Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First
Instance of Pangasinan and FIDEL H. SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.

ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in
Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of
the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory
negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the
defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the
death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral
damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total
of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this
suit. It Is So Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan,
which started from 2:00 o'clock in the afternoon and lasted up to about midnight of
the same day. During the storm, the banana plants standing on an elevated ground
along the barrio road in San Pedro Ili of said municipality and near the transmission
line of the Alcala Electric Plant were blown down and fell on the electric wire. As a

result, the live electric wire was cut, one end of which was left hanging on the electric
post and the other fell to the ground under the fallen banana plants.
On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San
Pedro Iii who was passing by saw the broken electric wire and so he warned the
people in the place not to go near the wire for they might get hurt. He also saw
Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified
him right then and there of the broken line and asked him to fix it, but the latter told
the barrio captain that he could not do it but that he was going to look for the lineman
to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left the place, a small
boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is
just on the opposite side of the road, went to the place where the broken line wire
was and got in contact with it. The boy was electrocuted and he subsequently died. It
was only after the electrocution of Manuel Saynes that the broken wire was fixed at
about 10:00 o'clock on the same morning by the lineman of the electric plant.
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to have the line repaired and the presence of
negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by electrocution.
First, by the very evidence of the defendant, there were big and tall banana plants at the place of the
incident standing on an elevated ground which were about 30 feet high and which were higher than
the electric post supporting the electric line, and yet the employees of the defendant who, with
ordinary foresight, could have easily seen that even in case of moderate winds the electric line would
be endangered by banana plants being blown down, did not even take the necessary precaution to
eliminate that source of danger to the electric line. Second, even after the employees of the Alcala
Electric Plant were already aware of the possible damage the storm of May 14, 1972, could have
caused their electric lines, thus becoming a possible threat to life and property, they did not cut off
from the plant the flow of electricity along the lines, an act they could have easily done pending
inspection of the wires to see if they had been cut. Third, employee Cipriano Baldomero was
negligent on the morning of the incident because even if he was already made aware of the live cut
wire, he did not have the foresight to realize that the same posed a danger to life and property, and
that he should have taken the necessary precaution to prevent anybody from approaching the live
wire; instead Baldomero left the premises because what was foremost in his mind was the repair of
the line, obviously forgetting that if left unattended to it could endanger life and property.
On defendants' argument that the proximate cause of the victim's death could be attributed to the
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees

resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to leave
the house alone on the morning of the incident and go to a nearby place cut wire was very near the
house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but we cannot agree with petitioner's theory that the parents' negligence
constituted the proximate cause of the victim's death because the real proximate cause was the
fallen live wire which posed a threat to life and property on that morning due to the series of
negligence adverted to above committed by defendants' employees and which could have killed any
other person who might by accident get into contact with it. Stated otherwise, even if the child was
allowed to leave the house unattended due to the parents' negligence, he would not have died that
morning where it not for the cut live wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this
case) was only contributory, the immediate and proximate cause of the injury being the defendants'
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded. This law may be availed of by the petitioner but does not exempt him from liability.
Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article
2180 of the Civil Code, which states:
The owner and manager of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the branches in which the
latter are employed or on tile occasion of their functions.
The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in
this case, either in its appreciation of the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable
conclusion is that no error amounting to grave abuse of discretion was committed and the decision
must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.

Teehankee (Chairman), Makasiar, Muoz Palma and Martin, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to
give warning of his approach. He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then standing; but in so doing the

automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left
hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye
of the law.
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 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.
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion

for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were
not contemporaneous, since the negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances the law is that the person who has
the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment
of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen
the defendant's negligence in that case consisted in an omission only. The liability of the company
arose from its responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in
order to apportion the damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and determining cause of the
accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-39587

March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila Railroad Company, and the other
by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of
Manila, the dispositive part of which reads as follows:
Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for
the purposes above stated, the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a joint action, it must be

understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of
P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the
plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital,
Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors
committed by the trial court in its said judgment, which will be discussed in the course of this
decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein
alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity
for material and moral damages suffered by them through the fault and negligence of the said
defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the
filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies each and every
allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be
absolved from the complaint.
The following facts have been proven at the trial, some without question and the others by a
preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author
and photographer. At the time of the collision in question, he was a staff correspondent in the Far
East of the magazines The American Weekly of New York and The Sphere of London.
Some of his works have been translated into various languages. He had others in preparation when
the accident occurred. According to him, his writings netted him a monthly income of P1,500. He
utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into
English, German, and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his
4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said
plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing
trip. It was the first time that he made said trip although he had already been to many places, driving
his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff
drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as
Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no knowledge of the existence of a railroad crossing at
Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and
inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an
approaching train. At about seven or eight meters from the crossing, coming from Calauan, the

plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have
alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles
an hour and sounded his horn for the people to get out of the way. With his attention thus occupied,
he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge
black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant
company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car
right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it
upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown
from the car and were picked up from the ground unconscious and seriously hurt. In spite of the
efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about
seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila
where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose,
a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple
contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff
was highly nervous and very easily irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write articles nor short stories for the
newspapers and magazines to which he was a contributor, thus losing for some time his only means
of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the
right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two
surgical operations on the left leg for the purpose of joining the fractured bones but said operations
notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the
deformity is permanent in character and as a result the plaintiff will have some difficulty in walking.
The lacerated wound, which she received on her forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on
the left side of the face, in addition to fractures of both legs, above and below the knees. Her
condition was serious and, for several days, she was hovering between life and death. Due to a
timely and successful surgical operation, she survived her wounds. The lacerations received by the
child have left deep scars which will permanently disfigure her face, and because of the fractures of
both legs, although now completely cured, she will be forced to walk with some difficulty and
continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was
there anybody to warn the public of approaching trains. The flagman or switchman arrived after the
collision, coming from the station with a red flag in one hand and a green one in the other, both of
which were wound on their respective sticks. The said flagman and switchman had many times
absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a
little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary evidence which the parties presented at
the trial in support of their respective contentions, and after taking into consideration all the
circumstances of the case, this court is of the opinion that the accident was due to negligence on the

part of the defendant-appellant company, for not having had on that occasion any semaphore at the
crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take
the necessary precautions before crossing the railroad; and, on the part of its employees the
flagman and switchman, for not having remained at his post at the crossing in question to warn
passers-by of the approaching train; the stationmaster, for failure to send the said flagman and
switchman to his post on time; and the engineer, for not having taken the necessary precautions to
avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed
and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it
is probable that the defendant-appellant entity employed the diligence of a good father of a family in
selecting its aforesaid employees, however, it did not employ such diligence in supervising their work
and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the
crossing and, on previous occasions as well as on the night in question, the flagman and switchman
would have always been at his post at the crossing upon the arrival of a train. The diligence of a
good father of a family, which the law requires in order to avoid damage, is not confined to the
careful and prudent selection of subordinates or employees but includes inspection of their work and
supervision of the discharge of their duties.
However, in order that a victim of an accident may recover indemnity for damages from the person
liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary
that the said victim has not, through his own negligence, contributed to the accident, inasmuch as
nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after
them, employing the care and diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in order to avoid any damage. It appears
that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence
of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a
happy ending, driving his car at a speed which prudence demanded according to the circumstances
and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn
upon seeing persons on the road, in order to warn them of his approach and request them to get out
of the way, as he did when he came upon the truck parked on the left hand side of the road seven or
eight meters from the place where the accident occurred, and upon the persons who appeared to
have alighted from the said truck. If he failed to stop, look and listen before going over the crossing,
in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it
was because, his attention having been occupied in attempting to go ahead, he did not see the
crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it
beforehand. The first and only warning, which he received of the impending danger, was two short
blows from the whistle of the locomotive immediately preceding the collision and when the accident
had already become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant the Manila
Railroad Company alone is liable for the accident by reason of its own negligence and that of its
employees, for not having employed the diligence of a good father of a family in the supervision of
the said employees in the discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a quo as indemnities
for damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net
income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated
to him by the trial court as indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages,
the different items thereof representing doctor's fees, hospital and nursing services, loss of personal
effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive,
taking into consideration the circumstances in which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E.
Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big
scar, which she has on her forehead caused by the lacerated wound received by her from the
accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity
which renders it very difficult for her to walk", and taking into further consideration her social
standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity
for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez(56 Phil., 177),
the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the
autobus in which he was riding and the defendant's car, which fractured required medical attendance
for a considerable period of time. On the day of the trial the fracture had not yet completely healed
but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify
him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said
plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did
he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.
1vvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius
and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the
lacerations received by her have left deep scars that permanently disfigure her face and that the
fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme
care being necessary in order to keep her balance in addition to the fact that all of this unfavorably
and to a great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff
Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to
him by way of indemnity for damages consisting in the loss of his income as journalist and author as
a result of his illness. This question has impliedly been decided in the negative when the defendantappellant entity's petition for the reduction of said indemnity was denied, declaring it to be
reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his
wife's services in his business as journalist and author, which services consisted in going over his
writings, translating them into English, German and Swedish, and acting as his secretary, in addition
to the fact that such services formed part of the work whereby he realized a net monthly income of
P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he
needed them during her illness and had to employ a translator to act in her stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called
Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal
companionship", as a result of personal injuries which she had received from the accident now under
consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the
provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual
rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties
and obligations of the spouses. The spouses must be faithful to, assist, and support each
other. The husband must live with and protect his wife. The wife must obey and live with her
husband and follow him when he changes his domicile or residence, except when he
removes to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his
wife's assistance. This assistance comprises the management of the home and the performance of
household duties, including the care and education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of which he is the head. When the wife's
mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage
alone, that she performed all the said tasks and her physical incapacity always redounded to the
husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when
women, in their desire to be more useful to society and to the nation, are demanding greater civil
rights and are aspiring to become man's equal in all the activities of life, commercial and industrial,
professional and political, many of them spending their time outside the home, engaged in their
businesses, industry, profession and within a short time, in politics, and entrusting the care of their
home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions
which take charge of young children while their mothers are at work, marriage has ceased to create
the presumption that a woman complies with the duties to her husband and children, which the law
imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of
her domestic services must prove such services. In the case under consideration, apart from the
services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been
proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of
domestic services and their nature, rendered by her prior to the accident, in order that it may serve
as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely
personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs.
Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such
services to prove that the person obliged to render them had done so before he was injured and that
he would be willing to continue rendering them had he not been prevented from so doing.
In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a crossing an does not see to it that its flagman
and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is
guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross

its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity
on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive;
(3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl
belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover
damages for deprivation of his wife's assistance during her illness from an accident, it is necessary
for him to prove the existence of such assistance and his wife's willingness to continue rendering it
had she not been prevented from so doing by her illness.
The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the
indemnities adjudicated to them, from the date of the appealed judgment until this judgment
becomes final, in accordance with the provisions of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the
sole modification that interest of 6 per cent per annum from the date of the appealed judgment until
this judgment becomes final will be added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.
Malcolm, Hull, Imperial, and Goddard, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21291

March 28, 1969

PRECIOLITA V. CORLISS, plaintiff-appellant,

vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and
with reason. The future, bright with promise, looms ahead. One's powers are still to be tested, but
one feels ready for whatever challenge may come his way. There is that heady atmosphere of selfconfidence, at times carried to excess. The temptation to take risks is there, ever so often, difficult, if
not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually
associated with age. For death seems so remote and contingent an event. Such is not always the
case though, and a slip may be attended with consequences at times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court when it dismissed the complaint
for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late

Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when the jeep
he was driving collided with a locomotive of defendant-appellee Manila Railroad Company, close to
midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga,
in front of the Clark Air Force Base. In the decision appealed from, the lower court, after
summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he
became the victim of his own miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory
proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought in
the concept of damages reaching the sum of P282,065.40. An examination of the evidence of record
fails to yield a basis for a reversal of the decision appealed from. We affirm.
According to the decision appealed from, there is no dispute as to the following: "In December
1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was
an air police of the Clark Air Force Base; that at the time of the accident, he was driving the fatal
jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that
Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained
serious physical injuries and burns." 2
Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus:
"Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, ..., that at the time
of the accident, he also awaiting transportation at the entrance of Clark Field, which was about 40 to
50 yards away from the tracks and that while there he saw the jeep coming towards the Base. He
said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did
not stop dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted
into first gear and that was what he meant by a brief stop. He also testified that he could see the
train coming from the direction of San Fernando and that he heard a warning but that it was not
sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff,
testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train
coming from Angeles and a jeep going towards the direction of Clark Field. He stated that he heard
the whistle of the locomotive and saw the collision. The jeep, which caught fire, was pushed forward.
He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the tooting of the
horn. It did not stop at the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness for defendant-appellee,
Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that before
the locomotive, which had been previously inspected and found to be in good condition approached,
the crossing, that is, about 300 meters away, he blew the siren and repeated it in compliance with
the regulations until he saw the jeep suddenly spurt and that although the locomotive was running
between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was caught
in the middle of the tracks." 5
1. The above finding as to the non-existence of negligence attributable to defendant-appellee
Manila Railroad Company comes to us encased in the armor of what admittedly appears to be a
careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any attack

unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face
of even the most formidable barrage.
In the more traditional terminology, the lower court judgment has in its favor the presumption of
correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing
carefully what was testified to and apparently did not neglect it. There is no affront to justice then if
its finding be accorded acceptance subject of course the contingency of reversal if error or errors,
substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when there is found to be a
rational basis for the result reached by the trial court.
As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is
the one at issue, the trial court's judgment as to their degree of credence deserves serious
consideration by this Court." 6 An earlier expression of the same view is found in Jai-Alai Corporation
v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings of the court
below. The questions raised hinge on credibility and it is well-settled that in the absence of
compelling reasons, its determination is best left to the trial judge why had the advantage of hearing
the parties testify and observing their demeanor on the witness stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any
arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out by the evidence presented. We are denied,
therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the
Tribunal to hold trial judges better situated to make conclusions on questions of fact'." 8 On this
ground alone we can rest the affirmance of the judgment appealed from.
lwphi1.et

2. Nor is the result different even if no such presumption were indulged in and the matter examined
as if we were exercising original and not appellate jurisdiction. The sad and deplorable situation in
which plaintiff-appellant now finds herself, to the contrary notwithstanding we find no reason for
reversing the judgment of the lower court.
This action is predicated on negligence, the Civil Code making clear that whoever by act or
omission causes damage to another, there being negligence, is under obligation to pay for the
damage done. 9 Unless it could be satisfactorily shown, therefore, that defendant-appellee was guilty
of negligence then it could not be held liable. The crucial question, therefore, is the existence of
negligence.
The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain,
formerly applicable in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v.
Cadwallader Gibson Lumber Co.,11 Manresa was cited to the following effect "'Among the questions
most frequently raised and upon which the majority of cases have been decided with respect to the
application of this liability, are those referring to the determination of the damage or prejudice, and to
the fault or negligence of the person responsible therefor. These are the two indispensable factors in
the obligations under discussion, for without damage or prejudice there can be no liability, and
although this element is present no indemnity can be awarded unless arising from some person's
fault or negligence'."

Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United States
v. Barias. 13Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions.
Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure
to observe for the protection of the interests of another person that degree of care, precaution and
vigilance which the circumstance justly demand whereby such other person suffers injury." There
was likewise a reliance on Ahern v. Oregon Telephone Co. 14Thus: "Negligence is want of the care
required by the circumstances. It is a relative or comparative, not an absolute term and its
application depends upon the situation of the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of
plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that the
liability sought to be fastened on defendant-appellee had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on
the ground that there was a failure to appreciate the true situation. Thus the first three assigned
errors are factual in character. The third assigned error could be summarily disposed of. It would go
against the evidence to maintain the view that the whistle was not sounded and the brakes not
applied at a distance of 300 meters before reaching the crossing.
The first two assigned errors would make much of the failure of the lower court to hold that the
crossing bars not having been put down and there being no guard at the gate-house, there still was
a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who drove
the engine, was not qualified to do so at the time of the accident. For one cannot just single out
circumstance and then confidently assign to it decisive weight and significance. Considered
separately, neither of the two above errors assigned would call for a judgment different in character.
Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The
quantum of proof required still not been met. The alleged errors fail of their said effect. The case for
plaintiff-appellant, such as it had not been improved. There is no justification for reversing the
judgment of the lower court.
It cannot be stressed too much that the decisive considerations are too variable, too dependent in
the lid analysis upon a common sense estimate of the situation as it presented itself to the parties for
us to be able to say that this or that element having been isolated, negligence is shown. The factors
that enter the judgment are too many and diverse for us to imprison them in a formula sufficient of
itself to yield the correct answer to the multi-faceted problems the question of negligence poses.
Every case must be dependent on its facts. The circumstances indicative of lack of due care must be
judged in the light of what could reasonably be expected of the parties. If the objective standard of
prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the controlling facts to impute
negligence to defendant-appellee. The first three errors assigned certainly do not call for that
conclusion.

