of proof is the duty of a party to

present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. The following are instances of
conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led to another to believe a particular
thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
falsify it:
(b) The tenant is not permitted to deny the title of his landlord at
the time of commencement of the relation of landlord and tenant
between them. (3a)
Section 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by other
evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his
voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if
produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for
the later one is produced;
(j) That a person found in possession of a thing taken in the doing
of a recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the
payment of the money, or the delivery of anything, has paid the
money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed
or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines
or elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid
before the court and passed upon by it; and in like manner that all
matters within an issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a
sufficient consideration;
(t) That an endorsement of negotiable instrument was made before
the instrument was overdue and at the place where the instrument
is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the
regular course of the mail;
(w) That after an absence of seven years, it being unknown
whether or not the absentee still lives, he is considered dead for all
purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.
The following shall be considered dead for all purposes including the division
of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage,
or an aircraft with is missing, who has not been heard of
for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in
armed hostilities, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and whose existence has not been
known for four years;
(4) If a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
belief that the absent spouse is already death. In case of
disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of

Page

III NEGLIGENCE

Section 4. No presumption of legitimacy or illegitimacy. There is no

presumption of legitimacy of a child born after three hundred days following
the dissolution of the marriage or the separation of the spouses. Whoever
alleges the legitimacy or illegitimacy of such child must prove his allegation.
(6)

2. PRESUMPTION
CIVIL CODE
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable
with his driver, if the former, who was in the vehicle, could have, by
the use of the due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty or
reckless driving or violating traffic regulations at least twice within
the next preceding two months.
If the owner was not in the motor vehicle, the provisions of Article
2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. (
Art. 2188. There is prima facie presumption of negligence on the part
of the defendant if the death or injury results from his possession of
dangerous weapons or substances, such as firearms and poison,
except when the possession or use thereof is indispensable in his
occupation or business. (n)
Art. 1734. Common carriers are responsible for the loss, destruction,
or deterioration of the goods, unless the same is due to any of the
following causes only:
(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
(2) Act of the public enemy in war, whether international or
civil;
(3) Act of omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or
in the containers;
(5) Order or act of competent public authority.
Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4,
and 5 of the preceding article, if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or
to have acted negligently, unless they prove that they observed
extraordinary diligence as required in Article 1733.

RES IPSA LOQUITUR

3.

LAYUGAN V IAC
167 SCRA 363 SARMIENTO; November 14, 1968
NATURE: Petition for review on certiorari of IAC decision
FACTS
- Plaintiff Pedro Layugan testified that while in Bagabag, Nueva
Vizcaya, he and a companion were repairing the tire of their cargo
truck which was parked along the right side of the National Highway.
Defendant's truck driven recklessly by Daniel Serrano bumped the
plaintiff, that as a result, plaintiff was injured and hospitalized. Due
to said injuries, his left leg was amputated so he had to use crutches
to walk.
- Defendant Godofredo Isidro admitted his ownership of the vehicle
involved in the accident driven by Daniel Serrano. Defendant said
that the plaintiff was merely a bystander, not a truck helper being a
brother-in-law law of the driver of said truck; that the truck allegedly
being repaired was parked, occupying almost half of the right lane
towards Solano, Nueva Vizcaya, right after the curve; that the

Page

only two years shall be sufficient for the purpose of

contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceedings as provided in the
Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of
nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a contract
of copartneship;
(aa) That a man and woman deporting themselves as husband and
wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively with each
other as husband and wife without the benefit of marriage or under
void marriage, has been obtained by their joint efforts, work or
industry.
(cc) That in cases of cohabitation by a man and a woman who are
not capacitated to marry each other and who have acquire properly
through their actual joint contribution of money, property or
industry, such contributions and their corresponding shares
including joint deposits of money and evidences of credit are
equal.
(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such termination
of the former marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days after
the solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days
following the celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues as long as is usual
with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports of
cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to him
when such presumption is necessary to perfect the title of such
person or his successor in interest;
(jj) That except for purposes of succession, when two persons
perish in the same calamity, such as wreck, battle, or conflagration,
and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is
determined from the probabilities resulting from the strength and
the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older
is deemed to have survived;
2. If both were above the age sixty, the younger is
deemed to have survived;
3. If one is under fifteen and the other above sixty, the
former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be
different, the male is deemed to have survived, if the
sex be the same, the older;
5. If one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, they shall be considered to have died
at the same time. (5a)

Reasoning
[1] Negligence defined. Negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not
do
[2] Applying the definition and the test, it is clear that the absence or
want of care of Daniel Serrano has been established by clear and
convincing evidence. Whether cargo truck was parked along the road
or on half the shoulder of the road is immaterial taking into account
the warning device consisting of the lighted kerosene lamp placed 34m from the back of the truck. But despite this warning, the Isuzu
truck driven by Serrano, still bumped the rear of the parked cargo
truck. As a direct consequence of such accident Layugan sustained
injuries on his left forearm and left foot.
2. NO
Note that for our purposes this was not raised as an issue in this case.
Therefore this only Obiter Dicta. But as far as were concerned and
relevant to our discussion in the outline, I formulated it in an issuetype. This is what the Court actually said in the case to prove its just
obiter, and its relevant to the main issue on negligence: At this
juncture, it may be enlightening and helpful in the proper resolution

RAMOS V CA
321 SCRA 584 KAPUNAN; December 29, 1999
NATURE: Petition For Certiorari
FACTS
- In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made liable for
the unfortunate comatose condition of a patient scheduled for
cholecystectomy.
- Plaintiff Erlinda Ramos was a robust woman except for occasional
complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder she was as normal as any other
woman. Because the discomforts somehow interfered with her
normal ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall bladdershe
underwent a series of examinations which included blood and urine
tests which indicated she was fit for surgery. She and her husband
Rogelio met for the first time Dr. Orlino Hozaka, one of the
defendants in this case, on June 10, 1985. They agreed that their date
at the operating table at the De Los Santos Medical Center, would be
on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should
undergo a cholecystectomy operation after examining the
documents presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,

of the issue of negligence to examine the doctrine of Res ipsa

loquitur.
Obiter
[1] What is the doctrine of Res Ipsa Loquitur? 2 ways to put it:
(a) This doctrine is stated thus: "Where the thing which causes injury
is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords
reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care, and
(b) According to Blacks Law dictionary, Res ipsa loquitur. The
thing speaks for itself Rebuttable presumption or inference that
defendant was negligent, which arises upon proof that instrumentality
causing injury was in defendant's exclusive control, and that the
accident was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby negligence
of alleged wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances attending
it lead reasonably to belief that in absence of negligence it would not
have occurred and that thing which caused injury is shown to have
been under management and control of alleged wrongdoer.
[2] In our jurisdiction, and the way we apply it in cases, particularly
in the law of negligence: Res ipsa loquitur as a rule of evidence 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 doctrine is not a rule
of substantive law but merely a mode of proof or a mere procedural
convenience. The doctrine merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. The doctrine can
be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. So, it is
inapplicable where plaintiff has knowledge and testifies or presents
evidence as to the specific act of negligence which is the cause of the
injury, or where theres direct evidence as to the precise cause of the
accident and all the facts and circumstances attendant on the
occurrence clearly appear. And once the actual cause of injury is
established beyond controversy, no presumptions will be involved
and the doctrine becomes inapplicable when the circumstances show
that no inference of defendant's liability can reasonably be made,
whatever the source of the evidence.
In this case it is inapplicable because it was established by clear and
convincing evidence the negligence of the defendant driver.
Disposition
Petition GRANTED with costs against private
respondents.

Page

proximate cause of the incident was the failure of the driver of the
parked truck in installing the early warning device,
- Daniel Serrano, defendant driver, said that he knew the
responsibilities of a driver; that before leaving, he checked the truck.
The truck owner used to instruct him to be careful in driving. He
bumped the truck being repaired by Pedro Layugan, plaintiff, while
the same was at a stop position. From the evidence presented, it has
been established clearly that the injuries sustained by the plaintiff was
caused by defendant's driver, Daniel Serrano. Serrano also testified
that, When I was a few meters away, I saw the truck which was
loaded with round logs. I stepped on my foot brakes but it did not
function with my many attempts. I have (sic) found out later that the
fluid pipe on the rear right was cut that's why the breaks did not
function.
- Plaintiff points to the negligence of the defendant driver while
Isidro points to the driver of parked truck as negligent, and says that
absent such proof of care, it would, under the doctrine of res ipsa
loquitur, evoke the presumption of negligence on the part of the
driver of the parked cargo truck as well as his helper, the petitioner
herein, who was fixing the flat tire of the said truck.
ISSUES
1. WON defendant driver Serrano was negligent
2. WON the doctrine of res ipsa loquitur applies in this case
HELD
1 NO
- (Procedural) Ratio Findings of fact are entitled to great respect and
will not ordinarily be disturbed by this Court unless it falls down
under the exceptions provided by the Court to merit review of the
facts.
Reasoning
- This is a question of fact. But this case is an exception since: 1) the
finding are grounded entirely on speculation, surmise, or conjecture;
2) the inference made is manifestly mistaken, 3) the judgment is
based on misapprehension of facts; 4) CA findings are contrary to
those of the trial court; 5) the said findings of fact are conclusions
without citation of specific evidence on which they are based; and 6)
when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted on record. Hence, SC
entertained review of the factual question.
- (Substantive) Ratio 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.

July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. Meanwhile
petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration contending that the period to
file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its Resolution,
dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already
expired.
- A copy of the above resolution was received by Atty. Sillano on 11
April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present
petition for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty (30) days
after the expiration of the fifteen-day (15) period counted from the
receipt of the resolution of the Court of Appeals within which to
submit the petition. The due date fell on 27 May 1996. The petition
was filed on 9 May 1996, well within the extended period given by
the Court.
ISSUES
1. WON it should be dismissed for being filed later than allowable 15
day period for the filing of the Motion for Reconsideration
2. WON the doctrine of res ipsa loquitur is applicable
3. WON the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether
the alleged negligence was the proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if the Court of
Appeals erred in relying on the testimonies of the witnesses for the
private respondents
4. What is the cost for the damages
HELD
1. NO
- A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the fact
that the decision of the Court of Appeals was not sent to then counsel
on record of petitioners, the Coronel Law Office. In fact, a copy of
the decision of the appellate court was instead sent to and received by
petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly
addressed as Atty. Rogelio Ramos.
Based on the other
communications received by petitioner Rogelio Ramos, the appellate
court apparently mistook him for the counsel on record. Thus, no
copy of the decision of the appellate court was furnished to the
counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred
the same to a legal counsel only on 20 June 1995.
- It is elementary that when a party is represented by counsel, all
notices should be sent to the partys lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his
counsel on record is no notice at all. In the present case, since a copy
of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration cannot
be taken against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied
the motion for reconsideration of petitioner, we believe that the
receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the
petition before us was submitted on time.
2. YES
- We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.

Page

assured Rogelio that he will get a good anesthesiologist. She was

admitted in the hospital and was with her sister-in-law, Herminda
Cruz, who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. After praying, she
was given injections. At the operating room, Herminda saw about
two or three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a member of the
hospital staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was allowed to stay inside
the operating room.
- Hours later at about 12:15 P.M., Herminda Cruz, who was inside
the operating room with the patient, heard somebody say that Dr.
Hosaka is already here. She then saw people inside the operating
room moving, doing this and that, [and] preparing the patient for the
operation. As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of
the nailbeds of the left hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then heard Dr. Hosaka issue an order
for someone to call Dr. Calderon, another anesthesiologist. After Dr.
Calderon arrived at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed became bluish
and the patient was placed in a trendelenburg position. Immediately
thereafter, she went out of the operating room, and she told Rogelio
E. Ramos that something wrong was x x x happening. Dr.
Calderon was then able to intubate the patient.
- Herminda Cruz immediately rushed back, and saw that the patient
was still in trendelenburg position. At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit
(ICU).
- Doctors Gutierrez and Hosaka were also asked by the hospital to
explain what happened to the patient. The doctors explained that the
patient had bronchospasm. Erlinda Ramos stayed for about four
months in the hospital, she incurred hospital bills amounting to
P93,542.25. She has been in a comatose condition. After being
discharged from the hospital, she has been staying in their residence,
still needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to P10,000.00.
She was also diagnosed to be suffering from diffuse cerebral
parenchymal damage.
- Petitioners filed a civil case for damages with the Regional Trial
Court of Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos.
- During the trial, both parties presented evidence as to the possible
cause of Erlindas injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the damage
sustained by Erlinda was due to lack of oxygen in her brain caused by
the faulty management of her airway by private respondents during
the anesthesia phase. On the other hand, private respondents
primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was
Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
- Regional Trial Court rendered judgment in favor of petitioners.
Court of Appeals reversed.
- The decision of the Court of Appeals was received on 9 June 1995
by petitioner Rogelio Ramos who was mistakenly addressed as Atty.
Rogelio Ramos. No copy of the decision, however, was sent nor
received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion
for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4

applicable, and must establish that the essential elements of the

doctrine were present in a particular incident.
- In cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony, where the court from
its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn giving rise
to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without
need to produce expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
- It does not automatically apply to all cases of medical negligence as
to mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to
be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as
such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure
results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the
usual procedure of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves
the merits of a diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of the operation
any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man
as the negligent cause or causes of the untoward consequence. If
there was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to explain
the matter, by evidence of exculpation, if he could.
3. YES
- The CA commited a reversible error. Private respondents were
unable to disprove the presumption of negligence on their part in the
care of Erlinda and their negligence was the proximate cause of her
piteous condition.
- Dra. Gutierrez failed to properly intubate the patient. In the case at
bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the
first time on the day of the operation itself, on 17 June 1985. Before
this date, no prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up and needs
of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the
first time only an hour before the scheduled operative procedure was,
therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the physicians centuriesold Hippocratic Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.

Page

- Considering that a sound and unaffected member of the body (the

brain) is injured or destroyed while the patient is unconscious and
under the immediate and exclusive control of the physicians, we hold
that a practical administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these circumstances the
Court would be able to say, as a matter of common knowledge and
observation, if negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in the
diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine of res ipsa
loquitur.
- Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable in any
and all cases where injury occurs to a patient while under anesthesia,
or to any and all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ipsa loquitur
coverage.
- Res ipsa loquitur is a Latin phrase which literally means the thing
or the transaction speaks for itself. The phrase res ipsa loquitur is
a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise
a presumption of negligence, or make out a plaintiffs prima facie
case, and present a question of fact for defendant to meet with an
explanation. 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 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 or was caused by the
defendants want of care.
- The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality
causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from
the mere occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
- However, much has been said that res ipsa loquitur is not a rule of
substantive law and, as such, does not create or constitute an
independent or separate ground of liability. Instead, it is considered as
merely evidentiary or in the nature of a procedural rule. It is regarded
as a mode of proof, or a mere procedural convenience since it
furnishes a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. In other words, mere
invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process
of such proof, permitting the plaintiff to present along with the proof
of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to
thereby place on the defendant the burden of going forward with the
proof. Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the
absence of someones negligence;
2. It is caused by an instrumentality within the exclusive control of
the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
- In the above requisites, the fundamental element is the control of
the instrumentality which caused the damage. Such element of
control must be shown to be within the dominion of the defendant.
In order to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it is

moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in
the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physicians performance as a
specialist is generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
- In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting consultant staff.
While
consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patients condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment
of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and visiting
physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent
doctors for petitioners condition.
- The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but
also for those of others based on the formers responsibility under a
relationship of patria potestas. Such responsibility ceases when the
persons or entity concerned prove that they have observed the
diligence of a good father of the family to prevent damage. In other
words, while the burden of proving negligence rests on the plaintiffs,
once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they
observed the diligence of a good father of a family to prevent
damage.
- In the instant case, respondent hospital, apart from a general denial
of its responsibility over respondent physicians, failed to adduce
evidence showing that it exercised the diligence of a good father of a
family in the hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it exercised
over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible with
its physicians for Erlindas condition.
- Upon these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the Civil Code.
4. Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least reflect the
correct minimum cost of proper care, not the cost of the care the
family is usually compelled to undertake at home to avoid
bankruptcy.
- Art. 2199. - Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
- Our rules on actual or compensatory damages generally assume that
at the time of litigation, the injury suffered as a consequence of an act
of negligence has been completed and that the cost can be liquidated.
However, these provisions neglect to take into account those
situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the
injury, while certain to occur, are difficult to predict.
- In these cases, the amount of damages which should be awarded, if
they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would meet pecuniary

Page

- Private respondents repeatedly hammered the view that the cerebral

anoxia which led to Erlindas coma was due to bronchospasm
mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr.
Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine,
who advanced private respondents' theory that the oxygen deprivation
which led to anoxic encephalopathy, was due to an unpredictable
drug reaction to the short-acting barbiturate. We find the theory of
private respondents unacceptable.
- First of all, Dr. Jamora cannot be considered an authority in the field
of anesthesiology simply because he is not an anesthesiologist. Since
Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and
procedure and their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of
explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).
- An anesthetic accident caused by a rare drug-induced bronchospasm
properly falls within the fields of anesthesia, internal medicineallergy, and clinical pharmacology.
The resulting anoxic
encephalopathy belongs to the field of neurology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted
that he could not testify about the drug with medical authority, it is
clear that the appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of Thiopental Sodium.
- Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
occurred. An injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence in the case, that
the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the
act or omission. It is the dominant, moving or producing cause.
- Respondent Dr. Hosakas negligence can be found in his failure to
exercise the proper authority (as the captain of the operative team)
in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlindas cholecystectomy, and
was in fact over three hours late for the latters operation. Because of
this, he had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was remiss
in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlindas condition.
- We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting consultants, who are
allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However,
the difficulty is only more apparent than real.
- In the first place, hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for consultant slots, visiting
or attending, are required to submit proof of completion of residency,
their educational qualifications; generally, evidence of accreditation
by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized
by members of the hospital administration or by a review committee
set up by the hospital who either accept or reject the application. This
is particularly true with respondent hospital.
- After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents,

BATIQUIN V CA (Villegas)
258 SCRA 334 DAVIDE; July 5, 1996
NATURE: Petition for review of the decision of the Court of
Appeals
FACTS
- Mrs. Villegas submitted to Dr. Batiquin for prenatal care as the
latter's private patient sometime before September 21, 1988. In the
morning of September 21, 1988 Dr. Batiquin, along with other
physicians and nurses, performed a caesarian operation on Mrs.
Villegas and successfully delivered the latters baby.