4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant

apparently had in mind this portion of the opinion of the lower court: "The weight of authorities is to
the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it, and
that those who, for reasons of their own, ignore such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must
have known that locomotive engines and trains usually pass at that particular crossing where the
accident had taken place." 15
Her assignment of error, however, would single out not the above excerpt from the decision
appealed from but what to her is the apparent reliance of the lower court on Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v. Manlabat & Pasibi. 17 In the Manabat case, the
doctrine announced by this Court follows: "A person in control of an automobile who crosses a
railroad, even at a regular road crossing, and who does not exercise that precaution and that control
over it as to be able to stop the same almost immediately upon the appearance of a train, is guilty of
criminal negligence, providing a collision occurs and injury results. Considering the purposes and the
general methods adopted for the management of railroads and railroad trains, we think it is
incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing.
He should approach a railroad crossing cautiously and carefully. He should look and listen and do
everything that a reasonably prudent man would do before he attempts to cross the track." The
Mestres doctrine in a suit arising from a collision between an automobile and a street car is
substantially similar. Thus: "It may be said, however, that, where a person is nearing a street
crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who
can most readily adjust himself to the exigencies of the case, and where such person can do so
more readily, the motorman has a right to presume that such duty will be performed."
It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent
rigid and inflexible doctrine thus set forth in the two above cases evidenced by Lilius v. Manila
Railroad Co., 18 the controlling facts of which, however, are easily distinguishable from what had been
correctly ascertained in the present case. Such a deviation from the earlier principle announced is
not only true of this jurisdiction but also of the United States.
This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the
following to say: "Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would require an
automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen,
and if he cannot be sure otherwise that no train is coming to get out of the car. The basic idea behind
this is sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require looking, hearing,
and a stop, or at least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to
Prosser, it being shown that "the only effective stop must be made upon the railway tracks
themselves, in a position of obligation danger, the court disregarded any such uniform rule, rejecting
the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and sometimes
even dangerous,' and saying that the driver need not always stop. 'Illustrations such as these,' said
Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of behavior that

amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21
What Justice Cardozo announced would merely emphasize what was set forth earlier that each
and every, case on questions of negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and fast rule. There must be that
observance of that degree of care, precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated
on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity
with the setup of the checkpoint, the existence of the tracks; and on the further fact that the
locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss
Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to
avoid a possible accident and this consisted simply in stopping his vehicle before the crossing
and allowing the train to move on. A prudent man under similar circumstances would have acted in
this manner. This, unfortunately, Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is
affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano,
Teehankee and Barredo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.

STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric
Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum of P11,350,
with interest and costs. Upon hearing the cause the trial court gave judgment in favor of the plaintiff

to recover of the defendant the sum of P9,850, with interest at 6 per centum per annum from March
24,1927, the date of the filing of the complaint, until satisfaction of the judgment, with costs. From
this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with which we
are here concerned, H.D. Cranston was the representative of the plaintiff in the City of Manila. At the
same time the plaintiff was the registered owner of the motor schooner Gwendoline, which was used
in the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to
have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner,
expecting thereby to effect economy in the cost of running the boat. He therefore made known his
desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said company, that
he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street,
in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation
and had a conference with C.E. Quest, its manager, who agreed to do the job, with the
understanding that payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an automobile agency,
but, under its charter, it had authority to deal in all sorts of machinery engines and motors, as well as
to build, operate, buy and sell the same and the equipment therof. Quest, as general manager, had
full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while
it lay at anchor in the Pasig River, and the work of effecting the change in the engine was begun and
conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the
boat. In this work Quest had the assistance of the members of the crew of the Gwendoline, who had
been directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor
was chosen as the one most adapted to the purpose. After this appliance had been installed, the
engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to contain the
mixture was placed on deck above and at a short distance from the compartment covering the
engine. This tank was connected with the carburetor by a piece of tubing, which was apparently not
well fitted at the point where it was connected with the tank. Owing to this fact the fuel mixture
leaked from the tank and dripped sown into the engine compartment. The new fuel line and that
already in use between the gasoline tank and carburetor were so fixed that it was possible to change
from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the operator
to start the engine on gasoline and then, after the engine had been operating for a few moments, to
switch to the new fuel supply.
lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed that
the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower
part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared to think

lightly of the matter and said that, when the engine had gotten to running well, the flooding would
disappear.
After preliminary experiments and adjustments had been made the boat was taken out into the bay
for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the
course was covered without any untoward development, other than he fact that the engine stopped a
few times, owing no doubt to the use of an improper mixture of fuel. In the course of the trial Quest
remained outside of the engine compartment and occupied himself with making distillate, with a view
to ascertaining what proportion of the two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the
engine stopped, and connection again had to be made with the gasoline line to get a new start. After
this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture.
A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into
the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames,
which the members of the crew were unable to subdue. They were therefore compelled, as the fire
spread, to take to a boat, and their escape was safely effected, but theGwendoline was reduced to a
mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the
boat, before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was
apparently at too great an elevation from the carburetor, with the result that when the fuel line was
opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor, already saturated
with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable
material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in
this case the leak along the pipe line and the flooding of the carburetor had created a dangerous
situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions
to avoid. The back fire may have been due either to the fact that the spark was too advanced or the
fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being competent
to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the
care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows
that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does
not appear that he was experienced in the doing of similar work on boats. For this reason, possibly
the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to
his mind an adequate impression of the danger of fire. But a person skilled in that particular sort of
work would, we think have been sufficiently warned from those circumstances to cause him to take
greater and adequate precautions against the danger. In other words Quest did not use the skill that
would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There
was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible
harm, and this constitutes negligence. The burning of the Gwendoline may be said to have resulted
from accident, but this accident was in no sense an unavoidable accident. It would not have occured

but for Quest's carelessness or lack of skill. The test of liability is not whether the injury was
accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest undertook to accomplish; and even supposing that
our theory as to the exact manner in which the accident occurred might appear to be in some
respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it
was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendolineduring the experimental run, the defendant corporation was in the position of a bailee
and that, as a consequence, the burden of proof was on the defendant to exculpate itself from
responsibility by proving that the accident was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this
trial run. His employment contemplated the installation of new parts in the engine only, and it seems
rather strained to hold that the defendant corporation had thereby become bailee of the boat. As a
rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach
without taking it to his shop, are not bailees, and their rights and liabilities are determined by the
general rules of law, under their contract. The true bailee acquires possession and what is usually
spoken of as special property in the chattel bailed. As a consequence of such possession and
special property, the bailee is given a lien for his compensation. These ideas seem to be
incompatible with the situation now under consideration. But though defendant cannot be held liable
in the supposition that the burden of proof had not been sustained by it in disproving the negligence
of its manager, we are nevertheless of the opinion that the proof shows by a clear preponderance
that the accident to the Gwendoline and the damages resulting therefrom are chargeable to the
negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after
Quest had ceased to be manager of the defendant corporation and had gone back to the United
States. Upon these facts, the defendant bases the contention that the action should be considered
stale. It is sufficient reply to say that the action was brought within the period limited by the statute of
limitations and the situation is not one where the defense of laches can be properly invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount of
P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.
Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the company, which entitled him to ride upon the
company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose
from his seat in the second class-car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with his right hand for
support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform
which begins to rise with a moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover the length of several coaches.
As the train slowed down another passenger, named Emilio Zuiga, also an employee of the railroad
company, got off the same car, alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped
off also, but one or both of his feet came in contact with a sack of watermelons with the result that
his feet slipped from under him and he fell violently on the platform. His body at once rolled from the
platform and was drawn under the moving car, where his right arm was badly crushed and lacerated.
It appears that after the plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is
found in the fact that it was the customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were contained in numerous sacks
which has been piled on the platform in a row one upon another. The testimony shows that this row
of sacks was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff
was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon
the platform. His statement that he failed to see these objects in the darkness is readily to be
credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The
result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was again amputated higher up near the
shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence of
the servants and employees of the defendant in placing the sacks of melons upon the platform and
leaving them so placed as to be a menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor, the trial judge, found the facts
substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were so
placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself
had failed to use due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff
appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling
these sacks on the platform in the manner above stated; that their presence caused the plaintiff to
fall as he alighted from the train; and that they therefore constituted an effective legal cause of the
injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence.
In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of the plaintiff should be
separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at
all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint
from that presumptive responsibility for the negligence of its servants, imposed by article 1903 of the
Civil Code, which can be rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but
only to extra-contractual obligations or to use the technical form of expression, that article relates
only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa
clearly points out the difference between "culpa, substantive and independent, which of itself
constitutes the source of an obligation between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation already existing . . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition
that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach
of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one another.
But where relations already formed give rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain
cases imposed upon employers with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle ofrespondeat superior if it were, the master would be liable in
every case and unconditionally but upon the principle announced in article 1902 of the Civil Code,
which imposes upon all persons who by their fault or negligence, do injury to another, the obligation
of making good the damage caused. One who places a powerful automobile in the hands of a
servant whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of
an act of negligence which makes him liable for all the consequences of his imprudence. The
obligation to make good the damage arises at the very instant that the unskillful servant, while acting
within the scope of his employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in the selection and
direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of
his employment or not, if the damage done by the servant does not amount to a breach of the
contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant
relieves the master from liability for the latter's acts on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extracontractual culpa is always based upon a voluntary act or omission which, without willful intent, but
by mere negligence or inattention, has caused damage to another. A master who exercises all
possible care in the selection of his servant, taking into consideration the qualifications they should
possess for the discharge of the duties which it is his purpose to confide to them, and directs them
with equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third person suffer damage. True it is that under
article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care
and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua
and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extracontractual liability of the defendant to respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment. The Court, after citing the last paragraph
of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in selection
and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based
upon negligence, it is necessary that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption,
is in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the
liability created by article 1903 is imposed by reason of the breach of the duties inherent in the
special relations of authority or superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their
servants or agents, when such acts or omissions cause damages which amount to the breach of a
contact, is not based upon a mere presumption of the master's negligence in their selection or
control, and proof of exercise of the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of each
member of society constitute the measure of the corresponding legal duties, mainly negative in
character, which the existence of those rights imposes upon all other members of society. The
breach of these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests upon the fact that in cases of
non-contractual obligation it is the wrongful or negligent act or omission itself which creates
the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach
of the voluntary duty assumed by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is
competent for the legislature to elect and our Legislature has so elected whom such an
obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend
that liability, without regard to the lack of moral culpability, so as to include responsibility for the
negligence of those person who acts or mission are imputable, by a legal fiction, to others who are in
a position to exercise an absolute or limited control over them. The legislature which adopted our
Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to
cases in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the selection and control of one's
agents or servants, or in the control of persons who, by reason of their status, occupy a position of
dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the obligation
upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof
rests upon plaintiff to prove the negligence if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his
pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance is
sufficientprima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor
should assume the burden of proof of its existence, as the only fact upon which his action is
based; while on the contrary, in a case of negligence which presupposes the existence of a
contractual obligation, if the creditor shows that it exists and that it has been broken, it is not
necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach
was due to the negligent conduct of defendant or of his servants, even though such be in fact the
actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense
to the action. If the negligence of servants or agents could be invoked as a means of discharging the
liability arising from contract, the anomalous result would be that person acting through the medium
of agents or servants in the performance of their contracts, would be in a better position than those
acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be
logical to free him from his liability for the breach of his contract, which involves the duty to exercise
due care in the preservation of the watch, if he shows that it was his servant whose negligence
caused the injury? If such a theory could be accepted, juridical persons would enjoy practically
complete immunity from damages arising from the breach of their contracts if caused by negligent
acts as such juridical persons can of necessity only act through agents or servants, and it would no
doubt be true in most instances that reasonable care had been taken in selection and direction of
such servants. If one delivers securities to a banking corporation as collateral, and they are lost by
reason of the negligence of some clerk employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon

the payment of the debt by proving that due care had been exercised in the selection and direction
of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a
mere incident to the performance of a contract has frequently been recognized by the supreme court
of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the
decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense.
The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of damages
caused by the defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done
by the negligent acts of their servants will show that in no case has the court ever decided that the
negligence of the defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was
not liable for the damages caused by the negligence of his driver. In that case the court commented
on the fact that no evidence had been adduced in the trial court that the defendant had been
negligent in the employment of the driver, or that he had any knowledge of his lack of skill or
carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff
sued the defendant for damages caused by the loss of a barge belonging to plaintiff which was
allowed to get adrift by the negligence of defendant's servants in the course of the performance of a
contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the
defendant grew out of a contract made between it and the plaintiff . . . we do not think that the
provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover
damages for the personal injuries caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not
liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the
owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. .
. . The act complained of must be continued in the presence of the owner for such length of
time that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep.,
8), it is true that the court rested its conclusion as to the liability of the defendant upon article 1903,

although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to
him arising out of the contract of transportation. The express ground of the decision in this case was
that article 1903, in dealing with the liability of a master for the negligent acts of his servants "makes
the distinction between private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of servants; and that in the
particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though
founded in tort rather than as based upon the breach of the contract of carriage, and an examination
of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this
theory. Viewed from the standpoint of the defendant the practical result must have been the same in
any event. The proof disclosed beyond doubt that the defendant's servant was grossly negligent and
that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of
the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of
the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points
out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of
a contractual undertaking or its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission productive of damage due
to carelessness or inattention on the part of the defendant. Consequently, when the court holds that
a defendant is liable in damages for having failed to exercise due care, either directly, or in failing to
exercise proper care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada
case that defendant was liable for the damages negligently caused by its servants to a person to
whom it was bound by contract, and made reference to the fact that the defendant was negligent in
the selection and control of its servants, that in such a case the court would have held that it would
have been a good defense to the action, if presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact exercise care in the selection and control of
the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more
broader than that of contractual obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that
a person is bound to another by contract does not relieve him from extra-contractual liability to such
person. When such a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-contractual obligation had no
contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in
safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That
duty, being contractual, was direct and immediate, and its non-performance could not be excused by
proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its contractual

obligation to maintain safe means of approaching and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the
train had come to a complete stop before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence, no
liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the
particular injury suffered by him could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for a passenger to alight from a
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the
opinion that this proposition is too badly stated and is at variance with the experience of every-day
life. In this particular instance, that the train was barely moving when plaintiff alighted is shown
conclusively by the fact that it came to stop within six meters from the place where he stepped from
it. Thousands of person alight from trains under these conditions every day of the year, and sustain
no injury where the company has kept its platform free from dangerous obstructions. There is no
reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it
not been for defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to
be considered whether an ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the circumstances disclosed by
the evidence. This care has been defined to be, not the care which may or should be used
by the prudent man generally, but the care which a man of ordinary prudence would use
under similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol.
3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there anything in the circumstances surrounding the
plaintiff at the time he alighted from the train which would have admonished a person of average
prudence that to get off the train under the conditions then existing was dangerous? If so, the plaintiff
should have desisted from alighting; and his failure so to desist was contributory negligence.
1awph!l.net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the
effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the
platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford
to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the
absence of some circumstance to warn him to the contrary, that the platform was clear. The place,

as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part
of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by any
possibility concede that it had right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The distance from the steps of the car
to the spot where the alighting passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of the platform, constructed as it was
of cement material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no
means so risky for him to get off while the train was yet moving as the same act would have been in
an aged or feeble person. In determining the question of contributory negligence in performing such
act that is to say, whether the passenger acted prudently or recklessly the age, sex, and
physical condition of the passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their wearing
apparel obstructs the free movement of the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and of the train at this station. There could,
therefore, be no uncertainty in his mind with regard either to the length of the step which he was
required to take or the character of the platform where he was alighting. Our conclusion is that the
conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not
characterized by imprudence and that therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered have permanently disabled him from continuing
that employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His
expectancy of life, according to the standard mortality tables, is approximately thirty-three years. We
are of the opinion that a fair compensation for the damage suffered by him for his permanent
disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum
of P790.25 for medical attention, hospital services, and other incidental expenditures connected with
the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77679 September 30, 1987

VICENTE VERGARA, petitioner,

vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.
RESOLUTION

PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private
respondent against petitioner. The action arose from a vehicular accident that occurred on 5 August
1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to
petitioner, rammed "head-on" the store-residence of the private respondent, causing damages
thereto which were inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte
operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to
respond to his effort and as a result of a blown-out tire and despite application of his brakes, the said
cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an
act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation,
alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was
insured by the third party defendant insurance company. Petitioner asked that the latter be ordered
to pay him whatever amount he may be ordered by the court to pay to the private respondent.
The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of
Appeals, the latter court affirmed in toto the decision of the trial court, which ordered Petitioner to
pay, jointly and severally with Travellers Insurance and Surety Corporation, to the private,
respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c)
P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees and the costs.
On the third party complaint, the insurance company was sentenced to pay to the petitioner the
following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy;
and (b) P3,000.00 for and as attorney's fees.
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is
not tenable. It was established by competent evidence that the requisites of a quasi-delict are
present in the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or
omission, of which defendant, or some person for whose acts he must respond, was guilty; and (3)
the connection of cause and effect between such negligence and the damages.
It is undisputed that private respondent suffered damages as a result of an act or omission of
petitioner. The issue of whether or not this act or omission can be considered as a "negligent" act or

omission was passed upon by the trial court. The findings of said court, affirmed by the respondent
court, which we are not prepared to now disturb, show that the fact of occurrence of the "vehicular
accident" was sufficiently established by the policy report and the testimony of Patrolman Masiclat.
And the fact of negligence may be deduced from the surrounding circumstances thereof. According
to the police report, "the cargo truck was travelling on the right side of the road going to Manila and
then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle;
and then another bicycle; and then said cargo truck rammed the store warehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the latter did not work due to
mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can
not be consideration as fortuitous in character. Certainly, the defects were curable and the accident
preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of
negligence on his part in the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there was negligence on the part of the
petitioner, the petitioner's contention that the respondent court erred in awarding private respondent
actual, moral and exemplary damages as well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79578

March 13, 1991

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner,

vs.
HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES
TIMAN, respondents.
Salalima, Trenas, Pagaoa & Associates for petitioner.
Paul P. Lentejas for private respondents.
SARMIENTO, J.:
A social condolence telegram sent through the facilities of the petitioner gave rise to the present
petition for review on certiorari assailing the decision of the respondent Court of Appeals which
1

affirmed in toto the judgment of the trial court, dated February 14, 1985, the dispositive portion of
which reads:
2

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual
and compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary
damages.
2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant.
SO ORDERED.