- After leaving the hospital, Mrs. Villegas began to suffer abdominal

pains and complained of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. However, the pains still kept
recurring. She then consulted Dr. Ma. Salud Kho. After examining
her, Dr Kho suggested that Mrs. Villegas submit to another surgery.
- When Dr. Kho opened the abdomen of Mrs. Villegas she found
whitish-yellow discharge inside, an ovarian cyst on each of the left
and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the uterus,
embedded on the ovarian cyst. The piece of rubber appeared to be a
part of a rubber glove. This was the cause of all of the infection of the
ovaries and consequently of all the discomfort suffered by Mrs.
Villegas
- The piece of rubber allegedly found was not presented in court, and
Dr. Kho testified that she sent it to a pathologist in Cebu City for
examination. Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical Certificate, a Progress
Record, an Anesthesia Record, a Nurse's Record, and a Physician's
Discharge Summary. The trial court, however, regarded these
documentary evidence as mere hearsay, "there being no showing that
the person or persons who prepared them are deceased or unable to
testify on the facts therein stated
- There was also doubts as to the whereabouts of the piece of rubber,
as 2 versions arose from Dr. Khos testimony: 1) that it was sent to
the Pathologist in Cebu as testified to in Court by Dr. Kho and (2)
that Dr. Kho threw it away as told by her to Defendant. The failure of
the Plaintiffs to reconcile these two different versions served only to
weaken their claim against Defendant Batiquin. The trial court ruled
in favor of the defendants. The CA reversed the decision.
ISSUES
Procedural: WON the court can review questions of fact
Substantive: WON Dr. Batiquin is liable
HELD
Procedural: YES
- While the rule is that only questions of law may be raised in a
petition for review on certiorari, there are exceptions, among which
are when the factual findings of the trial court and the appellate court
conflict, when the appealed decision is clearly contradicted by the
evidence on record, or when the appellate court misapprehended the
facts
Substantive
- The focal point of the appeal is Dr. Khos testimony. There were
inconsistencies within her own testimony, which led to the different
decision of the RTC and CA. The CA was correct in saying that the
trial court erred when it isolated the disputed portion of Dr. Khos
testimony and did not consider it with other portions of Dr. Khos
testimony. Also, the phrase relied upon by the trial court does not
negate the fact that Dr. Kho saw a piece of rubber in private
respondent Villegas' abdomen, and that she sent it to a laboratory and
then to Cebu City for examination by a pathologist. Furthermore, Dr.
Kho's knowledge of the piece of rubber could not be based on other
than first hand knowledge for, as she asserted before the trial court.
- It is also worth noting that the trial court paid heed to Dr. Batiquins
testimony, that there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands upon removing her
gloves. But the trial court failed to recognized that these were mere
denials or negative testimonies. Well-settled is the rule that positive
testimony is stronger than negative testimony.
- While the petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a reading of the said testimony
reveals no such infirmity and establishes Dr. Kho as a credible
witness. Dr. Kho was frank throughout her turn on the witness
stand. Furthermore, no motive to state any untruth was ever imputed
against Dr. Kho, leaving her trustworthiness unimpaired. The trial
court's following declaration shows that while it was critical of the
lack of care with which Dr. Kho handled the piece of rubber, it was
not prepared to doubt Dr. Kho's credibility, thus only supporting out
appraisal of Dr. Kho's trustworthiness.

Page

loss certain to be suffered but which could not, from the nature of the
case, be made with certainty. In other words, temperate damages can
and should be awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that
these damages cover two distinct phases.
- As it would not be equitable - and certainly not in the best interests
of the administration of justice - for the victim in such cases to
constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are appropriate. The amount given as temperate
damages, though to a certain extent speculative, should take into
account the cost of proper care.
- In the instant case, petitioners were able to provide only homebased nursing care for a comatose patient who has remained in that
condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would
allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be
compelled by dire circumstances to provide substandard care at home
without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.
- Meanwhile, the actual physical, emotional and financial cost of the
care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if
petitioners condition remains unchanged for the next ten years.
- The husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have fashioned
their daily lives around the nursing care of petitioner, altering their
long term goals to take into account their life with a comatose patient.
They, not the respondents, are charged with the moral responsibility
of the care of the victim. The familys moral injury and suffering in
this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
- Finally, by way of example, exemplary damages in the amount of
P100,000.00 are hereby awarded. Considering the length and nature
of the instant suit we are of the opinion that attorneys fees valued at
P100,000.00 are likewise proper.
DISPOSITION the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and
attorneys fees; and, 5) the costs of the suit.

D. DEFENSES
1. PLAINTIFFS NEGLIGENCE
Art. 2179, CC. When the plaintiff's own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall mitigate
the damages to be awarded. (n)
MANILA ELECTRIC CO. V REMONQUILLO
99 PHIL 117 MONTEMAYOR; May 18, 1956
NATURE: Petition for review by certiorari of a decision of the Court
of Appeals.
FACTS
- August 22, 1950: Efren Magno went to the house of Antonio
Pealoza, hid stepbrother, on Rodriguez Lanuza St, Manila, to repair
a leaking media agua. The media agua was just below the
window of the third story.
- Standing on said media agua, Magno received from his son thru
the window a 3x6 galvanized iron sheet to cover the leaking
portion. The lower end of the iron sheet came into contact with the
electric wire of the Manila Electric Company parallel to the media
agua and 2 feet from it, causing his death by electrocution.

D.M. CONSUNJI V CA
357 SCRA 249 KAPUNAN; April 20, 2001
NATURE
Appeal from CA affirming decision of RTC ordering defendant D.M.
Consunji, Inc. to pay damages to plaintiff Maria J. Juego
FACTS
- At around 1:30 p.m., November 2, 1990, Jose Juego, a construction
worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance
Tower, Pasig City to his death. Investigation disclosed that while
victim Jose A. Juego together with Jessie Jaluag and Delso Destajo
were performing their work on board a steel platform with 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 platform came loose
causing the whole platform assembly and the victim to fall down to
the basement of the elevator core of the building under construction,
save his 2 companions who luckily jumped out for safety.
- On May 9, 1991, Jose Juegos widow, Maria, filed in the RTC of
Pasig a complaint for damages against D.M. Consunji, Inc. The
employer raised, among other defenses, the widows prior availment
of the benefits from the State Insurance Fund. After trial, the RTC
rendered a decision in favor of the widow. On appeal by D. M.
Consunji, the CA affirmed the decision of the RTC in toto.
ISSUES
1. WON the doctrine of res ipsa loquitur is applicable to prove
petitioners negligence
2. WON respondent is precluded from recovering damages under the
Civil Code
HELD
1. YES
Ratio 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. It 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. 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.
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 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 appellees
deceased husband; thus, the last requisite is also present. A
reasonable presumption or inference of appellants negligence arises.
Regrettably, petitioner does not cite any 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.
2. NO
Ratio Claimants may invoke either the Workmens 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 Workmens
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. The choice of a party between inconsistent
remedies results in a waiver by election. 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.
There is 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.
DISPOSITION 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, whereupon payments already
made to private respondent pursuant to the Labor Code shall be
deducted therefrom. In all other respects, the Decision of the CA is
AFFIRMED.

Page

- Considering that we have assessed Dr. Kho to be a credible witness,

her positive testimony prevails over the negative testimony in favor
of the petitioners. As such, the rule of res ipsa loquitur comes to fore.
- This doctrine is stated thus: "Where the thing which causes injury is
shown to be under the management of the defendant, and the accident
is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care."
- In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were
under the exclusive control of Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence as to the actual culprit or
the exact cause of the foreign object finding its way into private
respondent Villegas' body, which, needless to say, does not occur
unless through the intervention of negligence. Second, since aside
from the cesarean section, private respondent Villegas underwent no
other operation which could have caused the offending piece of
rubber to appear in her uterus, it stands to reason that such could only
have been a by-product of the cesarean section performed by Dr.
Batiquin. The petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the doctrine of res
ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving
behind a piece of rubber in private respondent Villegas' abdomen and
for all the adverse effects thereof
DISPOSITION Decision affirmed

BERNAL V HOUSE
54 PHIL 327 MALCOLM; January 30, 1930
FACTS
- Fortunata Enverso with her daughter Purificacion Bernal went to
Tacloban, Leyte to attend the procession of Holy Friday.
- After the procession, they, accompanied by two other persons,
passed along a public street named Gran Capitan.
- The little girl was allowed to get a short distance in advance of her
mother and her friends.
- While in front of the offices of the Tacloban Electric & Ice Plant,
Ltd., an automobile appeared on which frightened the child. She
turned to run, but fell into the street gutter. At that time there was hot
water in this gutter or ditch coming from the Electric Ice Plant of J.V.
House.
- When the mother and her companions reached the child, they
found her face downward in the hot water.
- The girl was taken to the provincial hospital. Despite his efforts,
the child died that same night.
- It was certified that the cause of death was "Burns, 3rd Degree,
whole Body", and that the contributory causes were "Congestion of
the Brain and visceras of the chest & abdomen.
- The defense was that the hot water was permitted to flow down the
side of the street Gran Captain with the knowledge and consent of the
authorities; that the cause of death was other than the hot water; and
that in the death the plaintiffs contributed by their own fault and
negligence.
- The trial judge, however, after examination of the evidence
presented by the defendants, failed to sustain their theory of the case,
except as to the last mentioned special defense. He nevertheless was
led to order the dismissal of the action because of the contributory
negligence of the plaintiffs.
ISSUE
WON the action should be dismissed due to the contributory
negligence of the plaintiffs
HELD: NO
- The death of the child was the result of fault and negligence in
permitting hot water to flow through the public streets, there to
endanger the lives of passers-by who were unfortunately enough to
fall into it
- The mother and her child had a perfect right to be on the principal
street of Tacloban, Leyte, on the evening when the religious
procession was held.
- There was nothing abnormal in allowing the child to run along a
few paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened child
running and falling into a ditch filled with hot water.
- The doctrines announced in the much debated case of Rakes vs.
Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule. Article
1902 of the Civil Code must again be enforced. The contributory
negligence of the child and her mother, if any, does not operate as
a bar to recovery, but in its strictest sense could only result in
reduction of the damages.
DISPOSITION Judgment appealed from was in part be reversed and
in the court of origin another judgment was issued in favor of

BERNARDO V LEGASPI
29 Phil 12 MORELAND; December 23, 1914
NATURE: Appeal from a judgment of CFI Manila dismissing the
complaint on the merits filed in an action to recover damages for
injuries
FACTS
- Due to a collision between the respective automobiles of Bernardo
and Legaspi, the former filed an action to recover damages for
injuries sustained by his car which he alleged were by reason of
Legaspi's negligence in causing said collision.
Legaspi, on the other hand, filed a cross-complaint alleging it was
Bernardo's fault. He also asks for damages.

- The lower court found upon the evidence that both the plaintiff and
the defendant were negligent in handling their automobiles and that
said negligence was of such a character and extent on the part of both
as to prevent either from recovering.
ISSUE
WON the parties may recover damages
HELD
1. NO
- Where two automobiles, going in opposite directions, collide on
turning a street corner, and it appears from the evidence and is found
by the trial court that the drivers thereof were equally negligent and
contributed equally to the principal occurrence as determining causes
thereof, neither can recover of the other for damages suffered.

Page

- his widow and children filed suit to recover damages from the
company. Trial court rendered judgment in their favor. Court of
Appeals affirmed the decision.
- The electric wire in question was an exposed, uninsulated primary
wire stretched between poles pm the street and carrying a charge of
3600 volts. It was installed there some two years ago before
Pealozas house was constructed. During the construction of said
house a similar incident took place, with less tragic consequences.
The owner of the house complained to defendant about the danger
which the wire presented, and defendant moved one end of the wire
farther from the house by means of a brace, but left the other end
where it was.
- Regulations of the City required that all wires be kept three feet
from the building.
- There was no insulation that could have rendered it safe, because
there is no insulation material in commercial use for such kind of
wire (according to appellant, and this was not refuted).
Petitioners Claim
- Owner of the house exceeded the limit for the construction of the
media agua (17% more).
Respondents Comment
Owner was given final permit despite the excess of the media agua.
ISSUE
WON Manila Electric is guilty of negligence.
HELD
NO. It was the victim who was guilty of negligence
Ratio the liability of electric companies for damages or personal
injury is governed by the rules of negligence, nevertheless such
companies are not insurers of the safety of the public.
Reasoning
- The death of Magno was primarily caused by his own negligence,
and in some measure by the too close proximity of the media agua
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. Had the house owner
followed the terms of the permit given him by the city for the
construction of his
media agua, the distance from the wires to the edge of said media
agua would have been 3ft and 11 3/8 inches.
- 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 to change the installation of its wires so as
to preserve said distance.
- The violation of the permit for the construction was not the direct
cause of the accident. It merely contributed to it. The real cause of the
accident or death was the reckless or negligent act of Magno himself.
It is to be presumed that due to his age and experience he was
qualified to do so. He had training and experience for the job. He
could not have been entirely a stranger to electric wires and the
danger lurking in them.
- 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.
Disposition The appealed decision of the CA is reversed, and
complaint against the Company dismissed.

2.

CONTRIBUTORY NEGLIGENCE

GENOBIAGON V CA (PEOPLE OF THE PHILS)

178 SCRA 422 GRIO-AQUINO; October 22, 1957
NATURE
Petition for review of the CAs decision affirming the conviction of
the petitioner of the crime of homicide thru reckless imprudence.
FACTS
- On Dec 31, 1959, at about 7:30 PM, a rig driven by Genobiagon
bumped an old woman who was crossing the street. The appellant's
rig was following another at a distance of two meters. The old woman
started to cross when the first rig was approaching her, but as
appellant's vehicle was going so fast not only because of the steep
down-grade of the road, but also because he was trying to overtake
the rig ahead of him, the appellant's rig bumped the old woman, who
fell at the middle of the road. The appellant continued to drive on, but
a by-stander Mangyao saw the incident and shouted at the appellant
to stop. He ran after appellant when the latter refused to stop.
Overtaking the appellant, Mangyao asked him why he bumped the
old woman and his answer was, 'it was the old woman that bumped
him.' The appellant went back to the place where the old woman was
struck by his rig. The old woman was unconscious. She was then
loaded in a jeep and brought to the hospital where she died 3 hours
later.
- Genobiagon was convicted of homicide thru reckless imprudence.
CA affirmed
- Genobiagon claims CA erred in not finding that the reckless
negligence of the victim was the proximate cause of the accident
which led to her death
ISSUES
WON contributory negligence can be used as defense by Genobiagon
HELD: NO
- The alleged contributory negligence of the victim, if any, does not
exonerate the accused.
- "The defense of contributory negligence does not apply in criminal
cases committed through reckless imprudence, since one cannot
allege the negligence of another to evade the effects of his own
negligence (People vs. Orbeta, CA-G.R. No. 321, March 29, 1947)."
(People vs. Quiones, 44 O.G. 1520)
Disposition the appealed decision is affirmed with modification as to
the civil liability of the petitioner which is hereby increased to
P30,000. Costs against petitioner.
RAKES V ATLANTIC
GR NO. 1719 (1907)
NATURE: Action for damages
FACTS
- The plaintiff, Rakes, one of a group of 8 African-American laborers
in the employment of defendant, Atlantic, was at work transporting
iron rails from the harbor in Manila. The men were hauling the rails
on 2 hand cars, some behind or at it sides and some pulling the cars in
the front by a rope. At one point, the track sagged, the tie broke, the
car canted and the rails slid off and caught the plaintiff who was
walking by the cars side, breaking his leg, which was later
amputated at the knee.
- The plaintiffs witness alleged that a noticeable depression in the
track had appeared after a typhoon. This was reported to the foreman,
Mckenna, but it had not been proven that Atlantic inspected the track
or had any proper system of inspection. Also, there were no side
guards on the cars to keep the rails from slipping off.

10

PLDT V CA (SPS ESTEBAN)

178 SCRA 94 REGALADO; September 29, 1989
NATURE
Petition for certiorari to review the resolution of the Court of
Appeals.
FACTS
- July 30, 1968 Jeep of Esteban spouses 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.
- 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.
- 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, an independent contractor which
undertook the said construction work.
- TC ruled in favor of Esteban spouses whereas the CA reversed the
ruling.
ISSUE
WON the Esteban spouses can claim damages from PLDT
HELD: NO
Ratio 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.
Reasoning
- The accident was due to the lack of diligence of respondent Antonio
Esteban and was not imputable to negligent omission on the part of
petitioner PLDT.
> 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
> That plaintiffs 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 ACCIDEN
MOUND.
> Plaintiffs 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.
> 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 deligence of a good father of a family to avoid the accident.
- 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.
Disposition resolutions of respondent CA, dated March 11, 1990 and
September 3, 1980, are hereby SET ASIDE, Its original decision,
promulgated on September 25, 1979, is hereby REINSTATED and
AFFIRMED.

CIVIL CODE
Art. 2179. When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be
awarded. (n)
Art. 2214. In quasi-delicts, the contributory negligence of the
plaintiff shall reduce the damages that he may recover.

Page

Fortunata Enverso and against J.V. House for the amount of P1,000,
and for the costs of both instances.
SEPARATE OPINION:ROMUALDEZ [dissent]
- Even taking the finding that the defendant by its negligence helped
to bring about the accident which resulted in the death of the child
Purificacion Bernal, plaintiff, by negligence, contributed to that most
regrettable result.
- Judgment appealed from should be affirmed.

11

PHILIPPINE BANK OF COMMERCE V CA (ROMMELS

MARKETING CORP.)
269 SCRA 695 HERMOSISIMA JR; March 14, 1997
NATURE
Petition for review challenging the CA decision affirming the RTC
decision in a civil case
FACTS
- the case stems from a complaint filed by Rommels Marketing
Corporation (RMC) to recover from the former Philippine Bank of
Commerce (PBC) the sum of P304,979.74 representing various
deposits it had made in its current account with the bank but which
were not credited, and were instead deposited to the account of one
Bienvenido Cotas, allegedly due to the gross and inexcusable
negligence of the petitioner bank.
ISSUE
What is the proximate cause of the loss, to the tune of P304,979.74,
suffered by the private respondent RMC petitioner bank's
negligence or that of private respondent's?
HELD
- The proximate cause of the loss was the negligent act of the bank,
thru its teller Ms. Azucena Mabayad, in validating the deposit slips,
both original and duplicate, presented by Ms. Yabut to Ms. Mabayad,
notwithstanding the fact that one of the deposit slips was not
completely accomplished.
Ratio 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
Reasoning
- There are three elements of a quasi-delict: (a) damages suffered by
the plaintiff; (b) fault or negligence of the defendant, or some other
person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant and
the damages incurred by the plaintiff.
- In the case at bench, there is no dispute as to the damage suffered by
the private respondent. Negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would do.
- Test by which to determine the existence of negligence in a
particular case: Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent

person would have used in the same situation? If not, then he is guilty
of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
- Applying the above test, it appears that the bank's teller, Ms.
Azucena Mabayad, was negligent in validating, officially stamping
and signing all the deposit slips prepared and presented by Ms.
Yabut, despite the glaring fact that the duplicate copy was not
completely accomplished contrary to the self-imposed procedure of
the bank with respect to the proper validation of deposit slips,
original or duplicate, as testified to by Ms. Mabayad herself.
- The fact that the duplicate slip was not compulsorily required by the
bank in accepting deposits should not relieve the petitioner bank of
responsibility. The odd circumstance alone that such duplicate copy
lacked one vital information that of the name of the account holder
should have already put Ms. Mabayad on guard. Rather than
readily validating the incomplete duplicate copy, she should have
proceeded more cautiously by being more probing as to the true
reason why the name of the account holder in the duplicate slip was
left blank while that in the original was filled up. She should not have
been so naive in accepting hook, line and sinker the too shallow
excuse of Ms. Irene Yabut to the effect that since the duplicate copy
was only for her personal record, she would simply fill up the blank
space later on. 11 A "reasonable man of ordinary prudence" 12 would
not have given credence to such explanation and would have insisted
that the space left blank be filled up as a condition for validation.
Unfortunately, this was not how bank teller Mabayad proceeded thus
resulting in huge losses to the private respondent.
- Negligence here lies not only on the part of Ms. Mabayad but also
on the part of the bank itself in its lackadaisical selection and
supervision of Ms. Mabayad. In the testimony of Mr. Romeo
Bonifacio, then Manager of the Pasig Branch of the petitioner, to the
effect that, while he ordered the investigation of the incident, he
never came to know that blank deposit slips were validated in total
disregard of the bank's validation procedures.
- It was in fact only when he testified in this case in February, 1983,
or after the lapse of more than seven (7) years counted from the
period when the funds in question were deposited in plaintiff's
accounts (May, 1975 to July, 1976) that bank manager Bonifacio
admittedly became aware of the practice of his teller Mabayad of
validating blank deposit slips. Undoubtedly, this is gross, wanton, and
inexcusable negligence in the appellant bank's supervision of its
employees.
- It was this negligence of Ms. Azucena Mabayad, coupled by the
negligence of the petitioner bank in the selection and supervision of
its bank teller, which was the proximate cause of the loss suffered by
the private respondent, and not the latter's act of entrusting cash to a
dishonest employee, as insisted by the petitioners.
- Proximate cause is determined on the facts of each case upon mixed
considerations of logic, common sense, policy and precedent. Bank of
the Phil. Islands v. Court of Appeals, 17 defines proximate cause 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. . . ." In this case, absent the
act of Ms. Mabayad in negligently validating the incomplete
duplicate copy of the deposit slip, Ms. Irene Yabut would not have
the facility with which to perpetrate her fraudulent scheme with
impunity.
- LAST CLEAR CHANCE: under the doctrine of "last clear chance"
(also referred to, at times as "supervening negligence" or as
"discovered peril"), petitioner bank was indeed the culpable party.
This doctrine, in essence, states that where both parties are negligent,
but the negligent act of one is appreciably later in time than that of
the other, or when it is impossible to determine whose fault or
negligence should be attributed to the incident, the one who had the