The facts as gleaned from the records of the case are as follows:
On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a
telegram of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City,
through petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao,
Quezon City, to convey their deepest sympathy for the recent death of the mother-in-law of Hilario
Midoranda to wit:
4

MR. & MRS. HILARIO MIDORANDA

TRINIDAD, CALBAYOG CITY
MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST
SYMPATHY TO YOU AND MEMBERS OF THE FAMILY.
MINER & FLORY.

The condolence telegram was correctly transmitted as far as the written text was concerned.
However, the condolence message as communicated and delivered to the addressees was
typewritten on a "Happy Birthday" card and placed inside a "Christmasgram" envelope. Believing
that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner was done
intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of the
private respondents and the addressees, including their friends and relatives, the spouses Timan
demanded an explanation. Unsatisfied with RCPI's explanations in its letters, dated March 9 and
April 20, 1983, the Timans filed a complaint for damages.
6

The parties stipulated at the pre-trial that the issue to be resolved by the trial court was:
WHETHER or not the act of delivering the condolence message in a Happy Birthday" card
with a "Christmasgram" envelope constitutes a breach of contract on the part of the
defendant. If in the affirmative, whether or not plaintiff is entitled to damages.
7

The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by
the Court of Appeals. RCPI now submits the following assignment of errors:

I
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL
AND COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05.
II
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL
DAMAGES IN THE AMOUNT OF P10,000.00.
III
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY
EXEMPLARY DAMAGES IN THE AMOUNT OF P5,000.00.
IV
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY
ATTORNEYS FEES IN THE AMOUNT OF P5,000.00 PLUS COSTS OF SUIT.
8

The four assigned errors are going to be discussed jointly because they are all based on the same
findings of fact.
We fully agree with the appellate court's endorsement of the trial court's conclusion that RCPI, a
corporation dealing in telecommunications and offering its services to the public, is engaged in a
business affected with public interest. As such, it is bound to exercise that degree of diligence
expected of it in the performance of its obligation.
9

One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was
received by the addressees on time despite the fact that there was "error" in the social form and
envelope used. RCPI asserts that there was no showing that it has any motive to cause harm or
damage on private respondents:
10

Petitioner humbly submits that the "error" in the social form used does not come within the
ambit of fraud, malice or bad faith as understood/defined under the law.
11

We do not agree.
In a distinctly similar case, and oddly also involving the herein petitioner as the same culprit, we
held:
12

Petitioner is a domestic corporation engaged in the business of receiving and transmitting

messages. Everytime a person transmits a message through the facilities of the petitioner, a
contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to
transmit the message accurately . . . As a corporation, the petitioner can act only through its
employees. Hence the acts of its employees in receiving and transmitting messages are the

acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its
employees in the pursuit of petitioner's business is to deprive the general public availing of
the services of the petitioner of an effective and adequate remedy.
13

Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to
convey a message of sorrow and sympathy. Precisely, it is denominated "telegram of condolence"
because it tenders sympathy and offers to share another's grief. It seems out of this world, therefore,
to place that message of condolence in a birthday card and deliver the same in a Christmas
envelope for such acts of carelessness and incompetence not only render violence to good taste
and common sense, they depict a bizarre presentation of the sender's feelings. They ridicule the
deceased's loved ones and destroy the atmosphere of grief and respect for the departed.
Anyone who avails of the facilities of a telegram company like RCPI can choose to send his
message in the ordinary form or in a social form. In the ordinary form, the text of the message is
typed on plain newsprint paper. On the other hand, a social telegram is placed in a special form with
the proper decorations and embellishments to suit the occasion and the message and delivered in
an envelope matching the purpose of the occasion and the words and intent of the message. The
sender pays a higher amount for the social telegram than for one in the ordinary form. It is clear,
therefore, that when RCPI typed the private respondents' message of condolence in a birthday card
and delivered the same in a colorful Christmasgram envelope, it committed a breach of contract as
well as gross negligence. Its excuse that it had run out of social condolence cards and envelopes is
flimsy and unacceptable. It could not have been faulted had it delivered the message in the ordinary
form and reimbursed the difference in the cost to the private respondents. But by transmitting it
unfittinglythrough other special forms clearly, albeit outwardly, portraying the opposite feelings of
joy and happiness and thanksgivingRCPI only exacerbated the sorrowful situation of the
addressees and the senders. It bears stress that this botchery exposed not only the petitioner's
gross negligence but also its callousness and disregard for the sentiments of its clientele, which
tantamount to wanton misconduct, for which it must be held liable for damages.
14

It is not surprising that when the Timans' telegraphic message reached their cousin, it became the
joke of the Midorandas' friends, relatives, and associates who thought, and rightly so, that the
unpardonable mix-up was a mockery of the death of the mother-in-law of the senders' cousin. Thus it
was not unexpected that because of this unusual incident, which caused much embarrassment and
distress to respondent Minerva Timan, he suffered nervousness and hypertension resulting in his
confinement for three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City.
15

The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the
fact and amount of damages, but must depend on the actual proof that damages had been suffered
and evidence of the actual amount. In other words, RCPI insists that there is no causal relation of
the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of
fact. The findings of fact of the trial court and the respondent court concur in favor of the private
respondents. We are bound by such findingsthat is the general rule well-established by a long line
of cases. Nothing has been shown to convince us to justify the relaxation of this rule in the
petitioner's favor. On the contrary, these factual findings are supported by substantial evidence on
record.
16

Anent the award of moral and exemplary damages assigned as errors, the findings of the
respondent court are persuasive.
1wphi1

. . . When plaintiffs placed an order for transmission of their social condolence telegram,
defendant did not inform the plaintiff of the exhaustion of such social condolence forms.
Defendant-appellant accepted through its authorized agent or agency the order and received
the corresponding compensation therefor. Defendant did not comply with its contract as
intended by the parties and instead of transmitting the condolence message in an ordinary
form, in accordance with its guidelines, placed the condolence message expressing sadness
and sorrow in forms conveying joy and happiness. Under the circumstances, We cannot
accept the defendant's plea of good faith predicated on such exhaustion of social
condolence forms. Gross negligence or carelessness can be attributed to defendantappellant in not supplying its various stations with such sufficient and adequate social
condolence forms when it held out to the public sometime in January, 1983, the availability of
such social condolence forms and accepted for a fee the transmission of messages on said
forms. Knowing that there are no such forms as testified to by its Material Control Manager
Mateo Atienza, and entering into a contract for the transmission of messages in such forms,
defendant-appellant committed acts of bad faith, fraud or malice. . . .
17

RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in
character, is without merit. We have so held in many cases, and oddly, quite a number of them
likewise involved the herein petitioner as the transgressor.
18

xxx

xxx

xxx

. . . In contracts and quasi-contracts, exemplary damages may be awarded if the defendant

acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross
negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI
must be held liable. Gross carelessness or negligence constitutes wanton misconduct.
1wphi1

xxx

xxx

xxx

. . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of
messages, even though those acts are neither authorized nor ratified (Arkansas & L.R. Co.
vs. Stroude 91 SW 18; West vs. Western U. Tel. Co., 17 P807; Peterson vs. Western U. Tel.
Co., 77 NW 985; Brown vs. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have
been recovered for mistakes in the transmission of telegrams (Pittman vs. Western Union
Tel. Co., 66 SO 977; Painter vs. Western Union Tel. Co., 84 SE 293) (emphasis supplied).
19

We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has
reached this Court in which the petitioner was time and again held liable for the same causes as in
the present case breach of contract and gross negligencethe ineluctable conclusion is that it has
not in any way reformed nor improved its services to the public. It must do so now or else next time
the Court may be constrained to adjudge stricter sanctions.
WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.

Costs against the petitioner.

SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 105180 July 5, 1993

PANTRANCO NORTH EXPRESS, INC., petitioner,
vs.
HONORABLE COURT OF APPEALS, Heirs of BENJAMIN TANDOC y DELA CRUZ, DAISY
TANDOC MAMENTA in her behalf and in behalf of her minor children DAPHNE MORENMAMENTA and PATRICIA DAYAN MAMENTA, respondents.
Teodoro C. Fernandez for petitioner.
Cipriano P. Famorca for private-respondent.

DAVIDE, JR., J.:

On 23 April 1985 at about 3:00 p.m., a vehicular accident occurred along the MacArthur Highway at
Barangay Bacag, Villasis, Pangasinan involving two buses owned and operated by the Pantranco
North Express, Inc, (PNEI) and a Toyota Corona car owned by Vice-Mayor Benjamin Tandoc of
Tayug, Pangasinan which was then being driven by his son-in-law, Patricio Mamenta. As a result of
the three-vehicle collision, Patricio Mamenta and Samson de Vera, who was the driver of one of the
PNEI buses, died, while Benjamin Tandoc, Jose Sison (an occupant of the Toyota car) and several
passengers of the PNEI buses suffered physical injuries. The Toyota car was a total wreck.
On 23 July 1985, Benjamin Tandoc and the heirs of Patricio Mamenta, namely, his wife, Daisy
Tandoc-Mamenta, and his minor children, Daphne and Patricia Dayan, filed a complaint for damages
against PNEI and the Philippine National Bank (PNB) with the Regional Trial Court of Tayug,
Pangasinan. The PNB was impleaded because it is allegedly the mortgagee, receiver, and/or owner
of PNEI, hence an indispensable party. The complaint was docketed as Civil Case No. T1721. 1 PNEI filed its Answer with Counterclaim on 22 August 1985. 2 PNB filed a motion to dismiss 3 and
upon its denial 4 by the trial court, it filed its Answer with Counterclaim. 5

On 17 June 1987, during the pendency of the case, Benjamin Tandoc died of a heart attack. He was
substituted by his heirs.
On 15 December 1989, the trial court rendered a decision 6 dismissing the complaint against the PNB
but holding the PNEI liable to the plaintiffs as follows:
On the First Cause of Action
1. To pay the heirs of deceased Benjamin Tandoc the following sums of money:
a) Hospitalization and Medical Expenses P 17,211.55
b) Value of Car 100,000.00
c) Loss of Earning Capacity 300,000.00
d) Moral Damages 150,000.00
e) Exemplary Damages 30,000.00
f) Attorney's fees 80,000.00

TOTAL P677,211.55
On the Second Cause of Action
2. To pay the heirs of deceased Patricio Mamenta the following sums of money:
a) Death Indemnity P 30,000.00
b) Funeral & related Expenses 54,450.00
c) Loss of Earning Capacity 133,333.33
d) Moral Damages 50,000.00
e) Exemplary Damages 30,000.00

TOTAL P297,783.33
Plus costs.
PNEI appealed the decision to the Court of Appeals which docketed the case as CA-G.R. CV No.
26220.
In a decision 7 promulgated on 31 March 1992, the Court of Appeals affirmed with modification the
judgment of the trial court. The modification consists in the reduction of the awards for the value of the car
and for funeral and related expenses to P80,000.00 and P8,000.00, respectively.
Still dissatisfied, PNEI came to this Court via this petition for review on certiorari under Rule 45 of the
Rules of Court and alleges the following grounds in support thereof:
1. THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
IN HOLDING THAT THE LOWER COURT DID NOT ERR IN ASSUMING

JURISDICTION OVER THE CASE DESPITE NON- PAYMENT OF REQUIRED

DOCKET FEES.
2. EVEN ASSUMING, WITHOUT ADMITTING, THAT THE LOWER COURT DID
NOT ERR IN ASSUMING JURISCTION (sic) OVER THE CASE, THE COURT OF
APPEALS GRAVELY ABUSED ITS DISCRETION IN UPHOLDING THE AWARD
FOR LOSS OF EARNING CAPACITY OF BENJAMIN TANDOC.
3. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
UPHOLDING THE LOWER COURT'S AWARD FOR ATTORNEY'S (sic) FEES.
4. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
DISREGARDING THE RULE ON RES GESTAE.
5. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT IT WAS THE
DRIVER OF PANTRANCO BUS NO. 1202 WHO WAS RESPONSIBLE FOR THE
ACCIDENT. 8
The factual findings of the Court of Appeals are as follows:
The plaintiffs and the defendant PNEI have conflicting versions of the incident that
resulted in a mishap which killed not only Patricio Mamenta and caused physical
injuries not only to Benjamin Tandoc but also to several others who were passengers
of the two (2) Pantranco buses that figured in the accident.
According to the testimony of Benjamin Tandoc, in the afternoon of April 23, 1985, he
was riding in his Toyota car at the backseat thereof with Jose Sison, while his son-inlaw Patricio Mamenta was driving. They had come from Binalonan, Pangasinan and
were cruising along the MacArthur Highway bound towards the south. While they
were negotiating a sharp curve in Bacag, Villasis, Pangasinan where no overtaking
was allowed, as shown by two (2) yellow parallel lines painted in the center of the
highway, a Pantranco bus bound northward for Baguio City overtook several vehicles
and was coming towards the Toyota car. Tandoc told Mamenta to go to the shoulder
of the road, seeing that the Pantranco was running very fast and was about to collide
with the car. However, before Mamenta could swerve towards the shoulder, the
Pantranco bus bumped the left front side of the car, which was pushed up towards
the shoulder. At that moment the car was a also bumped from behind by another
Pantranco bus which had been following it, thus causing the car to be sandwiched
between the two (2) Pantranco buses.
As a result of the impact, Mamenta died. Tandoc lost consciousness, and when he
regained it the following morning, he was already at the Urdaneta Sacred Heart
Hospital. His left elbow was dislocated and he sustained lacerated wounds in his left
eyebrow, left eyelids, and left upper lips.