Page

- However, the companys officers and 3 of the workers testified that

there was a general prohibition frequently made known to all against
walking by the side of cars. As Rakes was walking along the cars
side when the accident occurred, he was found to have contributed in
some degree to the injury inflicted, although not as the primary cause.
- Atlantic contends that the remedy for injury through negligence lies
only in a criminal action against the official directly responsible and
that the employer be held only subsidiarily liable.
ISSUE
WON there was contributory negligence on the part of petitioner
HELD: YES
- Petitioner had walked along the side of the car despite a prohibition
to do so by the foreman.
-The negligence of the injured person contributing to his injury but
not being one of the determining causes of the principal accident,
does not operate as a bar to recovery, but only in reduction of his
damages. Each party is chargeable with damages in proportion to his
fault.
- Trial court assessed that damages to plaintiff amount to PhP5,000.
SC deducted PhP2,500, the amount fairly attributable to his own
negligence.
SEPARATE OPINION: WILLARD AND CARSON [dissent]
- the negligence of the defendant alone was insufficient to cause the
accidentit also required the negligence of the plaintiff. Because of
this, plaintiff should not be afforded relief

number matched with the current account name as written in the

deposit slip.
- In the earlier days before the age of full computerization, a bank
normally maintained a ledger which served as a repository of
accounts to which debits and credits resulting from transactions with
the bank were posted from books of original entry. Thus, it was only
after the transaction was posted in the ledger that the teller proceeded
to machine validate the deposit slip and then affix his signature or
initial to serve as proof of the completed transaction.
- It should be noted that the teller validated the depositor's stub in the
upper portion and the bank copy on the lower portion on both the
original and duplicate copies of the deposit slips presented by Yabut.
The teller, however, detached the validated depositor's stub on the
original deposit slip and allowed Yabut to retain the whole validated
duplicate deposit slip that bore the same account number as the
original deposit slip, but with the account name purposely left blank
by Yabut, on the assumption that it would serve no other purpose but
for a personal record to complement the original validated depositor's
stub.
- Thus, when Yabut wrote the name of RMC on the blank account
name on the validated duplicate copy of the deposit slip, tampered
with its account number, and superimposed RMC's account number,
said act only served to cover-up the loss already caused by her to
RMC, or after the deposit slip was validated by the teller in favor of
Yabut's husband. Stated otherwise, when there is a clear evidence of
tampering with any of the material entries in a deposit slip, the
genuineness and due execution of the document become an issue in
resolving whether or not the transaction had been fair and regular and
whether the ordinary course of business had been followed by the
bank.
- The legal or proximate cause of RMC's loss was when Yabut, its
employee, deposited the money of RMC in her husband's name and
account number instead of that of RMC, the rightful owner of such
deposited funds. Precisely, it was the criminal act of Yabut that
directly caused damage to RMC, her employer, not the validation of
the deposit slip by the teller as the deposit slip was made out by
Yabut in her husband's name and to his account.
- LAST CLEAR CHANCE: As for the doctrine of "last clear chance,"
it is my considered view that the doctrine assumes that the negligence
of the defendant was subsequent to the negligence of the plaintiff and
the same must be the proximate cause of the injury. In short, there
must be a last and a clear chance, not a last possible chance, to avoid
the accident or injury. It must have been a chance as would have
enabled a reasonably prudent man in like position to have acted
effectively to avoid the injury and the resulting damage to himself.
- In the case at bar, the bank was not remiss in its duty of sending
monthly bank statements to private respondent RMC so that any error
or discrepancy in the entries therein could be brought to the bank's
attention at the earliest opportunity. Private respondent failed to
examine these bank statements not because it was prevented by some
cause in not doing so, but because it was purposely negligent as it
admitted that it does not normally check bank statements given by
banks.
- It was private respondent who had the last and clear chance to
prevent any further misappropriation by Yabut had it only reviewed
the status of its current accounts on the bank statements sent to it
monthly or regularly. Since a sizable amount of cash was entrusted to
Yabut, private respondent should, at least, have taken ordinary care of
its concerns, as what the law presumes. Its negligence, therefore, is
not contributory but the immediate and proximate cause of its injury.
FORTUITOUS EVENT

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

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

12

3.

Page

last clear opportunity to avoid the impending harm and failed to do so

is chargeable with the consequences thereof. The rule would also
mean that an antecedent negligence of a person does not preclude the
recovery of damages for the supervening negligence of, or bar a
defense against liability sought by another, if the latter, who had the
last fair chance, could have avoided the impending harm by the
exercise of due diligence. Here, assuming that private respondent
RMC was negligent in entrusting cash to a dishonest employee, thus
providing the latter with the opportunity to defraud the company, as
advanced by the petitioner, yet it cannot be denied that the petitioner
bank, thru its teller, had the last clear opportunity to avert the injury
incurred by its client, simply by faithfully observing their selfimposed validation procedure.
- In the case of banks, the degree of diligence required is more than
that of a good father of a family. Considering the fiduciary nature of
their relationship with their depositors, banks are duty bound to treat
the accounts of their clients with the highest degree of care.
- The foregoing notwithstanding, it cannot be denied that, indeed,
private respondent was likewise negligent in not checking its monthly
statements of account. Had it done so, the company would have been
alerted to the series of frauds being committed against RMC by its
secretary. The damage would definitely not have ballooned to such an
amount if only RMC, particularly Romeo Lipana, had exercised even
a little vigilance in their financial affairs. This omission by RMC
amounts to contributory negligence which shall mitigate the damages
that may be awarded to the private respondent 23 under A2179 CC, to
wit:
. . . When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded.
In view of this, we believe that the demands of substantial justice are
satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
damage awarded by the respondent appellate court, except the award
of P25,000.00 attorney's fees, shall be borne by private respondent
RMC; only the balance of 60% needs to be paid by the petitioners.
The award of attorney's fees shall be borne exclusively by the
petitioner.
Disposition the decision of the respondent Court of Appeals is
modified by reducing the amount of actual damages private
respondent is entitled to by 40%. Petitioners may recover from Ms.
Azucena Mabayad the amount they would pay the private respondent.
Private respondent shall have recourse against Ms. Irene Yabut. In all
other respects, the appellate court's decision is AFFIRMED.
SEPARATE OPINION: PADILLA [dissent]
- It seems that an innocent bank teller is being unduly burdened with
what should fall on Ms. Irene Yabut, RMC's own employee, who
should have been charged with estafa or estafa through falsification
of private document. Why is RMC insulating Ms. Irene Yabut from
liability when in fact she orchestrated the entire fraud on RMC, her
employer?
- Going back to Yabut's modus operandi, it is not disputed that each
time Yabut would transact business with PBC's tellers, she would
accomplish two (2) copies of the current account deposit slip. PBC's
deposit slip, as issued in 1975, had two parts. The upper part was
called the depositor's stub and the lower part was called the bank
copy. Both parts were detachable from each other. The deposit slip
was prepared and signed by the depositor or his representative, who
indicated therein the current account number to which the deposit
was to be credited, the name of the depositor or current account
holder, the date of the deposit, and the amount of the deposit either in
cash or in checks.
- Since Yabut deposited money in cash, the usual bank procedure
then was for the teller to count whether the cash deposit tallied with
the amount written down by the depositor in the deposit slip. If it did,
then the teller proceeded to verify whether the current account

4. The obligor (debtor) must be free from any participation in the

aggravation of the injury resulting to the creditor
Reasoning
- In the case at bar, the cause of the unforeseen and unexpected
occurrence was not independent of the human will. The accident was
caused either through the negligence of the driver or because of
mechanical defects in the tire. Common carriers should teach their
drivers not to overload their vehicles not to exceed safe and legal
speed limits and to know the correct measures to take when a tire
blows up thus insuring the safety of passengers at all times.
- Relative to the contingency of mechanical defects, we held in
Necesito, et al. v. Paras, et al, that: The preponderance of authority
is in favor of the doctrine that a passenger is entitled to recover
damages from a carrier for an injury resulting from a defect in an
appliance purchased from a manufacturer, whenever it appears that
the defect would have been discovered by the carrier if it had
exercised the degree of care which under the circumstances was
incumbent upon it. with regard to inspection and application of the
necessary tests. For the purposes of this doctrine, the manufacturer is
considered as being in law the agent or servant of the carrier, as far as
regards the work of constructing the appliance. According to this
theory, the good repute of the manufacturer will not relieve the
carrier from liability.
- It is sufficient to reiterate that the source of a common carrier's legal
liability is the contract of carriage, and by entering into the said
contract, it binds itself to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of a very
cautious person, with a due regard for all the circumstances. The
records show that this obligation was not met by the respondents.
Disposition Decision appealed from is REVERSED and SET ASIDE.
Decision of City Court is REINSTATED

Section 638. Credit for loss occurring in transit or due to casualty Notice to Auditor. When a loss of
government funds or property occurs while the same is in transit or is caused by fire, theft, or other casualty, the
officer accountable therefor or having custody thereof shall immediately notify the Auditor General, or the provincial
auditor, according as a matter is within the original jurisdiction of the one or the other, and within thirty days or such
longer period as the Auditor, or provincial auditor, may in the particular case allow, shall present his application for
relief, with the available evidence in support thereof. An officer who fails to comply with this requirement shall not be
relieved of liability or allowed credit for any such loss in the settlement of his accounts.
1

13

HERNANDEZ V COMMISSION ON AUDIT

179 SCRA 39 CRUZ; November 6, 1989
NATURE: A petition to reverse Commission on Audits denial of
relief
FACTS
- Teodoro M. Hernandez was the officer-in-charge and special
disbursing officer of the Ternate Beach Project of the Philippine
Tourism Authority in Cavite. He went to the main office in Manila to
encash 2 checks covering the wages of the employees and the
operating expenses of the Project. He estimated that the money would
be available by 10am and that he would be back in Ternate by about
2pm of the same day. However, the processing of the checks was
completed only at 3pm. The petitioner decided nevertheless to encash
them because the Project employees would be waiting for their pay
the following day. And so, he collected the cash value of the checks.
The petitioner had two choices: (1) return to Cavite that same
afternoon and arrive there in the early evening; or (2) take the money
with him to his house in Marilao, Bulacan, spend the night there, and
leave for Ternate the following morning. He opted for the second,
thinking it the safer one. He took a passenger jeep bound for his
house in Bulacan. It was while the vehicle was along EDSA that two
persons with knives boarded and forcibly took the money he was
carrying. Hernandez, after the initial shock, immediately followed in
desperate pursuit. He caught up with Virgilio Alvarez and overcame
him after a scuffle. Alvarez was subsequently charged with robbery
and pleaded guilty. But the hold-upper who escaped is still at large
and the stolen money he took with him has not been recovered.
- the petitioner, invoking the foregoing facts, filed a request for relief
from money accountability under Section 638 of the Revised
Administrative Code.1

Page

JUNTILLA V FONTANAR
136 SCRA 624 GUITERREZ JR; May 31, 1985
NATURE: Petition to review the decision of CFI of Cebu
FACTS
- Petitioner Roberto Juntilla was sitting a the front seat of a jeepney
(driven by one Berfol Camoro, registered under the franchise of
Clemente Fontanar, but actually owned by Fernando Banzon) when
its right rear tire exploded causing it to turn turtle. Plaintiff was
thrown out of the vehicle and lost consciousness upon landing on the
ground. When he came back to his senses, he found that he had a
lacerated wound on his right palm, injuries on his left arm, right thigh
and on his back and also found this Omega wrist watch was lost.
He went to Danao city and upon arrival there he entered the City
Hospital to attend to his injuries and asked his father-in-law to go to
site of the accident to look for his watch but the watch was nowhere
to be found.
- Petitioner then filed a civil case for breach of contract with damages
before the City Court of Cebu against Fontanar, Banzon, and
Camoro, who filed their answer, alleging that the accident was
beyond their control taking into account that the tire that exploded
was newly bought and slightly used at the time it blew up.
- City Court rendered judgment in favor of petitioner. The
respondents then appealed to the CFI of Cebu, which reversed the
judgment upon a finding that the accident in question was due to a
fortuitous event. Petitioners MFR was denied, hence this appeal.
ISSUES
1. WON the CFI erred in absolving the carrier from any liability upon
a finding that the tire blow out is a fortuitous event
2. WON the accident was due to a fortuitous event
HELD
1. YES
- The CFI relied on the ruling of the CA in Rodriguez v Red Line
Transportation Co., that a tire blow-out does not constitute
negligence unless the tire was already old and should not have been
used at all. This conclusion is based on a misapprehension of overall
facts. In La Mallorca and Pampanga Bus Co. v De Jesus, et al, We
held that, not only are the rulings of the CA in Rodriguez v Red
Line Trans. Co. not binding on this Court but they were also based on
considerations quite different from those that obtain in the case at
bar. In the case at bar, there are specific acts of negligence on the
part of the respondents. The records show that the passenger jeepney
turned turtle and jumped into a ditch immediately after its right rear
tire exploded. The evidence shows that the passenger jeepney was
running at a very fast speed before the accident. We agree with the
observation of the petitioner that a public utility jeep running at a
regular and safe speed will not jump into a ditch when its right rear
tire blows up. There is also evidence to show that the passenger
jeepney was overloaded at the time of the accident. The petitioner
stated that there were 3 passengers in the front seat and 14 in the rear.
- While it may be true that the tire that blew-up was still good
because the grooves of the tire were still visible, this fact alone does
not make the explosion of the tire a fortuitous event. No evidence was
presented to show that the accident was due to adverse road
conditions or that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents. The sudden
blowing-up, therefore, could have been caused by too much air
pressure injected into the tire coupled by the fact that the jeepney was
overloaded and speeding at the time of the accident.
2. NO
Ratio A caso fortuito (fortuitous event) presents the following
essential characteristics:
1. The cause of the unforeseen and unexpected occurrence, or of the
failure of the debtor to comply with his obligation, must be
independent of the human will
2. It must be impossible to foresee the even which constitutes the
caso fortuito, or if it can be foreseen, it must be impossible to avoid
3. The occurrence must be such as to render it impossible for the
debtor to fulfill his obligation in a normal manner

14

GOTESCO INVESTMENT CORPORATION V CHATTO

210 SCRA 18 DAVIDE JR; June 16, 1992
NATURE: Petition for Review
FACTS
- In the afternoon of June 4, 1982 Gloria E. Chatto, and her 15-year
old daughter, Lina Delza E. Chatto went to see the movie "Mother
Dear" at Superama I theater, owned by defendant Gotesco Investment
Corporation. They bought balcony tickets but even then were unable
to find seats considering the number of people patronizing the movie.

Hardly ten (10) minutes after entering the theater, the ceiling of its
balcony collapsed. The theater was plunged into darkness and
pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl
under the fallen ceiling. As soon as they were able to get out to the
street they walked the nearby FEU Hospital where they were
confined and treated for one (1) day.
- The next day, they transferred to the UST hospital. Plaintiff Gloria
Chatto was treated in said hospital from June 5 to June 19 and
plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal
Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, plaintiff Lina
Delza Chatto suffered the following injuries:
- Defendant tried to avoid liability by alleging that the collapse of the
ceiling of its theater was done due to force majeure. It maintained
that its theater did not suffer from any structural or construction
defect.
ISSUES
1. WON Jesus Lim Ongs investigation maybe given weight in the
trial
2. WON the collapse was due to force majeure
HELD
1. NO
- there was no authoritative investigation conducted by impartial civil
and structural engineers on the cause of the collapse of the theater's
ceiling, Jesus Lim Ong is not an engineer, He is a graduate of
architecture from the St. Louie University in Baguio City. It does not
appear he has passed the government examination for architects. In
fine, the ignorance of Mr. Ong about the cause of the collapse of the
ceiling of their theater cannot be equated, as an act, of God. To
sustain that proposition is to introduce sacrilege in our jurisprudence.
2. NO
- Petitioner's claim that the collapse of the ceiling of the theater's
balcony was due to force majeure is not even founded on facts
because its own witness, Mr. Jesus Lim Ong, admitted that "he could
not give any reason why the ceiling collapsed." Having interposed it
as a defense, it had the burden to prove that the collapse was indeed
caused by force majeure. It could not have collapsed without a cause.
That Mr. Ong could not offer any explanation does not imply force
majeure. Petitioner could have easily discovered the cause of the
collapse if indeed it were due to force majeure. To Our mind, the real
reason why Mr. Ong could not explain the cause or reason is that
either he did not actually conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is not an engineer,
but an architect who had not even passed the government's
examination. Verily, post-incident investigation cannot be considered
as material to the present proceedings. What is significant is the
finding of the trial court, affirmed by the respondent Court, that the
collapse was due to construction defects. There was no evidence
offered to overturn this finding. The building was constructed barely
four (4) years prior to the accident in question. It was not shown that
any of the causes denominates as force majeure obtained immediately
before or at the time of the collapse of the ceiling. Such defects could
have been easily discovered if only petitioner exercised due diligence
and care in keeping and maintaining the premises. But as disclosed
by the testimony of Mr. Ong, there was no adequate inspection of the
premises before the date of the accident. His answers to the leading
questions on inspection disclosed neither the exact dates of said.
inspection nor the nature and extent of the same. That the structural
designs and plans of the building were duly approved by the City
Engineer and the building permits and certificate of occupancy were
issued do not at all prove that there were no defects in the
construction, especially as regards the ceiling, considering that no
testimony was offered to prove that it was ever inspected at all.
- It is settled that - The owner or proprietor of a place of public
amusement impliedly warrants that the premises, appliances and
amusement devices are safe for the purpose for which they are
designed, the doctrine being subject to no other exception or
qualification than that he does not contract against unknown defects
not discoverable by ordinary or reasonable means.