Jose Sison corroborated the testimony of Tandoc on how the incident happened,
maintaining that the Pantranco bus had overtaken several vehicles before its front
left side hit the car at its left front portion. He too lost consciousness and regained it
at the Urdaneta Emergency Hospital at about 6:00 P.M. He suffered two (2) broken
ribs.
Upon the other hand, Pedro Duay, the driver of the Pantranco Bus No. 1122 which
had been following the Toyota car of Tandoc, testified that while he was cruising the
curved portion of MacArthur Highway at Bgy. Bacag, the Toyota car overtook and
passed his bus to a distance of about five (5) meters and while the said car was still
at the center lane of the highway going towards Manila, an oncoming Pantranco Bus
No. 1202 bumped the car, causing it to be thrown towards the right side of the
highway. After the impact, Duay said, the Pantranco Bus No. 1202 rammed his bus
on the left front portion thereof. As a result of the incident he suffered a fractured right
leg and his left chin and jaw were also injured.
The conductor of bus No. 1122, Edgardo Cayanan, testified that when the incident
took place, he had his back turned towards the driver and he was facing the rear part
of the bus because he was then talking to two (2) women passengers regarding
student tickets, hence he did not see what actually happened.
Another witness, however, testified for the defense. He was Leonardo Lopez, Jr., a
member of the INP in Paniqui, Tarlac, who stated that at the time of the incident he
and his family were riding in a Mazda mini-bus going home to Tarlac from a beach
resort in La Union. He stated that the car tried to overtake but did not make it and it
was hit by a Pantranco bus going to Baguio City, while another Pantranco bus also
hit the car at its rear portion. He took shots of the incident and then gave them to an
employee of the Pantranco.
Faced with these conflicting versions as to which vehicle actually overtook vehicles in
a no overtaking-zone, the lower court gave credence to the version of the plaintiffs,
which was supported by the findings of the policemen who conducted an on the spot
investigation of the incident.
Pat. Renario B. Acosta of the Integrated National Police of Villasis, Pangasinan, a
police investigator since 1972, and the OIC of the Investigation Section of the Villasis
Police Station conducted an investigation of the incident. We quote pertinent portions
of the written report he submitted:
2. Detailed investigations revealed that the above-mentioned PANTRANCO with
Body No. 1202 was then in the process of overtaking within the prohibitive zone, as
shown by the double yellow line in the center of the road, and without taking the
necessary precaution to avoid damage to and loss of lives and properties, and
considering the several vehicles ahead proceeding north direction and while in the
process of overtaking by taking the western lane of the MacArthur Highway, bumped
and sideswiped the oncoming Toyota Car hereto above mentioned. After the impact,

the said car turned on its side and finally rested on the western side of the shoulder
of the road facing East direction. The said PANTRANCO bus with Body No. 1202
went further along the same lane intended for oncoming vehicles coming from the
North, again collided and bumped head-on another PANTRANCO passenger bus
with Body No. 1122 coming from the North proceeding southward direction. After the
impact, both PANTRANCO buses finally rested on the western shoulder of the
highway, wherein the rear portion of Bus No. 1122 was facing Northeast direction,
while the rear portion of Bus No. 1202 was facing Southeast direction both buses
were occupying the western portion of the MacArthur Highway.
3. That the probable impact between the PANTRANCO Bus with Body No. 1202 and
the Toyota Car took place near the western edge of the asphalt pavement of the
highway as evidenced by the scattered pieces of glasses and other objects found on
the surface of the road; while the point of impact between the two buses was likewise
indicated on the attached sketch taken and prepared by Pat. Ruben V. Pituc of this
unit. In both cases, the impact took place at the lane intended for vehicles coming
from the north proceeding south direction.
Another policeman, Pat. Ruben Pituc, prepared a sketch at the scene of the incident.
The defense had tried to discredit the investigation report of Pat. Acosta by
presenting Police Major Romeo Basco, then Station Commander of the INP in
Villasis. Major Basco testified that upon knowing that a vehicular accident happened
in Barangay Bacag, he went to the scene where he saw Patrolmen Acosta and Pituc
still conducting their investigation. He made a Spot Report to the effect that:
Investigation conducted disclosed that both buses were bound Manila and Baguio
City, when the above-mentioned car tried to overtake bus bound Manila. At this
juncture, Pantranco (sic) bus bound Baguio City, while on its full speed, bumped said
car which resulted to their instant death and simultaneously collided with the Manila
bound bus which caused damages on both vehicle.
Major Bascos claimed that he based this report on the investigation conducted by
Pat. Abrenica and the information given by the residents of the place. He stated that
Pat. Acosta was not in charge of investigation while Pat. Pituc only prepared a sketch
but was not an investigator. He informed the court that his own investigation prevails
over that of the others when there is a discrepancy. He, however, confirmed that he
agreed with the sketch prepared by Pat. Pituc.
We agree with the trial court when it gave more weight to the findings of Pat. Acosta,
"it possessing the earmarks of truth and credibility insofar as it stated how the
incident actually happened". The court took note of the fact that Pat. Acosta had
been a police investigator for thirteen (13) years and was the chief investigator of
their police station; that his report was based on interviews with plaintiff Tandoc, from
residents near the place of the incident, especially one Arcadio Menor, who was in
his store some 40 to 50 meters away from the scene; and more importantly, his own

visual inspection of the damages sustained by the three (3) vehicles involved in the
incident.
On the other hand, Maj. Bascos relied heavily for his Spot Report on the version of a
certain Pat. Jose Abrenica who was supposedly at the scene at the time of the
incident. However, as the trial court stated, Pat. Abrenica was not presented as a
witness and it is doubted whether he was actually at the scene, since his name was
never mentioned in the testimonies of Patrolmen Acosta or Pituc or of the other
defense witnesses. Furthermore, there is no showing that Major Bascos is qualified
as a traffic accident investigator. The mere fact that he is a superior officer of Pat
Acosta does not make his report more credible. Moreover, there is no explanation for
the fact that Major Bascos had to prepare his own separate report when, as he
admitted, he saw Patrolmen Acosta and Pituc already in the scene conducting their
on-the-spot investigation.
We find no reason to disagree with the conclusion of the trial court that it was in fact
the driver of the Pantranco bus No. 1202 who was responsible for the accident. Thus
it is, that the defendant PNEI is liable for the damages caused by its said employee
by virtue of the provisions of the Civil Code. 9
The errors assigned by the petitioner are not strictly errors of law. The fourth and fifth assigned
errors even raise purely factual issues notwithstanding the claim in the fourth that the public
respondent "abused its discretion in disregarding the rule on res gestae." Said fourth assigned error
merely involves the question as to whose testimony and spot report whether that of Patrolman
Acosta or that of Major Basco should be given full faith and credit.
We shall first dispose of these factual issues.
Well-entrenched is the general rule that the jurisdiction of this Court in cases brought before it from
the Court of Appeals is limited to reviewing or revising errors of law; findings of fact of the latter are
conclusive 10 for it is not the function of this Court to analyze or weigh such evidence all over again. It is
only in exceptional cases where this Court may review findings of fact of the Court of Appeals. 11 In the
instant case, both the trial court and the public respondent found that it was the driver of the petitioner's
bus no. 1202 who was responsible for the accident and that Patrolman Acosta is more credible than Major
Basco. Petitioner has not shown to us that such findings and conclusions fall within any of the exceptions
to this rule. As regards the so-called spot report of Major Basco which the petitioner describes to be part
of theres gestae, the petitioner has a misconception of what res gestae is, which, as it should have
known, relates to the admissibility of evidence and not to its weight and sufficiency. In the instant case,
there was no evidence which was offered as part of the res gestae, hence, none could have been denied
admission by the trial court and the public respondent. In any event, if there was one, the petitioner
miserably failed to show or prove the presence of the requisites of res gestae, viz.: (1) that the principal
act be a startling occurrence, (2) that the statements were made before the declarant had time to contrive
or devise, and (3) that the statements must concern the occurrence in question and its immediately
attending circumstances. 12
We shall now resolve the questions of law which are raised in the first to the third assigned errors:
whether or not the public respondent gravely abused its discretion (a) in holding that the lower court

did not err in assuming jurisdiction over the case despite the non-payment of the required docket
fees, (b) in sustaining the award of P300,000.00 for the loss of earning capacity of Benjamin Tandoc,
and (c) in upholding the trial court's award of P80,000.00 for attorney's fees. As to the first, it is not
altogether correct to say that the required docket fees were not paid. There was only a deficiency in
the payment of such. The public respondent ruled as follows:
The records show that the plaintiffs paid a filing fee of P600.00 and a legal research
fee of P30.00, as evidenced by O.R. No. 3711618 and O.R. No. 6035087,
respectively. The defendant-appellant never raised the issue of inadequate filing fees
in the court below. It now invokes the ruling inManchester Development Corporation
vs. Court of Appeals, 149 SCRA 562 where the Supreme Court held that all
complaints, petitions, answers and other similar pleadings should specify the amount
of damages being prayed for, not only in the body of the pleading but also in the
prayer, and said damages shall be considered in the assessment of filing fees in any
case, and that any pleading that fails to comply with this requirement shall not be
accepted or admitted, or shall otherwise be expunged from the records; and that the
court acquires jurisdiction over any case only upon payment of the prescribed docket
fee.
In the case of Sun Insurance Office, Ltd. (SIOL) vs. Asuncion, 170 SCRA 274,
however, the High Court made a more liberal interpretation of the rules, considering
that the private respondent therein demonstrated his willingness to abide by the said
rules by paying the additional docket fees required. When the petitioner in the said
case contended that the fee paid by the respondent was still insufficient, the
Supreme Court stated that the clerk of court and/or his duly authorized docket clerk
or clerk in charge should determine if any amount is due and, thereafter, require the
private respondent to pay the same.
The Supreme Court then said:
3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently the
judgment awards a claim not specified in the pleading, or if specified the same has
been left for determination by the court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or
his duly authorized deputy to enforce said lien and assess and collect the additional
fee.
In the case now before us, we do not find the plaintiffs had the intention of evading
the payment of the required docket fees and, applying the rule in the case
hereinabove cited, we hold that the lower court did not err when it assumed
jurisdiction over the case. 13
The guiding rules laid down by this Court in Sun Insurance Office, Ltd., (SIOL) vs. Asuncion 14 are as
follows:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that vests a trial court with jurisdiction over the
subject-matter or nature of the action. Where a filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims, third-party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee
prescribed therefor is paid. The court may also allow the payment of said fee within a
reasonable time but also in no case beyond its applicable prescriptive or
reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently, the
judgment awards a claim not specified in the pleading, or if specified the same has
been left for determination by the court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or
his duly authorized deputy to enforce said alien and assess and collect the additional
fee.
We further clarified the rules in Tacay vs. Regional Trial Court of Tagum, Davao del Norte: 15
Now, under the Rules of Court, docket and filing fees are assessed on the basis of
the "sum claimed," on the one hand, or the "value of the property in litigation or the
value of the estate," on the other. There are, in other words, as already above
intimated, actions or proceedings involving real property, in which the value of the
property is immaterial to the court's jurisdiction, account thereof being taken merely
for assessment of the legal fees; and there are actions or proceedings, involving
personal property or the recovery of money and/or damages, in which the value of
the property or the amount of the demand is decisive of the trial court's competence
(aside from being the basis for fixing the corresponding docket fees).
Where the action is purely for the recovery of money or damages, the docket fees
are assessed on the basis of the aggregate amount claimed, exclusive only of
interests and costs. In this case, the complaint or similar pleading should, according
to Circular No. 7 of this Court, "specify the amount of damages being prayed for not
only in the body of the pleading but also in the prayer, and said damages shall be
considered in the assessment of the filing fees in any case."
Two situations may arise. One is where the complaint or similar pleading sets out a
claim purely for money or damages and there is no precise statement of the amounts
being claimed. In this event the rule is that the pleading will "not be accepted nor
admitted, or shall otherwise be expunged from the record." In other words, the
complaint or pleading may be dismissed, or the claims as to which the amounts are
unspecified may be expunged, although as aforestated the Court may, on motion,

permit amendment of the complaint and payment of the fees provided the claim has
not in the meantime become time-barred. The other is where the pleading does
specify the amount of every claim, but the fees paid are insufficient; and here again,
the rule now is that the court may allow a reasonable time for the payment of the
prescribed fees, or the balance thereof, and upon such payment, the defect is cured
and the court may properly take cognizance of the action, unless in the meantime
prescription has set in and consequently barred the right of action.
Where the action involves real property and a related claim for damages as well, the
legal fees shall be assessed on the basis of both (a) the value of the property and (b)
the total amount of the related damages sought. The Court acquires jurisdiction over
the action if the filing of the initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of
the time of full payment of the fees within such reasonable time as the court may
grant, unless, of course, prescription has set in the meantime. But where as in the
case at bar the fees prescribed for an action involving real property have been
paid, but the amounts of certain of the related damages (actual, moral and nominal)
being demanded are unspecified, the action may not be dismissed. The Court
undeniably has jurisdiction over the action involving real property, acquiring it upon
the filing of the complaint or similar pleading and payment of the prescribed fee. And
it is not divested of that authority by the circumstance that it may not have acquired
jurisdiction over the accompanying claims for damages because of lack of
specification thereof. What should be done is simply to expunge those claims for
damages as to which no amounts are stated, which is what the respondent Court did,
or allow, on motion, a reasonable time for the amendment of the complaints so as to
allege the precise amount of each item of damages and accept payment of the
requisite fees therefor within the relevant prescriptive period.
In Central Bank of the Philippines vs. Court of Appeals, 16 we held that the prescriptive period
mentioned in the Sun Insurance case:
refers to the period in which a specific action must be filed. It means that in every
case, the docket fee must be paid before the lapse of the prescriptive period.
Chapter 3, Title V, Book III of the Civil Code is the principal law governing
prescription of actions.
Ideally then, the private respondents should have specified the amount of their claims for moral and
exemplary damages and for loss of earning capacity so that the clerk of court of the trial court may
be able to compute the requisite docket fees. However, considering the attendant circumstances in
this case, the pronouncement of the public respondent on the issue of jurisdiction should be
sustained. For one, the complaint in this case was filed on 28 July 1985 or one (1) year, nine (9)
months and fourteen (14) days before the promulgation of the decision inManchester Development
Corporation vs. Court of Appeals. 17 While it is true that in Sun Insurance we declared that
the Manchester ruling applies retrospectively, the fact remains that in the instant case, the last witness for
the plaintiff's evidence in chief testified on 20 August 1986, 18 or long before the Manchester decision was
promulgated, and although the trial court decided this case on 15 December 1989, the petitioner never

raised the issue of jurisdiction arising from the insufficiency of the docket fees paid either in its answer or
in any subsequent pleading. On the contrary, it not only resisted the claims of the plaintiffs but even
invoked the jurisdiction of the trial court in its counterclaims wherein it prayed for judgment ordering the
plaintiffs solidarily:

a) To reimburse to PNEI the amount of P753,548.00 representing advances made by

it as alleged in paragraph 8 of the counterclaim with interest thereon at the rate of
16% p.a. from the date the amounts were advanced until the same is fully
reimbursed;
b) To reimburse to PNEI any amounts which may be advanced in future dates to the
other injured passengers with interest thereon;
c) To pay to PNEI the amount of P101,781.47 representing actual expenses for the
repairs of Bus No. 1122 and Bus No. 1202 and to pay the unearned revenue during
the period when the said busses were under repair;
d) To pay to PNEI attorney's fees of P50,000.00 plus appearance and expenses of
litigation in the amount of P500.00 per hearing. 19
The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with the public
respondent in CA-G.R. CV No. 26220 on 2 February 1991. 20 After vigorously participating in all stages
of the case before the trial court and even invoking the trial court's authority in order to ask for affirmative
relief, the petitioner is effectively barred by estoppel from challenging the trial court's jurisdiction. Although
the issue of jurisdiction may be raised at any stage of the proceedings as the same is conferred by law, it
is nonetheless settled that a party may be barred from raising it on ground of laches or estoppel. 21 The
deficiency in the payment of the docket fees must, however, be considered a lien on the judgment which
must be remitted to the clerk of court of the court a quo upon the execution of the judgment.
Petitioner's contention that the Court of Appeals erred in upholding the award of damages for loss of
earning capacity of Benjamin Tandoc in the amount of P300,000.00 is meritorious. The only possible
basis for such an award is the public respondent's statement, culled from the decision of the trial
court, that, per Tandoc's testimony, he used to earn P3 million annually and that at the time of the
accident, he was about to negotiate a P1.5 million contract with Minister Hipolito which he was
unable to get because he was by then already disabled. 22 However, Tandoc testified that his business
resumed operations after stopping for only about a month. 23 As to the alleged contract he was about to
negotiate with Minister Hipolito, there is no showing that the same has been awarded to him. If Tandoc
was about to negotiate a contract with Minister Hipolito, there was no assurance that the former would get
it or that the latter would award the contract to him since there was the requisite public bidding. The
claimed loss of profit arising out of that alleged contract which was still to be negotiated is a mere
expectancy. Tandoc's claim that he could have earned P2 million in profits is highly speculative, and no
concrete evidence was presented to prove the same. The only unearned income to which Tandoc is
entitled to from the evidence presented is that for the one-month period during which his business was
interrupted, which is P6,125.00, considering that his annual net income was P73,500.00. 24

There is, however, no merit in the petitioner's claim with respect to attorney's fees. While attorney's
fees and expenses of litigation are not recoverable as a matter of right if not stipulated upon, Article
2208 of the Civil Code allows their recovery in specific instances, among which are:
xxx xxx xxx
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to . . . incur
expenses to protect his interest;
xxx xxx xxx
(11) In any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered.
xxx xxx xxx
In the instant case, exemplary damages were awarded by the trial court which the public respondent
sustained. There can as well be no doubt that because of the tortious act of the petitioner, the private
respondents were compelled to incur expenses to protect their interest. Finally, considering the
attendant circumstances in this case, we are of the opinion that justice and equity warrant the
recovery of attorney's fees. However, as directed by the last paragraph of the said Article 2208, "[i]n
all cases, the attorney's fees and expenses of litigation must be reasonable." The award of
P80,000.00 as attorney's fees in the first cause of action (re claim of Benjamin Tandoc) and none in
the second cause of action (re death of Patricio Mamenta) breaches the parameters of
reasonableness. It should be reduced to P25,000.00.
Finally, in accordance with prevailing jurisprudence, the death indemnity of P30,000.00 is increased
to P50,000.00.
WHEREFORE, the instant petition is partly GRANTED and the challenged decision of the Court of
Appeals in CA-G.R. CV No. 26220 is hereby MODIFIED by: (a) reducing the award of damages for
loss of earning capacity of Benjamin Tandoc from P300,000.00 to P6,125.00, (b) reducing the award
for attorney's fees from P80,000.00 to P25,000.00, and (c) increasing the death indemnity to
P50,000.00. In all other respects, the decision is AFFIRMED.
The deficiency in the payment of the docket fees, to be computed by the clerk of court of the trial
court, shall constitute a lien on the judgment.
No pronouncement as to costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.

Republic of the Philippines

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

REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968
when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly
undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that
respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the
creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent
Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her
cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was
shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which
undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a thirdparty complaint against Barte alleging that, under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or
any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of the
accident involving respondent spouses and that it had complied with the terms of its contract with PLDT
by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades
at both ends of the excavation and with red lights at night along the excavated area to warn the traveling
public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal
part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long
Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and

P500.00 as exemplary damages, with legal rate of interest from the date of the filing
of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff
the sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the
defendant-third party plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the
amount of damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in
said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the
lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban
spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. 7 A
copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979,
said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the
Special Ninth Division of the Court of Appeals denied said motion for reconsideration. 10 This resolution
was received by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave
of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a second
motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was received by
private respondents on April 1, 1980 but prior thereto, private respondents had already filed their second
motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion
for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the
second motion for reconsideration, designated two additional justices to form a division of five. 16 On
September 3, 1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa,
setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980,
and affirming in toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the
resolution of September 3, 1980, contending that the second motion for reconsideration of private
respondent spouses was filed out of time and that the decision of September 25, 1979 penned by
Justice Agrava was already final. It further submitted therein that the relationship of Barte and
petitioner PLDT should be viewed in the light of the contract between them and, under the
independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May
11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside and/or
for reconsideration and affirming in toto the decision of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September 25,

1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and
on the additional ground that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records
and admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with
Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for
reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private
respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration
was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private
respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second
motion for reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing
the original decision dated September 25, 1979 and setting aside the resolution
dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself were filed
out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that
a second motion for reconsideration may be presented within fifteen (15) days from notice of the
order or judgment deducting the time in which the first motion has been pending. 20 Private
respondents having filed their first motion for reconsideration on the last day of the reglementary period of
fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said
motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their
receipt on February 22, 1980 of the resolution denying their first motion for reconsideration, private

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

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the
running of which was suspended during the pendency of the first motion for reconsideration, the
Court of Appeals could no longer validly take further proceedings on the merits of the case, much
less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing of the motion for
leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and
the subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary
period to file the same, produced no legal effects. Only a motion for re-hearing or reconsideration
filed in time shall stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a
second motion for reconsideration, is null and void. The period for filing a second motion for
reconsideration had already expired when private respondents sought leave to file the same, and
respondent court no longer had the power to entertain or grant the said motion. The aforesaid
extension of ten (10) days for private respondents to file their second motion for reconsideration was
of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said extension
for filing a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the
same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second
motion for reconsideration and reversing the original decision are null and void and cannot disturb
the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The
decision rendered anew is null and void. 26 The court's inherent power to correct its own errors should be
exercised before the finality of the decision or order sought to be corrected, otherwise litigation will be
endless and no question could be considered finally settled. Although the granting or denial of a motion
for reconsideration involves the exercise of discretion, 27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no
error in the findings of the respondent court in its original decision that the accident which befell
private respondents was due to the lack of diligence of respondent Antonio Esteban and was not
imputable to negligent omission on the part of petitioner PLDT. Such findings were reached after an

exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent
court's resolution of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had
remained on that inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the
jeep swerving from the left that is, swerving from the inside lane. What caused the
swerving is not disclosed; but, as the cause of the accident, defendant cannot be
made liable for the damages suffered by plaintiffs. The accident was not due to the
absence of warning signs, but to the unexplained abrupt swerving of the jeep from
the inside lane. That may explain plaintiff-husband's insistence that he did not see
the ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the
ACCIDENT MOUND could have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already been covered
except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation could have been worse to the
south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND
several feet as indicated by the tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's
would not have been thrown against the windshield and they would not have suffered
their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the
inside lane and for some reason or other it had to swerve suddenly to the right and
had to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised
the diligence of a good father of a family to avoid the accident. With the drizzle, he
should not have run on dim lights, but should have put on his regular lights which
should have made him see the ACCIDENT MOUND in time. If he was running on the
outside lane at 25 kilometers an hour, even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was negligence on his part. The
ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2
feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen
any warning sign either. He knew of the existence and location of the ACCIDENT
MOUND, having seen it many previous times. With ordinary precaution, he should

have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT
MOUND. 29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only
contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the
accident, as one of its determining factors, and thereby precludes their right to recover
damages. 30 The perils of the road were known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose
of said signs was to inform and warn the public of the presence of excavations on the site. The
private respondents already knew of the presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep of respondents to fall into the excavation but
the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the
site of the excavation, constitutes the proximate cause only when the doing of the said omitted act
would have prevented the injury. 31 It is basic that private respondents cannot charge PLDT for their
injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a reasonable degree of caution for his own
protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street,
he passed on that street almost everyday and had knowledge of the presence and location of the
excavations there. It was his negligence that exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that
there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of the
incident and the non-submission of a medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980
(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves,
and such evidence should be very carefully evaluated, with defendant, as the party
being charged, being given the benefit of any doubt. Definitely without ascribing the
same motivation to plaintiffs, another person could have deliberately engineered a
similar accident in the hope and expectation that the Court can grant him substantial
moral and exemplary damages from the big corporation that defendant is. The
statement is made only to stress the disadvantageous position of defendant which
would have extreme difficulty in contesting such person's claim. If there were no
witness or record available from the police department of Bacolod, defendant would

not be able to determine for itself which of the conflicting testimonies of plaintiffs is
correct as to the report or non-report of the accident to the police department. 32
A person claiming damages for the negligence of another has the burden of proving the existence of
such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively
established by competent evidence. 33 Whosoever relies on negligence for his cause of action has the
burden in the first instance of proving the existence of the same if contested, otherwise his action must
fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and
September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September
25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

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

called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump
truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular
driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early
the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left
but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio
suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and
loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident, while under the influence of liquor, without his
headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due
rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and
the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected
income for plaintiff brought about the accident in controversy and which is the result
of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages
for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family since the accident in
controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before
the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified the award of damages to the following
extent:

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

to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was
reduced to P100,000.00,basically because Dionisio had voluntarily
resigned his job such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the accident in
question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence reduced
to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which both
courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver,
and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the record both before the trial
court and the Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his
car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient
cause determinative of the accident and the injuries he sustained. The need to administer
substantial justice as between the parties in this case, without having to remand it back to the trial
court after eleven years, compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear
upon the liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump truck or whether those

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

On the second issue whether or not Dionisio was speeding home that night both the trial court
and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene
of the accident almost immediately after it occurred, the police station where he was based being
barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of
the accident told him that Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per
hour and had just crossed the intersection of General Santos and General Lacuna Streets and had
started to accelerate when his headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag
within any of the recognized exceptions to the hearsay rule since the facts he testified to were not
acquired by him through official information and had not been given by the informants pursuant to
any duty to do so. Private respondent's objection fails to take account of the fact that the testimony
of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but
rather as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule consists
of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as
to render inoperative the normal reflective thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary object
in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time. The testimony of Patrolman
Cuyno was therefore admissible as part of the res gestae and should have been considered by the
trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it
did not, as it could not, have purported to describe quantitatively the precise velocity at winch
Dionisio was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate
Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but
was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut
off his headlights even before he reached the intersection so as not to be detected by the police in
the police precinct which he (being a resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a more credible explanation than that offered
by private respondent Dionisio i.e., that he had his headlights on but that, at the crucial moment,
these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded
in switching his lights on again at "bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati
Medical Center in an unconscious condition. 7 This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We
do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of
liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8There simply is
not enough evidence to show how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of
hard liquor may affect different people differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand
and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and
that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the
accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the distinctions between "cause" and "condition" which
the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and
Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active
"cause" of the harm and the existing "conditions" upon which that cause operated. If
the defendant has created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which have played an important
part in producing the result it is quite impossible to distinguish between active forces
and passive situations, particularly since, as is invariably the case, the latter are the
result of other active forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the gasoline, the condition has
done quite as much to bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape responsibility. Even
the lapse of a considerable time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the highway may still be liable to
another who fans into it a month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must refer to the type of case where
the forces set in operation by the defendant have come to rest in a position of
apparent safety, and some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but the nature of the
risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump truck
and the private respondent's car would in an probability not have occurred had the dump truck not
been parked askew without any warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck driver's negligence and therefore closer to
the accident, was not an efficient intervening or independent cause. What the Petitioners describe as
an "intervening cause" was no more than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the very risk the truck
driver had created. Dionisio's negligence was not of an independent and overpowering nature as to
cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor
and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary
human experience is reasonably to be anticipated or one which the defendant has
reason to anticipate under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard against it; or the
defendant may be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later wig
spread it beyond the defendant's own property, and therefore to take precautions to
prevent that event. The person who leaves the combustible or explosive material

exposed in a public place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with the defendant's
conduct to produce the result and in each case the defendant's negligence consists
in failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a
substantial and important part of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's negligence. The courts are quite
generally agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual
weather of the vicinity, including all ordinary forces of nature such as usual wind or
rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on
the road or a railroad track should foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable
negligence of others. ... [The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional negligence which is one of
the ordinary incidents of human life, and therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved of
responsibility when another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio
had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having
failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine
of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether,
or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to
do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do
not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose

negligence the plaintiff's or the defendant's was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of
the negligent act or omission of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore
his employer) should be absolved from responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid
the peril precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or omission. Our law on quasidelicts seeks to reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of
society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in
our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck
driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to
show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

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

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.
Melencio-Herrera, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners,
vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this
Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV
Nos. 27290-93 1 which reversed the Decision of Branch 5 of the then Court of First Instance (now
Regional Trial Court) of Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin
Chavez jointly and severally liable to the private respondents for actual and moral damages, litigation
expenses and attorney's fees.
This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed
against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private
respondents, sought to recover actual and other damages for the loss of lives and the destruction to
property caused by the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The
flooding was purportedly caused by the negligent release by the defendants of water through the
spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that:
1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at
Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the
incident in question; 3) despite the defendants' knowledge, as early as 24 October 1978, of the impending
entry of typhoon "Kading," they failed to exercise due diligence in monitoring the water level at the dam;
4) 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; and 5) as a
consequence, members of the household of the plaintiffs, together with their animals, drowned, and their
properties were washed away in the evening of 26 October and the early hours of 27 October 1978. 3
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care,
diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC
exercised the diligence of a good father in the selection of its employees; 3) 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 advise them to take the
necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse
of the dam and avoid greater damage to people and property; 5) in spite of the precautions
undertaken and the diligence exercised, they could still not contain or control the flood that resulted
and; 6) 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. By way of special affirmative

defense, the defendants averred that the NPC cannot be sued because it performs a purely
governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a
result thereof, the trial court dismissed the complaints as against the NPC on the ground that the
provision of its charter allowing it to sue and be sued does not contemplate actions based on tort.
The parties do not, however, dispute the fact that this Court overruled the trial court and ordered the
reinstatement of the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and trial thereafter ensued.
The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of
sufficient and credible evidence." 6 Consequently, the private respondents seasonably appealed
therefrom to the respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed
decision and awarded damages in favor of the private respondents. The dispositive portion of the
decision reads:
CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby
REVERSED and SET ASIDE, and a new one is hereby rendered:
1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and
severally, plaintiffs-appellants, with legal interest from the date when this decision
shall become final and executory, the following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two
Hundred Sixty Pesos (P231,260.00);
2) Bienvenido P. Pascual, Two Hundred Four Thousand Five
Hundred Pesos (P204.500.00);
3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos
(P155,000.00);
4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos
(P147,000.00);.
5) Bernardino Cruz, One Hundred Forty Three Thousand Five
Hundred Fifty Two Pesos and Fifty Centavos (P143,552.50);
6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos
(P57,500.00);

7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);

8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00);
and
B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and
severally, plaintiff-appellant, with legal interest from the date when this decision shall
have become final and executory, the following :
A. Actual damages of Five Hundred Twenty Thousand Pesos
(P520,000.00);.
B. Moral damages of five hundred Thousand Pesos (P500,000.00);
and.
C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.
3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and
severally, with legal interest from the date when this decision shall have become final
and executory;
A. Plaintiff-appellant Angel C. Torres:
1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty
Pesos (P199,120.00);
2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);
B. Plaintiff-appellant Norberto Torres:
1) Actual damages of Fifty Thousand Pesos (P50,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:
1) Actual damages of One Hundred Thousand Pesos (P100,000.00);
2) Moral damages of One Hundred Thousand Pesos (P100,000.00);
and
D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);

4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and

severally, with legal interest from the date when this decision shall have become final
and executory :
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:
1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred
Pesos (P256,600.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
B. Plaintiff-appellant Consolacion Guzman :
1) Actual damages of One Hundred forty Thousand Pesos
(P140,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of Two Hundred Five Hundred Twenty Pesos
(205,520.00); and
D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).
In addition, in all the four (4) instant cases, ordering defendants-appellees to pay,
jointly and severally, plaintiffs-appellants attorney fees in an amount equivalent to
15% of the total amount awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's conclusion that the petitioners were
guilty of:
. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in
the management and operation of Angat Dam. The unholiness of the hour, the extent
of the opening of the spillways, And the magnitude of the water released, are all but
products of defendants-appellees' headlessness, slovenliness, and carelessness.
The resulting flash flood and inundation of even areas (sic) one (1) kilometer away
from the Angat River bank would have been avoided had defendants-appellees
prepared the Angat Dam by maintaining in the first place, a water elevation which
would allow room for the expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to wit:

As early as October 21, 1978, defendants-appellees knew of the impending

onslaught of and imminent danger posed by typhoon "Kading". For as alleged by
defendants-appellees themselves, the coming of said super typhoon was bannered
by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as
"Super Howler to hit R.P." The next day, October 26, 1978, said typhoon once again
merited a headline in said newspaper as "Kading's Big Blow expected this afternoon"
(Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees learned of
typhoon "Kading' through radio announcements (Civil Case No. SM-950, TSN,
Benjamin Chavez, December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam can safely hold a normal
maximum headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No.
SM-951, Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247,
Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees maintained a reservoir water
elevation even beyond its maximum and safe level, thereby giving no sufficient
allowance for the reservoir to contain the rain water that will inevitably be brought by
the coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the Philippine area of
responsibility, water elevation ranged from 217.61 to 217.53, with very little opening
of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon
"Kading" entered the Philippine area of responsibility, and public storm signal number
one was hoisted over Bulacan at 10:45 a.m., later raised to number two at 4:45 p.m.,
and then to number three at 10:45 p.m., water elevation ranged from 217.47 to
217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On
October 26, 1978, when public storm signal number three remained hoisted over
Bulacan, the water elevation still remained at its maximum level of 217.00 to 218.00
with very little opening of the spillways ranging from 1/2 to 2 meters, until at or about
midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly to
8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978,
releasing water at the rate of 4,500 cubic meters per second, more or less. On
October 27, 1978, water elevation remained at a range of 218.30 to 217.05 (Civil
Case No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and Exhibits "3"
and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953,
Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F-1").
xxx xxx xxx
From the mass of evidence extant in the record, We are convinced, and so hold that
the flash flood on October 27, 1978, was caused not by rain waters (sic), but by
stored waters (sic) suddenly and simultaneously released from the Angat Dam by
defendants-appellees, particularly from midnight of October 26, 1978 up to the
morning hours of October 27,
1978. 9

The appellate court rejected the petitioners' defense that they had sent "early warning written
notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October
1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full and that we have been
releasing water intermittently for the past several days.
With the coming of typhoon "Rita" (Kading) we expect to release greater (sic) volume
of water, if it pass (sic) over our place.
In view of this kindly advise people residing along Angat River to keep alert and stay
in safe places.
BENJA
MIN L.
CHAVE
Z
Power
Plant
Superin
tendent
10

because:
Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by
defendants-appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN,
Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno,
March 7, 1985, pp. 10-12).
Said notice is ineffectual, insufficient and inadequate for purposes of the opening of
the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did
not prepare or warn the persons so served, for the volume of water to be released,
which turned out to be of such magnitude, that residents near or along the Angat
River, even those one (1) kilometer away, should have been advised to evacuate.
Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a policeman
(Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of
Norzagaray. Said notice was not thus addressed and delivered to the proper and
responsible officials who could have disseminated the warning to the residents
directly affected. As for the municipality of Sta. Maria, where plaintiffs-appellants in
Civil Case No. SM-1246 reside, said notice does not appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the petitioners'
plea that the incident in question was caused by force majeure and that they are, therefore, not liable to

the private respondents for any kind of damage such damage being in the nature of damnum absque
injuria.