Page

- however, the Commission on Audit, through then Chairman

Francisco S. Tantuico, jr. denied the petitioner's request, observing
inter alia:
In the instant case, the loss of the P10,175.00 under the
accountability of Mr. Hernandez can be attributed to his negligence
because had he brought the cash proceeds of the checks
(replenishment fund) to the Beach Park in Ternate immediately after
encashment for safekeeping in his office, which is the normal
procedure in the handling of public funds, the loss of said cash thru
robbery could have been aborted.
- In the petition at bar, Hernandez claims that the respondent COA
acted with grave abuse of discretion in denying him relief and in
holding him negligent for the loss of the stolen money. He avers he
has done only what any reasonable man would have done and should
not be held accountable for a fortuitous event over which he had
no control.
- On his decision to take the money home that afternoon instead of
returning directly to Ternate, he says that the first course was more
prudent as he saw it, if only because his home in Marilao was much
nearer than his office in Ternate; that the likelihood of robbery during
the time in question was stronger in Ternate than in Marilao; that
what happened was a fortuitous event that could not have reasonably
been foreseen, especially on that busy highway.
- then Solicitor-General argued that Hernandez was negligent in the
safekeeping of the stolen funds. Later, however, his successor sided
with the petitioner, agreeing that Hernandez had not committed any
negligence or, assuming he was guilty of contributory negligence,
had made up for it with his efforts to retrieve the money and his
capture of one of the robbers, who was eventually convicted.
- COA insists that the petitioner should not be relieved from his
money accountability because it was his own negligence that led to
the loss of the cash he had sought to take not to Ternate but to
Marilao. Its contention is that the petitioner should not have encashed
the checks as the hour was already late and he knew he could not
return to Ternate before nightfall. The memo concludes that in
deciding to take the money with him to Marilao after imprudently
withdrawing it from the main office, the petitioner was assuming a
risk from which he cannot now be excused after the loss of the money
as a result of the robbery to which it was unreasonably exposed.
ISSUE
WON petitioners acts are so tainted with negligence or recklessness
as to justify the denial of the petitioner's request for relief from
accountability for the stolen money
HELD
NO
- This was undoubtedly a fortuitous event covered by the said
provisions, something that could not have been reasonably foreseen
although it could have happened, and did. For most of us, all we can
rely on is a reasoned conjecture of what might happen, based on
common sense and our own experiences, or our intuition, if you will,
and without any mystic ability to peer into the future. So it was with
the petitioner.
- It is true that the petitioner miscalculated, but the Court feels he
should not be blamed for that. The decision he made seemed logical
at that time and was one that could be expected of a reasonable and
prudent person.
Disposition
The petitioner is entitled to be relieved from
accountability for the money forcibly taken from him.
ACCORDINGLY, the petition is GRANTED.

NATIONAL POWER CORP V CA (RAYO ET AL)

GR NO. 103442-45 DAVIDE JR; May 21, 1993
NATURE: Petition for review on certiorari under Rule 45 of the Revised
Rules of Court
FACTS
- When the water level in the Angat dam went beyond the allowable limit
at the height of typhoon Kading NPC opened three of the dams spillways
to release the excess water in the dam. This however caused the
inundation of the banks of the Angat river which caused persons and
animals to drown and properties to be washed away.
- The flooding was purportedly caused by the negligent release by the
defendants of water through the spillways of the Angst Dam
(Hydroelectric Plant).
Plaintiffs claim:
- NPC operated and maintained a multi-purpose hydroelectric plant in the
Angat River
- despite the defendants' knowledge of the impending entry of typhoon
"Kading," they failed to exercise due diligence in monitoring the water
level at the dam

15

SERVANDO V PHILIPPINE STEAM NAVIGATION CO

117 SCRA 832 ESCOLIN; 1982
NATURE
This appeal, originally brought to the Court of Appeals, seeks to set aside
the decision of the Court of First Instance of Negros Occidental in Civil
Cases Nos. 7354 and 7428, declaring appellant Philippine Steam
Navigation liable for damages for the loss of the appellees' cargoes as a
result of a fire which gutted the Bureau of Customs' warehouse in
Pulupandan, Negros Occidental.
FACTS
- On November 6, 1963, appellees Clara Uy Bico and Amparo Servando
loaded on board the appellant's vessel for carriage from Manila to
Pulupandan, Negros Occidental several cargoes (cavans of rice, colored
papers, toys etc) as evidenced by the corresponding bills of lading issued
by the appellant. Upon arrival of the vessel at Pulupandan, in the morning
of November 18, 1963, the cargoes were discharged, complete and in
good order, unto the warehouse of the Bureau of Customs. At about 2:00
in the afternoon of the same day, said warehouse was razed by a fire of
unknown origin, destroying appellees' cargoes. Before the fire, however,
appellee Uy Bico was able to take delivery of 907 cavans of rice
Appellees' claims for the value of said goods were rejected by the
appellant.
- On the bases of the foregoing facts, the lower court rendered a decision,
ordering Philippine Steam to pay for damages. The court a quo held that
the delivery of the shipment in question to the warehouse of the Bureau
of Customs is not the delivery contemplated by Article 1736; and since
the burning of the warehouse occurred before actual or constructive
delivery of the goods to the appellees, the loss is chargeable against the
appellant.
Philippine Steam on the other hand relies on the following:
Clause 14. Carrier shall not be responsible for loss or damage to
shipments billed 'owner's risk' unless such loss or damage is due to
negligence of carrier. Nor shall carrier be responsible for loss or
damage caused by force majeure, dangers or accidents of the sea or
other waters; war; public enemies; . . . fire . ...
ISSUE
WON the above stipulation validly limits the liability of the shipowner in
this case
HELD
YES
Ratio The parties may stipulate anything in the contract for so long as the
stipulation is not contrary to law, morals, public policy. The stipulation
which merely iterates the principle of caso fortuito is for all intents and
purposes valid.
Reasoning
- We sustain the validity of the above stipulation; there is nothing therein
that is contrary to law, morals or public policy.
- Appellees would contend that the above stipulation does not bind them
because it was printed in fine letters on the back-of the bills of lading; and
that they did not sign the same. This argument overlooks the
pronouncement of this Court in Ong Yiu vs. Court of Appeals,
promulgated June 29, 1979, 3 where the Court held that while it may be
true that petitioner had not signed the plane ticket , he is nevertheless
bound by the provisions thereof. 'Such provisions have been held to be a
part of the contract of carriage, and valid and binding upon the passenger
regardless of the latter's lack of knowledge or assent to the regulation'. It
is what is known as a contract of 'adhesion', in regards which it has been
said that contracts of adhesion wherein one party imposes a ready made
form of contract on the other, as the plane ticket in the case at bar, are
contracts not entirely prohibited. The one who adheres to the contract is
in reality free to reject it entirely; if he adheres, he gives his consent."
(Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing Mr. Justice
J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49).

- Besides, the agreement contained in the above quoted Clause 14 is a

mere iteration of the basic principle of law written in Article 1 1 7 4 of
the Civil Code. Thus, where fortuitous event or force majeure is the
immediate and proximate cause of the loss, the obligor is exempt from
liability for non-performance. The Partidas, the antecedent of Article
1174 of the Civil Code, defines 'caso fortuito' as 'an event that takes place
by accident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers.'
- In its dissertation of the phrase 'caso fortuito' the Enciclopedia
Juridicada Espanola 5 says: "In a legal sense and, consequently, also in
relation to contracts, a 'caso fortuito' presents the following essential
characteristics: (1) the cause of the unforeseen and unexpected
occurrence, or of the failure of the debtor to comply with his obligation,
must be independent of the human will; (2) it must be impossible to
foresee the event which constitutes the 'caso fortuito', or if it can be
foreseen, it must be impossible to avoid; (3) the occurrence must be such
as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and (4) the obligor must be free from any participation in
the aggravation of the injury resulting to the creditor." In the case at bar,
the burning of the customs warehouse was an extraordinary event which
happened independently of the will of the appellant. The latter could not
have foreseen the event.
- There is nothing in the record to show that appellant carrier ,incurred in
delay in the performance of its obligation. It appears that appellant had
not only notified appellees of the arrival of their shipment, but had
demanded that the same be withdrawn. In fact, pursuant to such demand,
appellee Uy Bico had taken delivery of 907 cavans of rice before the
burning of the warehouse.
Nor can the appellant or its employees be charged with negligence. The
storage of the goods in the Customs warehouse pending withdrawal
thereof by the appellees was undoubtedly made with their knowledge and
consent. Since the warehouse belonged to and was maintained by the
government, it would be unfair to impute negligence to the appellant, the
latter having no control whatsoever over the same.
Disposition judgment appealed from is hereby set aside.
SEPARATE OPINION: AQUINO [concur]
- I concur. Under article 1738 of the Civil Code "the extraordinary
liability of the common carrier continues to be operative even during the
time the goods are stored in the warehouse of the carrier at the place of
destination, until the consignee has been advised of the arrival of the
goods and has had reasonable opportunity thereafter to remove them or
otherwise dispose of them".
- From the time the goods in question were deposited in the Bureau of
Customs' warehouse in the morning of their arrival up to two o' clock in
the afternoon of the same day, when the warehouse was burned, Amparo
C. Servando and Clara Uy Bico, the consignees, had reasonable
opportunity to remove the goods. Clara had removed more than one-half
of the rice consigned to her. Moreover, the shipping company had no
more control and responsibility over the goods after they were deposited
in the customs warehouse by the arrastre and stevedoring operator. No
amount of extraordinary diligence on the part of the carrier could have
prevented the loss of the goods by fire which was of accidental origin.

Page

- This implied warranty has given rise to the rule that - Where a
patron of a theater or other place of public amusement is injured, and
the thing that caused the injury is wholly and exclusively under the
control and management of the defendant, and the accident is such as
in the ordinary course of events would not have happened if proper
care had been exercised, its occurrence raises a presumption or
permits of an inference of negligence on the part of the defendant.
Disposition judgment is hereby rendered DENYING the instant
petition with costs against petitioner.