The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed
by the public respondents, 13 were denied by the public respondent in its Resolution of 27 December
1991. 14
Petitioners thus filed the instant petition on 21 February 1992.
After the Comment to the petition was filed by the private respondents and the Reply thereto was
filed by the petitioners, We gave due course to the petition on 17 June 1992 and directed the parties
to submit their respective Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly committed by the respondent Court :
I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL &
SONS V. COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE
GUILTY OF NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN
NOTICES OF WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT.
III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE
SUFFERED BY PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE
INJURIA.
IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM
OF PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power
Corporation, et al., vs. Court of Appeals, et al., 17 which this Court decided on 3 July 1992. The said
case involved the very same incident subject of the instant petition. In no uncertain terms, We declared
therein 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, 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. We thus cannot now rule otherwise not only because such a
decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan
on 26-27 October 1978 which resulted in the loss of lives and the destruction to property in both cases,
but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence
adduced 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
defendants-appellees' headlessness, slovenliness, and carelessness." 18 Its findings and conclusions are
biding upon Us, there being no showing of the existence of any of the exceptions to the general rule that
findings of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated, the challenged
decision can stand on its own merits independently of Our decision in G.R. No. 96410. In any event, We

reiterate here in Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 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, We held:

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 unforseeable or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his obligation in a moral manner; and (d)
the debtor must be free from any participation in, or aggravation of the injury to the
creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71
SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon
Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
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).
Thus it has been held that when the negligence of a person concurs with an act of
God in producing a loss, such person is not exempt from liability by showing that the
immediate cause of the damage was the act of God. To be exempt from liability for
loss because of an act of God, he must be free from any previous negligence or
misconduct by which that loss or damage may have been occasioned. (Fish &
Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco
& Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability
for the loss or damage sustained by private respondents since they, the petitioners, were guilty of
negligence. The event then was not occasioned exclusively by an act of God or force majeure; a
human factor negligence or imprudence had intervened. The effect then of the force majeure in
question may be deemed to have, even if only partly, resulted from the participation of man. Thus,
the whole occurrence was thereby humanized, as it were, and removed from the laws applicable to
acts of God.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated
Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the
petitioners.

SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 101683 February 23, 1995

LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO, petitioners,
vs.
HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-OYON,
represented by PATROCENIA GRONDIANO y MONTEROLA, and PATROCENIA GRONDIANO y
MONTEROLA, respondents.

VITUG, J.:
In this petition for review, the application of the doctrines of "proximate cause" and "last clear
chance" is, once again, being put to test. The petition questions the decision of the Court of Appeals,
dated 18 July 1991, which has reversed that of the trial court.
The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15
November 1987. Rogelio Monterola, a licensed driver, was traveling on board his Suzuki motorcycle
towards Mangagoy on the right lane along a dusty national road in Bislig, Surigao del Sur. At about
the same time, a cargo van of the LBC Air Cargo Incorporated, driven by defendant Jaime Tano, Jr.,
was coming from the opposite direction on its way to the Bislig Airport. On board were passengers
Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside Tano. When Tano was
approaching the vicinity of the airport road entrance on his left, he saw two vehicles racing against
each other from the opposite direction. Tano stopped his vehicle and waited for the two racing
vehicles to pass by. The stirred cloud of dust made visibility extremely bad. Instead of waiting for the
dust to settled, Tano started to make a sharp left turn towards the airport road. When he was about
to reach the center of the right lane, the motorcycle driven by Monterola suddenly emerged from the
dust and smashed head-on against the right side of the LBC van. Monterola died from the severe
injuries he sustained.
A criminal case for "homicide thru reckless imprudence" was filed against Tano. A civil suit was
likewise instituted by the heirs of deceased Monterola against Tano, along with Fernando Yu and
LBC Air Cargo Incorporated, for the recovery of damages. The two cases were tried jointly by the
Regional Trial Court, Branch 29, of Surigao del Sur.

On 29 July 1990, the trial court dismissed both cases on the ground that the proximate cause of the
"accident" was the negligence of deceased Rogelio Monterola.
Private respondent appealed the dismissal of the civil case to the Court of Appeals. On 18 July 1991,
the appellate court reversed the court a quo. It held:
WHEREFORE, the judgment appealed from is REVERSED, and another one is
hereby rendered ordering the defendants Jaime Tano and LBC Air Cargo, Inc. to
jointly and severally pay the plaintiff Patrocinia Monterola the following amounts:
To SHERWIN MONTEROLA:
1. Indemnity for the death of
Rogelio Monterola P50,000.00
2. For Moral damages P20,000.00
To PATROCINIA GRONDIANO Y MONTEROLA:
3. Actual Damages P7,361.00
4. Hospitals & Burial Expenses 15,000.00
5. Attorneys' Fees and expenses
of Litigation 10,000.00
Plus the costs.
Actual payment of the aforementioned amounts should however be reduced to
twenty (20%) percent.1
In the instant petition for review, petitioners contend that
1. The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the
driving of his vehicle and in failing to give a signal to approaching vehicles of his
intention to make a left turn.
2. The Court of Appeals erred in not finding that the proximate cause of the accident
was the victim's negligence in the driving of his motorcycle in a very fast speed and
thus hitting the petitioner's cargo van. 2
The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the
detailed analyses made by the Court of Appeals in arriving at its findings is at once apparent. Said
the appellate court:
That visibility was poor when Jaime Tano made a left turn was admitted by the latter.

Q When these two vehicles passed by your parked vehicle, as you

said, there were clouds of dust, did I get you right?
A Yes sir, the road was dusty.
Q So much so that you could no longer see the vehicles from the
opposite direction following these vehicles?
A It is not clear, sir, so I even turned on my left signal and the
headlight.
Q What do you mean by it was not clear, you could not see the
incoming vehicles?
A I could not see because of the cloud of dust.
Q And it was at this juncture, when you were to follow your theory,
when you started your LBC van again and swerved to the left leading
to the Bislig airport?
A I did not enter immediately the airport, I waited the dust to clear a
little before I drove.
xxx xxx xxx
Q In other words when you said that it was slightly clear, you would
like to tell the Honorable Court that you could only clearly see big
vehicles . . . but not small vehicles like a motorcycle?
A I could see clearly big vehicles but not small vehicles like a
motorcycle.
Q Like the motorcycle of Rogelio Monterola?
A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 2630) (p. 15, Appellant's brief).
Tano should not have made a left turn under the conditions admitted by him. Under
the Land Transportation and Traffic Code, the driver of any vehicle upon a highway,
before starting, stopping or turning from a direct line, is called upon to first see that
such movement can be made in safety, and whenever the operation of any other
vehicle approaching may be affected by such movement, shall give a signal plainly
visible to the driver of such other vehicles of the intention to make such movement
(Sec. 44, R.A. 4136, as amended). This means that before a driver turns from a
direct line, in this case to the left, the driver must first see to it that there are no
approaching vehicles and, if there are, to make the turn only if it can be made in

safety, or at the very least give a signal that is plainly visible to the driver of such
other vehicle. Tano did neither in this case, for he recklessly made a left turn even as
visibility was still very poor, and thus failed to see the approaching motorcycle and
warn the latter, of his intention to make a left turn. This is plain and simple
negligence.
In thus making the left turn, he placed his vehicle directly at the path of the
motorcycle which, unaware of Tano's intention to make a left turn, smashed at Tano's
vehicle. It was Tano's negligence that created the risk or the condition of danger that
set into operation the event that led to the smashedup and untimely death of Rogelio
Monterola.
Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in
operating it, not recklessly turned left when visibility was still poor, and instead
observed the direct line of the Land Transportation Code that before doing so, he
should first see to it that such movement can be made in safety, and that whenever
any other vehicle approaching may be affected by such movement, should give a
signal plainly visible to the driver of such other vehicle of the intention to make such
movement.
That Rogelio Monterola was running fast despite poor visibility as evidenced by the
magnitude of the damage to the vehicles is no defense. His negligence would at
most be contributory (Article 2179, N.C.C.). Having negligently created the condition
of danger, defendants may not avoid liability by pointing to the negligence of the
former.
xxx xxx xxx
Tano's proven negligence created a presumption of negligence on the part of his
employer, the LBC Air Cargo Corporation, in supervising its employees properly and
adequately (Phoenix Construction, Inc. vs. Intermediate Appellate Court, supra),
which may only be destroyed by proof of due diligence in the selection and
supervision of his employees to prevent the damage (Article 2180, N.C.C.). No such
defense was interposed by defendants in their answer.
We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy
Branch Office, there being no employer-employee relationship between him and
Jaime Tano who is a driver of the LBC Air Cargo Inc. It was held in Philippine Rabbit
Bus Lines Inc. et al. vs. Phil. American Forwarders,Inc., 63 SCRA 231, that the term
"Manager" in Article 2180 is used in the sense of "employer." Hence, no tortuous or
quasi-delictual liability can be fastened on Fernando Yu as branch manager of LBC
Air Cargo Inc.
Now for the amount of damages. Aside from the indemnity for death which has been
pegged at P50,000.00 (Resolution En Banc, August 30, 1990, cited in People vs.
Sazon, 189 SCRA 700), the evidence disclose that as a result of the accident,

Rogelio Monterola's motorcycle was damaged, the repair cost of which amounted to
P7,361.00 (Exh. E-1), for hospitalization, wake and burial expenses, plaintiff spent
P15,000.00. There is likewise no question that by reason of Rogelio Monterola's
untimely death, his only child 14 years old Sherwin Monterola, suffered mental
anguish, fright, serious anxiety, wounded feelings and moral shock that entitles him
to moral damages which we hereby fix at P20,000.00. Because of defendants'
refusal to indemnify the plaintiff for his father's death, the latter was compelled to
litigate and engage the services of counsel. He is therefore entitled to an additional
amount of P10,000.00 for attorney's fees and expenses of litigation.
Considering, however, the contributory negligence of Rogelio Monterola in driving at
a fast clip despite the fact that the road was dusty, we reduce the aggregate amount
of damages to which the plaintiff is entitled by twenty per cent (Phoenix Construction
Inc. vs. Intermediate Appellate Court,Supra). 3
From every indication, the proximate cause of the accident was the negligence of Tano who, despite
extremely poor visibility, hastily executed a left turn (towards the Bislig airport road entrance) without
first waiting for the dust to settle. It was this negligent act of Tano, which had placed his vehicle (LBC
van) directly on the path of the motorcycle coming from the opposite direction, that almost
instantaneously caused the collision to occur. Simple prudence required him not to attempt to cross
the other lane until after it would have been safe from and clear of any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at times, as
"supervening negligence" or as "discovered peril"). The doctrine, in essence, is to the effect 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 last clear opportunity to avoid the impending harm and failed to do so
is chargeable with the consequences thereof (seePicart vs. Smith, 37 Phil. 809). Stated differently,
the rule would also mean that an antecedent negligence of a person does not preclude the recovery
of damages for supervening negligence of, or bar a defense against the 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 (Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's Lumber and
Hardware vs. Intermediate Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along the lane where he was rightly supposed to be.
The incident occurred in an instant. No appreciable time had elapsed, from the moment Tano
swerved to his left to the actual impact; that could have afforded the victim a last clear opportunity to
avoid the collision.
It is true however, that the deceased was not all that free from negligence in evidently speeding too
closely behind the vehicle he was following. We, therefore, agree with the appellate court that there
indeed was contributory negligence on the victim's part that could warrant a mitigation of petitioners
liability for damages.
WHEREFORE, the appealed decision is AFFIRMED. Costs against petitioners.

SO ORDERED.
Feliciano, Romero, Melo and Francisco, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondentsappellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed
that of the Court of First Instance of Manila dismissing petitioners' second amended complaint
against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo
street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses, including the personal
properties and effects inside them. Their owners, among them petitioners here, sued respondents
Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as
its agent in charge of operation. Negligence on the part of both of them was attributed as the cause
of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report:

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores
was transferring gasoline from a tank truck, plate No. T-5292 into the underground
tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the
gasoline hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the gasoline
was spouting. It burned the truck and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the installation of
a coca-cola and cigarette stand, the complainants furnished this Office a copy of a
photograph taken during the fire and which is submitted herewith. it appears in this picture
that there are in the premises a coca-cola cooler and a rack which according to information
gathered in the neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with respect to
the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for
Salvador Capacillo," the latter was presented as witness but respondents waived their right to crossexamine him although they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule
130.
The first contention is not borne out by the record. The transcript of the hearing of September 17,
1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were objected to
by counsel for each of respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and
X-6 were admitted without objection; the admission of the others, including the disputed ones,
carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined
and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta).
All he said was that he was one of those who investigated "the location of the fire and, if possible,
gather witnesses as to the occurrence, and that he brought the report with him. There was nothing,
therefore, on which he need be cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And even if he had testified, his testimony

would still have been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries
in official records made in the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made
by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by
the public officer in the performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been acquired by him personally or through
official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material
facts recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station
were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren,
who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify
their statements as "official information" acquired by the officers who prepared the reports, the
persons who made the statements not only must have personal knowledge of the facts stated but
must have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein
were not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine
of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial
court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as
to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules
do not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical
use for such doctrine." The question deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and
Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of
Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna,

with clear weather and without any wind blowing, an electric transmission wire, installed and
maintained by the defendant Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground. The electric charge coursed through
his body and caused extensive and serious multiple burns from skull to legs, leaving the
bone exposed in some parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine of res
ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on
its defense. While it is the rule, as contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it is also a recognized
principal that "where the thing which caused injury, without fault of the injured person, is
under the exclusive control of the defendant and the injury is such as in the ordinary course
of things does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from defendant's want of
care."
And the burden of evidence is shifted to him to establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is
known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be
on the highway, and the electric wire was under the sole control of defendant company. In
the ordinary course of events, electric wires do not part suddenly in fair weather and injure
people, unless they are subjected to unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2
H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is admittedly not present),
the fact that the wire snapped suffices to raise a reasonable presumption of negligence in its
installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there
are any facts inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res
ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of
which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it
arises almost invariably from some act of man. A case strikingly similar to the one before Us is Jones
vs. Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to
his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the
testimony failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a
Writ of Review which was granted, and the case is now before us for decision.
1wph1.t

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

Plaintiff's petition contains two distinct charges of negligence one relating to the cause of
the fire and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the control of
the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
attached to the filling station while it was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated by the agents or employees of the
defendant, extended to the hose and tank truck, and was communicated from the burning
hose, tank truck, and escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to
explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary course
of things does not happen if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the
courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been
applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v.
Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505;

Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So.
599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons who knew or could have
known how the fire started were appellees and their employees, but they gave no explanation
thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want
of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1
Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of
occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district near the Obrero Market, a
railroad crossing and very thickly populated neighborhood where a great number of people
mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used
by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this already small but crowded gasoline
station.
The foregoing report, having been submitted by a police officer in the performance of his duties on
the basis of his own personal observation of the facts reported, may properly be considered as an
exception to the hearsay rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent
measures of caution than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of Leandro

Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone
and without assistance, was transferring the contents thereof into the underground storage when the
fire broke out. He said: "Before loading the underground tank there were no people, but while the
loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which
is about a meter from the hole leading to the underground tank." He added that when the tank was
almost filled he went to the tank truck to close the valve, and while he had his back turned to the
"manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the neighboring
houses.
There is an admission on the part of Boquiren in his amended answer to the second amended
complaint that "the fire was caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced, but assuming the allegation
to be true certainly any unfavorable inference from the admission may be taken against Boquiren
it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable here. "It is the rule
that those who distribute a dangerous article or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger involved ... we think it is the generally accepted
rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor
in bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts,
vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected
cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et
al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This
issue depends on whether Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of law
and hence may be passed upon by this Court. These facts are: (1) Boquiren made an admission that
he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the
equipment therein; (3) Caltex exercised control over Boquiren in the management of the state; (4)
the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it;
and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license
fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of
his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one

there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among
the changes was one to the effect that he was not acting as agent of Caltex. But then again, in his
motion to dismiss appellants' second amended complaint the ground alleged was that it stated no
cause of action since under the allegations thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be
an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the
business conducted at the service station in question was owned and operated by Boquiren. But
Caltex did not present any contract with Boquiren that would reveal the nature of their relationship at
the time of the fire. There must have been one in existence at that time. Instead, what was
presented was a license agreement manifestly tailored for purposes of this case, since it was
entered into shortly before the expiration of the one-year period it was intended to operate. This socalled license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective
as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity
provision is quite significant, and gives rise to the conclusion that it was designed precisely to free
Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not
be liable for any injury to person or property while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of
LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of
P1.00 for the use of the premises and all the equipment therein. He could sell only Caltex Products.
Maintenance of the station and its equipment was subject to the approval, in other words control, of
Caltex. Boquiren could not assign or transfer his rights as licensee without the consent of Caltex.
The license agreement was supposed to be from January 1, 1948 to December 31, 1948, and
thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time
cancel and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex. Termination of the contract was
therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show
the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an
employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the
latter could remove him or terminate his services at will; that the service station belonged to
the company and bore its tradename and the operator sold only the products of the
company; that the equipment used by the operator belonged to the company and were just
loaned to the operator and the company took charge of their repair and maintenance; that an
employee of the company supervised the operator and conducted periodic inspection of the
company's gasoline and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts signed by the
operator indicated that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent contractor should not be
disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what they
really had intended to enter into, but the way the contracting parties do or perform their
respective obligations stipulated or agreed upon may be shown and inquired into, and should
such performance conflict with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain
the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash
invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither was
there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the loss took place. However,
regardless of the silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00,
disregarding the testimony of one of the Ong children that said property was worth P4,000.00. We
agree that the court erred, since it is of common knowledge that the assessment for taxation
purposes is not an accurate gauge of fair market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00,
respectively, with interest from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-52732 August 29, 1988
F.F. CRUZ and CO., INC., petitioner,
vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE
MABLE and children DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME,
ANTONIO, and BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.

CORTES, J.:
This petition to review the decision of the Court of Appeals puts in issue the application of the
common law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the
residence of private respondents. Sometime in August 1971, private respondent Gregorio Mable first
approached Eric Cruz, petitioner's plant manager, to request that a firewall be constructed between
the shop and private respondents' residence. The request was repeated several times but they fell
on deaf ears. In the early morning of September 6, 1974, fire broke out in petitioner's shop.
Petitioner's employees, who slept in the shop premises, tried to put out the fire, but their efforts
proved futile. The fire spread to private respondents' house. Both the shop and the house were
razed to the ground. The cause of the conflagration was never discovered. The National Bureau of
Investigation found specimens from the burned structures negative for the presence of inflammable
substances.
Subsequently, private respondents collected P35,000.00 on the insurance on their house and the
contents thereof.
On January 23, 1975, private respondents filed an action for damages against petitioner, praying for
a judgment in their favor awarding P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and costs. The Court of First
Instance held for private respondents:

WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against
the defendant:
1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for
damages suffered by said plaintiffs for the loss of their house, with interest of 6%
from the date of the filing of the Complaint on January 23, 1975, until fully paid;
2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss
of plaintiffs' furnitures, religious images, silverwares, chinawares, jewelries, books,
kitchen utensils, clothing and other valuables, with interest of 6% from date of the
filing of the Complaint on January 23, 1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral
damages, P2,000.00 as exemplary damages, and P5,000.00 as and by way of
attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo,
pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed. The
damages to be awarded to plaintiff should be reduced to P70,000.00 for the house
and P50,000.00 for the furniture and other fixtures with legal interest from the date of
the filing of the complaint until full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated
February 18, 1980. Hence, petitioner filed the instant petition for review on February 22, 1980. After
the comment and reply were filed, the Court resolved to deny the petition for lack of merit on June
11, 1980.
However, petitioner filed a motion for reconsideration, which was granted, and the petition was given
due course on September 12, 1980. After the parties filed their memoranda, the case was submitted
for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on
their house, from the award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.

The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the
issue of damages being merely consequential. In view thereof, the errors assigned by petitioner shall
be discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may
be stated as follows:
Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of care. [Africa v.
Caltex (Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank
truck was being unloaded into an underground storage tank through a hose and the fire spread to
and burned neighboring houses, this Court, applying the doctrine of res ipsa loquitur, adjudged
Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine, considering that in the normal
course of operations of a furniture manufacturing shop, combustible material such as wood chips,
sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon.
It must also be noted that negligence or want of care on the part of petitioner or its employees was
not merely presumed. The Court of Appeals found that petitioner failed to construct a firewall
between its shop and the residence of private respondents as required by a city ordinance; that the
fire could have been caused by a heated motor or a lit cigarette; that gasoline and alcohol were used
and stored in the shop; and that workers sometimes smoked inside the shop [CA Decision, p. 5;
Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in
accordance with city ordinances would suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the neighboring houses were it
not for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumble and
melt when subjected to intense heat. Defendant's negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the
neighboring houses. [Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of negligence since it had
failed to construct a firewall between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance

providing for safety regulations had been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss
sustained by private respondents.
2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such
finding by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v.
Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so when there is no
showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of
private respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00). With
regard to the house, the Court of Appeals reduced the award to P70,000.00 from P80,000.00. Such
cannot be categorized as arbitrary considering that the evidence shows that the house was built in
1951 for P40,000.00 and, according to private respondents, its reconstruction would cost
P246,000.00. Considering the appreciation in value of real estate and the diminution of the real
value of the peso, the valuation of the house at P70,000.00 at the time it was razed cannot be said
to be excessive.
3. While this Court finds that petitioner is liable for damages to private respondents as found by the
Court of Appeals, the fact that private respondents have been indemnified by their insurer in the
amount of P35,000.00 for the damage caused to their house and its contents has not escaped the
attention of the Court. Hence, the Court holds that in accordance with Article 2207 of the Civil Code
the amount of P35,000.00 should be deducted from the amount awarded as damages. Said article
provides:
Art. 2207. If the plaintiffs property has been insured, and he has received indemnity
from the insurance company for the injury or loss arising out of the wrong or breach
of contract complained of, the insurance company is subrogated to the rights of the
insured against the wrongdoer or the person who violated the contract. If the amount
paid by the insurance company does not fully cover the injury or loss, the aggrieved
party shall be entitled to recover the deficiency from the person causing the loss or
injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified by their insurer, private
respondents are only entitled to recover the deficiency from petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it
indemnified private respondents from petitioner. This is the essence of its right to be subrogated to
the rights of the insured, as expressly provided in Article 2207. Upon payment of the loss incurred by
the insured, the insurer is entitled to be subrogated pro tanto to any right of action which the insured
may have against the third person whose negligence or wrongful act caused the loss [Fireman's
Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]

Under Article 2207, the real party in interest with regard to the indemnity received by the insured is
the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the
insurer should exercise the rights of the insured to which it had been subrogated lies solely within
the former's sound discretion. Since the insurer is not a party to the case, its identity is not of record
and no claim is made on its behalf, the private respondent's insurer has to claim his right to
reimbursement of the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED
with the following modifications as to the damages awarded for the loss of private respondents'
house, considering their receipt of P35,000.00 from their insurer: (1) the damages awarded for the
loss of the house is reduced to P35,000.00; and (2) the right of the insurer to subrogation and thus
seek reimbursement from petitioner for the P35,000.00 it had paid private respondents is
recognized.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a
breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of
Hammurabi 1 then already provided: "If a physician make a deep incision upon a man with his bronze
lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and
destroy the man's eyes, they shall cut off his hand." 2 Subsequently, Hippocrates 3 wrote what was to
become part of the healer's oath: "I will follow that method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and
mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but should I trespass and violate this oath, may the

reverse be my lot." At present, the primary objective of the medical profession if the preservation of life
and maintenance of the health of the people. 4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life
of his patient, he must be made to answer therefor. Although society today cannot and will not
tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would
show, let the act go uncondemned.
The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No.
30851, which reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court
(RTC) of Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital,
Dumaguete City from January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who 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, with the assistance of Dr. Doris
Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed a simple caesarean
section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that
morning. Thereafter, Plaintiff remained confined at the Hospital until September 27,
1988 during which period of confinement she was regularly visited by Dr. Batiquin.
On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that
same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00
as "professional fee". . . .
Soon 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. . .
which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on
October 31, 1988. . . certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas
returned to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end
despite the medications administered by Dr. Batiquin. When the pains became

unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at
the Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas
at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be
feverish, pale and was breathing fast. Upon examination she felt an abdominal mass
one finger below the umbilicus which she suspected to be either a tumor of the
uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her
abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest
that Mrs. Villegas submit to another surgery to which the latter agreed.
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 [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a "foreign body" looked like a
piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could
have been a torn section of a surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on
September 21, 1988. 7
The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not
presented in court, and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu
City for examination, 8 it was not mentioned in the pathologist's Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical
Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's
Discharge Summary. 14 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. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents
were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of
them to express her agreement thereto. . . ." 15 The trial court also refused to give weight to Dr. Kho's
testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge"
thereof, 16 as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know
where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho
regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it
away." 18 This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to
conclude:

There are now two different versions on the whereabouts of that offending "rubber"
(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 serve only to weaken their claim
against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the
private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely
establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court
of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of
evidence. The trial court itself had narrated what happened to appellant Flotilde after
the caesarean operation made by appellee doctor. . . . After the second operation,
appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused
by the infection due to the "rubber" that was left inside her abdomen. Both appellant;
testified that after the operation made by appellee doctor, they did not go to any other
doctor until they finally decided to see another doctor in January, 1989 when she was
not getting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided when to close the
operating area; that she examined the portion she operated on before closing the
same. . . Had she exercised due diligence, appellee Dr. Batiquin would have found
the rubber and removed it before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's
fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life.
For the miseries appellants endured for more than three (3) months, due to the
negligence of appellee Dr. Batiquin they are entitled to moral damages in the amount
of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's
fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and
ovaries were removed by Dr. Kho is not taken into consideration as it is not shown
that the removal of said organs were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is that the rubber left by appellee
caused infection, placed the life of appellant Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is

REVERSED and SET ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and
for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for
exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of
litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave
credence to testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact, which were not
proper for review by this Court.
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. 22
After deciphering the cryptic petition, we find that the focal point of the instant appeal is the
appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals
misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case
this would turn out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know whe
re the rubber was. It was not in the Lab, it was not in
Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's
knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other
hand, concluded that the underscored phrase was taken out of context by the trial court.
According to the Court of Appeals, the trial court should have likewise considered the other
portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge

inside the abdomen, there was an ovarian cyst on the left and side
and there was also an ovarian cyst on the right which, on opening up
or freeing it up from the uterus, turned out to be pus. Both ovaries
turned out. . . to have pus. And then, cleaning up the uterus, at the
back of the uterus it was very dirty, it was full of pus. And there was a
[piece of] rubber, we found a [piece of] rubber on the right
side. 24
We agree with the Court of Appeals. 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's abdomen, and that she sent it
to a laboratory and then to Cebu City for examination by a pathologist. 25 Not even the Pathologist's
Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. 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:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr.
Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign
body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay,
Dr. Batiquin's claim was not objected to, and hence, the same is admissible 27 but it carries no
probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that
Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City,
we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent
Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with
respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said
that even when a witness is found to have deliberately falsified in some material particulars, it is not
required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed
worthy of belief may be credited. 29
It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's
testimony: that no rubber drain was used in the operation, 30 and that there was neither any tear on Dr.
Batiquin's gloves after the operation nor blood smears on her hands upon removing her
gloves. 31 Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr.
Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Wellsettled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the
petitioners advocate, such positive testimony must come from a credible source, which leads us to the
second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a
regarding 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. 34 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 our appraisal of
Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her
findings, but it can also be said that she did not take the most appropriate precaution
to preserve that "piece of rubber" as an eloquent evidence of what she would reveal
should there be a "legal problem" which she claim[s] to have anticipated. 35
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a
piece of rubber was indeed found in private respondent Villega's abdomen] prevails over the
negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the
nature and operation of this doctrine:
This doctrine [res ipsa loquitur] 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 in 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." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption
or inference that defendant was negligent, which arises upon proof
that [the] instrumentality causing injury was in defendant's exclusive
control, and that the accident was one which ordinary does not
happen in absence of negligence. Res ipsa loquitur is [a] rule of
evidence whereby negligence of [the] alleged wrongdoer may be
inferred from [the] mere fact that [the] accident happened provided
[the] character of [the] accident and circumstances attending it lead
reasonably to belief that in [the] absence of negligence it would not
have occurred and that thing which caused injury is shown to have
been under [the] management and control of [the] alleged wrongdoer.
. . . Under [this] doctrine
. . . the happening of an injury permits an inference of negligence
where plaintiff produces substantial evidence that [the] injury was
caused by an agency or instrumentality under [the] exclusive control
and management of defendant, and that the occurrence [sic] was
such that in the ordinary course of things would not happen if
reasonable care had been used.
xxx xxx xxx

The doctrine of [r]es 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 rule, when applicable to the facts and circumstances of a
particular case, is not intended to and does not dispense with the
requirement of proof of culpable negligence on the party charged. It
merely determines and regulates what shall beprima 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. 36
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire
proceedings of the caesarean 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's body, which, needless to say,
does not occur unless through the intersection of negligence. Second, since aside from the
caesarean 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 caesarean 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's abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical profession plays in
the lives of the people, 37 and the State's compelling interest to enact measures to protect the public
from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma." 38 Indeed, a physician is bound to serve the interest of his
patients "with the greatest of solicitude, giving them always his best talent and skill." 39 Through her
tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal standards set forth for professionals, in general, 40 and
members of the medical profession, 41 in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No.
30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 45985 May 18, 1990

CHINA AIR LINES, LTD., petitioner,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU,respondents.
G.R. No. 46036 May 18, 1990
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R. No. 46036.
Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:
These consolidated petitions seek the review of the decision of respondent court in CA-G.R. No.
53023-R entitled "Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and Roberto
Espiritu, Defendants-Appellants; China Air Lines, Ltd., Defendant-Appellee," 1 the dispositive portion
of which declares:
WHEREFORE, except for a modification of the judgment in the sense that the award
of P20,000.00 in favor of the plaintiff shall be in the concept of nominal damages
instead of exemplary damages, and that defendant China Air Lines, Ltd. shall
likewise be liable with its two co-defendants in a joint and solidary capacity, the
judgment appealed from is hereby affirmed in all other respects, without costs. 2
The challenged decision of respondent court contains a synthesis of the facts that spawned these
cases and the judgment of the court a quo which it affirmed with modifications, thus:
On June 4, 1968, plaintiff Jose E. Pagsibigan, then Vice-President and General
Manager of Rentokil (Phils.) Inc., a local firm dealing in insecticides, pesticides and
related services appurtenant thereto, purchased a plane ticket for a Manila-TaipeiHongkong-Manila flight from the Transaire Travel Agency. The said agency, through
its Cecille Baron, contacted the Manila Hotel branch of defendant Philippine Air Lines

which at that time was a sales and ticketing agent of defendant China Air lines. On
June 6, 1968, PAL, through its ticketing clerk defendant Roberto Espiritu, cut and
issued PAL Ticket No. 01 7991 for a Manila-Taipei-Hongkong-Manila flight. According
to the plane ticket, the plaintiff was booked on CAL CI Flight No. 812 to depart from
Manila for Taipei on June 10, 1968 at 17:20 hours (5:20 p.m.), Exhibit A.
On June 10, 1968, one hour before the scheduled time of the flight as stated in his
ticket, the plaintiff arrived at the airport to check in for CI Flight No. 812. Upon
arriving at the airport, the plaintiff was informed that the plane he was supposed to
take for Taipei had left at 10:20 in the morning of that day. The PAL employees at the
airport made appropriate arrangements for the plaintiff to take PAL's flight to Taipei
the following day, June 11, 1968. The plaintiff took said flight and arrived in Taipei
around noontime of the said date.
On July 8, 1968, the plaintiff, through counsel, made formal demand on defendant
PAL, for moral damages in not less than P125,000.00 for what the plaintiff allegedly
suffered as a result of his failure to take the flight as stated in his plane ticket. (Exhibit
E) After a series of negotiations among the plaintiff, PAL and CAL failed to reach an
amicable settlement, the plaintiff instituted this action in the Court of First Instance of
Rizal on September 22, 1969. In his complaint, plaintiff prays for the recovery of
P125,000.00 as moral damages and P25,000.00 for and as attorney's fees. The
moral damages allegedly arose from the gross negligence of defendant Roberto
Espiritu in stating on the plane ticket that the time of departure was 17:20 hours,
instead of 10:20 hours which was the correct time of departure in the revised
summer schedule of CAL. Plaintiff claims that by reason of his failure to take the
plane, he suffered besmirched reputation, embarrassment, mental anguish, wounded
feelings and sleepless nights, inasmuch as when he went to the airport, he was
accompanied by his business associates, close friends and relatives. He further
averred that his trip to Taipei was for the purpose of conferring with a certain Peng
Siong Lim, President of the Union Taiwan Chemical Corporation, scheduled at 9:00
a.m. on June 11, 1968.
Defendant Philippine Air Lines alleged in its answer that the departure time indicated
by Espiritu in the ticket was furnished and confirmed by the reservation office of
defendant China Air Lines. It further averred that CAL had not informed PAL's Manila
Hotel Branch of the revised schedule of its flight, nor provided it with revised
timetable; that when the travel agency sought to purchase the ticket for the plaintiff
on CAL CI Flight No. 812 for June 10, 1968, Espiritu who was then the ticketing clerk
on duty, checked with the reservation office of CAL on the availability of space, the
date and the time of said flight; that CAL's Dory Chan informed Espiritu that the
departure time of Flight No. 812 on June 10, 1968 was at 5:20 in the afternoon of
said date. PAL asserted a cross-claim against CAL for attorney's fees and for
reimbursement of whatever amount the court may adjudge PAL to be liable to the
plaintiff. Defendant Espiritu adopted the defenses of his co-defendant PAL.