ISSUES
WON the damage on the roof of the building of private respondents
resulting from the impact of the falling portions of the school buildings
roof ripped off by the strong winds of typhoon Saling, was, within legal
contemplation, due to fortuitous event
HELD
YES
- Petitioner cannot be held liable for the damages suffered by the private
respondents. This conclusion finds support in Article 1174 of the Civil
Code, which provides:
Art 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which, though foreseen,
were inevitable.
- The antecedent of fortuitous event or caso fortuito is found in the
Partidas which defines it as an event which takes place by accident and
could not have been foreseen. Escriche elaborates it as an unexpected

16

SOUTHEASTERN COLLEGE V CA
292 SCRA 422 PURISIMA; July 10, 1998
NATURE

Petition for review seeking to set aside the Decision promulgated on July
31, 1996, and Resolution dated September 12, 1996 of the Court of
Appeals in Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern
College, Inc., which reduced the moral damages awarded below from
P1,000,000.00 to P200,000.00. The Resolution under attack denied
petitioners motion for reconsideration.
FACTS
- Private respondents are owners of a house at 326 College Road, Pasay
City, while petitioner owns a four-storey school building along the same
College Road. On October 11, 1989, at about 6:30 in the morning, a
powerful typhoon Saling hit Metro Manila. Buffeted by very strong
winds, the roof of petitioners building was partly ripped off and blown
away, landing on and destroying portions of the roofing of private
respondents house. After the typhoon had passed, an ocular inspection
of the destroyed buildings was conducted by a team of engineers headed
by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of
the latters Report dated October 18, 1989 stated, as follows:
5. One of the factors that may have led to this calamitous event is the
formation of the buildings in the area and the general direction of the
wind. Situated in the peripheral lot is an almost U-shaped formation
of 4-storey building. Thus, with the strong winds having a westerly
direction, the general formation of the buildings becomes a big funnellike structure, the one situated along College Road, receiving the
heaviest impact of the strong winds. Hence, there are portions of the
roofing, those located on both ends of the building, which remained
intact after the storm.
6. Another factor and perhaps the most likely reason for the
dislodging of the roofings structural trusses is the improper anchorage
of the said trusses to the roof beams. The 1/2 diameter steel bars
embedded on the concrete roof beams which serve as truss anchorage
are not bolted nor nailed to the trusses. Still, there are other steel bars
which were not even bent to the trusses, thus, those trusses are not
anchored at all to the roof beams.
- It then recommended that to avoid any further loss and damage to
lives, limbs and property of persons living in the vicinity, the fourth
floor of subject school building be declared as a structural hazard.
- In their Complainti[6] before the Regional Trial Court of Pasay City,
Branch 117, for damages based on culpa aquiliana, private respondents
alleged that the damage to their house rendered the same uninhabitable,
forcing them to stay temporarily in others houses. And so they sought to
recover from petitioner P117,116.00, as actual damages, P1,000,000.00,
as moral damages, P300,000.00, as exemplary damages and P100,000.00,
for and as attorneys fees; plus costs.
- In its Answer, petitioner averred that subject school building had
withstood several devastating typhoons and other calamities in the past,
without its roofing or any portion thereof giving way; that it has not been
remiss in its responsibility to see to it that said school building, which
houses school children, faculty members, and employees, is in tip-top
condition; and furthermore, typhoon Saling was an act of God and
therefore beyond human control such that petitioner cannot be
answerable for the damages wrought thereby, absent any negligence on
its part.
- The Trial Court and the Court of Appeals gave credence to the ocular
inspection made by the city engineer. Thus, this appeal.

Page

- when the said water level went beyond the maximum allowable limit at
the height of the typhoon, the defendants suddenly, negligently and
recklessly opened three (3) of the dam's spillways, thereby releasing a
large amount of water which inundated the banks of the Angat River
causing the death of members of the household of the plaintiffs, together
with their animals
Respondents comments:
- NPC exercised due care, diligence and prudence in the operation and
maintenance of the hydroelectric plant
- NPC exercised the diligence of a good father in the selection of its
employees
- written notices were sent to the different municipalities of Bulacan
warning the residents therein about the impending release of a large
volume of water with the onset of typhoon "Kading" and advising them to
take the necessary Precautions
- the water released during the typhoon was needed to prevent the
collapse of the dam and avoid greater damage to people and property
- in spite of the precautions undertaken and the diligence exercised, they
could still not contain or control the flood that resulted
- the damages incurred by the private respondents were caused by a
fortuitous event or force majeure and are in the nature and character of
damnum absque injuria.
ISSUES
1. WON NPC was guilty of negligence
2. WON (applying the ruling of NAkpil & Sons v. CA) NPC is liable
given that the inundation was caused by force majeure
HELD
1. YES
- A similar case entitled National Power Corporation, et al. vs, Court of
Appeals, et al.," involving the very same incident subject of the instant
petition. The court there declared that the proximate cause of the loss and
damage sustained by the plaintiffs therein--who were similarly situated as
the private respondents herein-was the negligence of the petitioners,
- on the basis of its meticulous analysis and evaluation of the evidence a
dduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93,
public respondent found as conclusively established that indeed, the
petitioners were guilty of "patent gross and evident lack of foresight,
imprudence and negligence in the management and operation of Angat
Dam," and that "the extent of the opening of the spillways, and the
magnitude of the water released, are all but products of defendantsappellees headlessness, slovenliness, and carelessness."and that the 24
October 1978 'early warning notice" supposedly sent to the affected
municipalities, the same notice involved in the case at bar, was
insufficient.
2. YES
- given that NPC is guilty of negligence. Juan F. Nakipil & Sons vs.
Court of Appeals is still good law as far as the concurrent liability of an
obligor in the case of force majeure is concerned.
- In the Nakpil case it was held that "To exempt the obligor from liability
under Article 1174 of the Civil Code, for a breach of an obligation due to
an 'act of God,' the following must concur: (a) the cause of the breach of
the obligation must be independent of the will of the debtor, (b) the event
must be either unforeseeable or unavoidable; (c) the event must be such
as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and (d) the debtor must be free from any participation in,
or aggravation of the injury to the creditor. Thus, if upon the happening
of a fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any manner of
the tenor of the obligation as provided for in Article 1170 of the Civil
Code, which results in loss or damage, the obligor cannot escape liability.
- The principle embodied in the act of God doctrine strictly requires that
the act must be one occasioned exclusively by the violence of nature and
all human agencies are, to be excluded from creating or entering into the
cause of the mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the participation of man
whether it be from active intervention or neglect, or failure to act, the
whole occurrence is thereby humanized, as it were, and removed from the
rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Disposition Petition dismissed.

17

was the proximate cause of the damage suffered by private respondents

house.

Page

event or act of God which could neither be foreseen nor resisted. Civilist
Arturo M. Tolentino adds that [f]ortuitous events may be produced by
two general causes: (1) by nature, such as earthquakes, storms, floods,
epidemics, fires, etc. and (2) by the act of man, such as an armed
invasion, attack by bandits, governmental prohibitions, robbery, etc.
- In order that a fortuitous event may exempt a person from liability, it is
necessary that he be free from any previous negligence or misconduct by
reason of which the loss may have been occasioned.. An act of God
cannot be invoked for the protection of a person who has been guilty of
gross negligence in not trying to forestall its possible adverse
consequences. When a persons negligence concurs with an act of God in
producing damage or injury to another, such person is not exempt from
liability by showing that the immediate or proximate cause
of the
damage or injury was a fortuitous event. When the effect is found to be
partly the result of the participation of man whether it be from active
intervention, or neglect, or failure to act the whole occurrence is hereby
humanized, and removed from the rules applicable to acts of God.
- After a thorough study and evaluation of the evidence on record, this
Court believes otherwise, notwithstanding the general rule that factual
findings by the trial court, especially when affirmed by the appellate
court, are binding and conclusive upon this Court. After a careful scrutiny
of the records and the pleadings submitted by the parties, we find
exception to this rule and hold that the lower courts misappreciated the
evidence proffered.
- There is no question that a typhoon or storm is a fortuitous event, a
natural occurrence which may be foreseen but is unavoidable despite any
amount of foresight, diligence or care. In order to be exempt from
liability arising from any adverse consequence engendered thereby, there
should have been no human participation amounting to a negligent act. In
other words, the person seeking exoneration from liability must not be
guilty of negligence. Negligence, as commonly understood, is conduct
which naturally or reasonably creates undue risk or harm to others. It
may be the failure to observe that degree of care, precaution, and
vigilance which the circumstances justly demand, or the omission to do
something which a prudent and reasonable man, guided by considerations
which ordinarily regulate the conduct of human affairs, would do. From
these premises, we proceed to determine whether petitioner was
negligent, such that if it were not, the damage caused to private
respondents house could have been avoided?
- At the outset, it bears emphasizing that a person claiming damages for
the negligence of another has the burden of proving the existence of fault
or negligence causative of his injury or loss. The facts constitutive of
negligence must be affirmatively established by competent evidence, not
merely by presumptions and conclusions without basis in fact. Private
respondents, in establishing the culpability of petitioner, merely relied on
the aforementioned report submitted by a team which made an ocular
inspection of petitioners school building after the typhoon. As the term
imparts, an ocular inspection is one by means of actual sight or viewing.
What is visual to the eye though, is not always reflective of the real cause
behind. For instance, one who hears a gunshot and then sees a wounded
person, cannot always definitely conclude that a third person shot the
victim. It could have been self-inflicted or caused accidentally by a stray
bullet. The relationship of cause and effect must be clearly shown.
- In the present case, other than the said ocular inspection, no
investigation was conducted to determine the real cause of the partial
unroofing of petitioners school building. Private respondents did not
even show that the plans, specifications and design of said school
building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor
did they conclusively establish that the construction of such building was
basically flawed.
- Moreover, the city building official, who has been in the city
government service since 1974, admitted in open court that no complaint
regarding any defect on the same structure has ever been lodged before
his office prior to the institution of the case at bench. It is a matter of
judicial notice that typhoons are common occurrences in this country. If
subject school buildings roofing was not firmly anchored to its trusses,
obviously, it could not have withstood long years and several typhoons
even stronger than Saling.
- In light of the foregoing, we find no clear and convincing evidence to
sustain the judgment of the appellate court. We thus hold that petitioner
has not been shown negligent or at fault regarding the construction and
maintenance of its school building in question and that typhoon Saling