Defendant China Air Lines, for its part, disclaims liability for the negligence and
incompetence of the employees of PAL. It avers that it had revised its schedule since
April 1, 1968, the same to be effective on April 20, 1968, and the said revised
schedule was adopted only after proper petition with and approval of the Civil
Aeronautics Board of which all airlines, including defendant PAL, were notified; that
both printed copies of the international timetable and of the mimeographed notices of
the official schedule and flight departure schedules were distributed to all its sales
agents, including PAL, that after the effectivity of the new time schedules, PAL's
Manila Hotel office had been issuing and selling tickets based on the revised time
schedule; and that, assuming that the plaintiff is entitled to recover damages, the
liability is on PAL and not on CAL. A cross-claim was likewise asserted by CAL
against its co-defendant PAL.
After due trial, the Court a quo rendered judgment laying the blame for the erroneous
entry in the ticket as to the time of departure to defendant Roberto Espiritu, ticketing
agent of defendant PAL, and that no employee of CAL contributed to such erroneous
entry. It was further ruled that the plaintiff had no reason to claim moral damages but
may be entitled to recover exemplary damages. The dispositive portion of the
decision makes the following adjudication:
WHEREFORE, premises considered, judgment is hereby rendered
sentencing the defendants Philippine Air Lines, Inc. and Roberto
Espiritu, to pay to plaintiff Jose Pagsibigan jointly and severally, by
way of exemplary damages, the sum of Twenty Thousand Pesos
(P20,000.00) plus Two Thousand Pesos (P2,000.00) as
reimbursement for attorney's fees and the costs.
The complaint is dismissed with respect to the defendant China Air
Lines, Ltd. The cross-claim filed by defendant PAL and Espiritu
against defendant CAL as well as the cross-claim filed by the
defendant CAL against defendant PAL and Espiritu are also hereby
dismissed. 3
From said decision of the court below, all the parties, except China Air Lines, Ltd. appealed to
respondent court which, however, sustained the ruling of the trial court denying Pagsibigan's claim
for moral damages. It concluded that Roberto Espiritu did not act with malice or in bad faith in
making a wrong entry of the time of departure on the ticket, and that the mistake committed by
Espiritu appears to be an honest one done in good faith.
Respondent court also ruled out the claim for exemplary damages for lack of legal basis.
Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal damages, under Article
2221 of the Civil Code, for the vindication of a legal wrong committed against him. As regards the
liability of the parties, respondent court held:
There can be little question as to the liability of PAL and Espiritu for the damage
caused to the plaintiff due to the erroneous entry in the plane ticket made by the

latter. They seek to justify the erroneous statement as to the time of departure on the
ground that such was the time given by Dory Chan to Espiritu when the latter called
up for the reservation in favor of plaintiff. Aside from the fact that Dory Chan had
vigorously disclaimed having given such information to Espiritu, We are convinced
that, as the trial court had found, CAL had no share in the error committed by Espiritu
in indicating the time of departure of Flight No. 812. PAL had shown through the
testimony of Carmen Ibazeta Gallaga, ticket representative of PAL at the Manila
Hotel Office, that they received circulars and timetables of airlines in the PAL main
office. It further appears that on two occasions, defendant PAL cut and issued tickets
for CAL based on the new schedule even before June 10, 1968. As a matter of fact,
the other entries of time departures in the ticket issued to the plaintiff are in
accordance with the revised schedule, and that the only error therein was with
respect to the departure from Manila on June 10, 1968.
However, in proving that the fault lied with Espiritu, defendant CAL derives no solace
nor gains an advantage. It may not claim exemption from liability by reason thereof.
Espiritu was an employee of PAL and whatever negligence was committed by him is
attributable to PAL. It is an admitted fact that PAL is an authorized agent of CAL. In
this relationship, the responsibility of defendant PAL for the tortious act of its agent or
representative is inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our Civil Code in its Art. 2180 . . . . Unlike in the
doctrine ofrespondeat superior, however, the Civil Code permits the employer to
escape this liability upon proof of having observed all the diligence of a good father of
a family to prevent the damage. We find the evidence of defendant CAL to be
insufficient to overcome the presumption of negligence on its part for the act done by
defendant Roberto Espiritu. (Emphasis supplied)
The liability for the damage sustained by the plaintiff should, therefore, be borne by
all of the defendants in a joint and solidary capacity (Art. 2194). The liability of an
employer under Art. 2180 is primary and direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as employer or principal, did not contribute to the
negligence committed by defendants PAL and Roberto Espiritu, its liability to the
plaintiff could be passed on to said defendants. Defendant CAL, however, did not
take an appeal and did not, therefore, take exception to the dismissal of its crossclaim against defendants PAL and Espiritu. This serves as an obstacle for a rendition
of judgment favorable to CAL on its said counterclaim. 4
In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines, Ltd. (CAL) relied
on the following grounds:

1. A principal cannot be held liable, much less solidarily, for the negligence of the
sub-agent, where the former never participated in, ratified or authorized the latter's
act or omission.
2. Dismissal of the cross-claim of petitioner against the private respondents
Philippine Air Lines, Inc. and Roberto Espiritu will not prevent the release of the
petitioner from liability to the private respondent Pagsibigan.
3. The award of damages was unwarranted both legally and factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made the following
submissions in G.R. No. L-46036, to wit:
1. The respondent Court of Appeals erred in not holding that respondent China Air
Lines, Ltd., being the principal, is solely liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding respondent Pagsibigan the
sum of P20,000.00 as nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that CAL's liability is
based on breach of contract of transportation which was the proximate result of the negligence
and/or error committed by PAL and Espiritu; that even assuming that CAL has no share in the
negligence of PAL and Espiritu, the liability of CAL does not cease upon proof that it exercised all the
diligence of a good father of a family in the selection and supervision of its employees. Traversing
such contentions, CAL argues that it can not be made liable under Article 2180 of the Civil Code
because of the absence of employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is liable under
Article 1909 of the said code which holds an agent responsible not only for fraud but also for
negligence which shall be judged with more or less rigor by the courts, according to whether the
agency was or was not for a compensation. PAL, however, maintains that for lack of privity with
Pagsibigan, the suit for breach of contract should have been directed against CAL.
What surfaces as a procedural maneuver taken by respondent Pagsibigan in the course of the
proceedings in these cases has confused the real issues in the controversy subject of both petitions
before us.
Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the same time, that
is, to enforce the civil liability of CAL for breach of contract and, likewise, to recover from PAL and
Espiritu for tort or culpa aquiliana. What he has overlooked is the proscription against double
recovery under Article 2177 of the Civil Code which, while not preventing recourse to any
appropriate remedy, prevents double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies, the true nature of the action
instituted by respondent Pagsibigan must be determined. A careful perusal of the complaint of

respondent Pagsibigan will readily disclose that the allegations thereof clearly and unmistakably
make out a case for a quasi-delict in this wise:
4. That at all pertinent times particularly in June of 1968, defendant China Air Lines
Ltd. has been operating regular scheduled flights to and from Manila, and has offered
accommodations thereon through, among others, defendant PAL as its authorized
sales agent and/or ticketing agent, such that China Airlines Ltd. is here impleaded as
being the principal of defendant PAL;
5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu
has been in the employ of defendant PAL at its sales counter at the PAL Manila Hotel
branch office and is here impleaded as defendant as being the proximate malfeasor
in this cause of action;
xxx xxx xxx
12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968,
as set forth in his ticket (Annex "A") solely and exclusively by reason of gross
incompetence and inexcusable negligence amounting to bad faith of defendant PAL
acting, through its sales representative, the defendant Roberto Espiritu, of its
Manila Hotel branch office in the discharge of its duties as sales agent and/or
ticketing agent for defendant China Airlines Ltd. as principal.
13. That as a direct result of culpable incompetence and negligence of defendant
Roberto Espiritu as sales representative of defendant PAL, plaintiff was unable to
attend to previously scheduled business commitments in Taipei . . . resulting in direct
and indirect prejudice to plaintiff that has yet to be fully assessed; (Emphasis
supplied) 7
xxx xxx xxx

Had the intention of respondent Pagsibigan been to maintain an action based on breach of contract
of carriage, he could have sued CAL alone considering that PAL is not a real party to the contract.
Moreover, in cases of such nature, the aggrieved party does not have to prove that the common
carrier was at fault or was negligent. All he has to prove is the existence of the contract and the fact
of its non-performance by the carrier. 8
The records disclose that the trial court delved much into the issues of who was at fault, and its
decision is primarily anchored on its factual findings regarding the civil liability arising from culpa
aquiliana of the erring party, to this effect:
Plaintiff said that the erroneous entry in his ticket which made it appear that his CAL
flight of June 10, 1968 was to be at 5:20 in the afternoon was due to the fault or
negligence of PAL's Roberto Espiritu, a co-defendant herein, as well as the
employees of the defendant CAL. In making CAL co-responsible, plaintiff appears to

rely on the doctrine that the principal is responsible for the act of an agent done
within the scope of the agency.
There is no proof extant that any of the employees of PAL had contributed to the
erroneous entry in plaintiffs PAL ticket for Taipei which placed his time of departure to
5:20 o'clock in the afternoon of June 10, 1968. Only defendant Roberto Espiritu
appears to be solely and exclusively responsible for such error and therefor the
conclusion becomes inevitable that CAL must be absolved from any blame because
defendant Roberto Espiritu who committed the error is not an employee or agent of
the defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold CAL
liable on aquasi-delict, decided on appeal to instead make a sinistral detour, so to speak, by claiming
that his action against CAL is based on a breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to the
adverse party who would have no more opportunity to present further evidence, material to the new
theory, which it could have done had it been aware earlier of the new theory at the time of the
hearing before the trial court. 10
There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As
hereinbefore stated, the court a quo absolved CAL of any liability for fault or negligence. This finding
was shared by respondent court when it concluded that defendant CAL did not contribute to the
negligence committed by therein defendants-appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in
the selection and supervision of its employees. This argument is obviously misplaced. CAL is not the
employer of PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., 11 we have stressed the
need of first establishing the existence of an employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely an
agent of CAL and that the suit should have been directed against CAL alone. There is no question
that the contractual relation between both airlines is one of agency. Suffice it to say, however, that in
an action premised on the employee's negligence, whereby respondent Pagsibigan seeks recovery
for the resulting damages from both PAL and Espiritu without qualification, what is sought to be
imposed is the direct and primary liability of PAL as an employer under said Article 2180.
When an injury is caused by the negligence of an employee, there instantly arises a presumption of
law that there was negligence on the part of the employer either in the selection of the employee or
in the supervision over him after such selection. The presumption, however, may be rebutted by a
clear showing on the part of the employer that it has exercised the care and diligence of a good
father of a family in the selection and supervision of his employee. 12
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that PAL
must adduce sufficient proof that it exercised such degree of care. PAL failed to overcome the

presumption. As found by respondent court, CAL had revised its schedule of flights since April 1,
1968; that after the Civil Aeronautics Board had approved the revised schedule of flights, PAL was
duly informed thereof and, in fact, PAL's Manila Hotel branch office had been issuing and selling
tickets based on the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general proposition, an agent who duly acts as
such is not personally liable to third persons. However, there are admitted exceptions, as in this case
where the agent is being sued for damages arising from a tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in good faith. While
there is no evidence that he acted with malice, we can not entirely condone his actuations. As an
employee of PAL, the nature of his functions requires him to observe for the protection of the
interests of another person that degree of care, precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of
the Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection
and supervision of its employee, it is also primarily liable under Article 2180 of the same code which
explicitly provides that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
Under the aforesaid provision, all that is required is that the employee, by his negligence, committed
a quasi-delictwhich caused damage to another, and this suffices to hold the employer primarily and
solidarity responsible for the tortious act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the offended party's claim. 13
On the issue of damages, we agree, except as to the amount, that nominal damages may be
awarded to respondent Pagsibigan to vindicate the legal wrong committed against him. It appearing
that the wrong committed was immediately rectified when PAL promptly booked him for the next
morning's flight to Taipei where he arrived before noon of June 11, 1968 and was able to attend his
scheduled conference, and considering the concept and purpose of nominal damages, the award of
P20,000.00 must accordingly be reduced to an amount equal or at least commensurate to the injury
sustained.
WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air
Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and Roberto Espiritu are
declared jointly and severally liable to pay the sum of P10,000.00 by way of nominal damages,
without prejudice to the right of Philippine Air Lines, Inc. to recover from Roberto Espiritu
reimbursement of the damages that it may pay respondent Jose Pagsibigan.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-28725

March 12, 1968

BATANGAS LAGUNA TAYABAS BUS COMPANY, petitioner,

vs.
ASSOCIATE COMMISSIONER JOSUE L. CADIAO, PUBLIC SERVICE COMMISSION, LAND
TRANSPORTATION COMMISSION, and EASTERN TAYABAS BUS CO., INC., respondents.
Domingo E. de Lara & Associates for petitioner, Batangas Laguna Tayabas Bus Company.
Manuel O. Chan for respondent Eastern Tayabas Bus Co., Inc.
Office of the Solicitor General for respondent Associate Commissioner Josue Cadiao, et al.
RESOLUTION
FERNANDO, J.:
What is sought in this petition for mandamus and contempt with a prayer for the issuance of a
restraining order by petitioner Batangas Laguna Tayabas Bus Company, "the holder of several
certificates of public convenience for the operation of bus service" in several southern Luzon
provinces extending to Manila, 1 is to compel respondent Land Transportation Commission to act on
its letters of January 24, February 2 and February 8, 1968, 2 wherein it sought deferment of action on
any request of respondent Eastern Tayabas Bus Company, Inc. for the issuance of plates covering
units involved in its lease agreement with petitioner, such request being premised on the alleged
nullity of an order of respondent Commissioner Cadiao of the Public Service Commission, dated
November 2, 1967, granting the petition of respondent Eastern Tayabas Bus Company, Inc. to "be
allowed to acquire and register units for the operation of the certificates on the ground that its
contract of lease of its certificates with the Batangas Laguna Tayabas Bus Company will terminate
on March 6, 1968, . . ." with the proviso "that it should not operate the same earlier than March 6,
1968, which is the expiration date of the contract of lease." It was also expressly set forth in this
order of respondent Cadiao that it "is without prejudice to the resolution of applicant's contention that
under the lease contract it has the right to terminate the lease contract after a 60-day period notice
to the Batangas Laguna Tayabas Bus Co., Inc. which is now pending before the regular courts." 3
Petitioner contends that this order of November 2, 1967 is beyond the jurisdiction of the
respondent Public Service Commission, acting through respondent Commissioner Cadiao, on the
ground that the matter therein involved is pending resolution in an arbitration proceeding by virtue of
a decision of this Court on August 31, 1966, the dispositive portion of which declared that the Public
Service Commission was without jurisdiction to continue with cases between then petitioner
Batangas Laguna Tayabas Bus Company and then respondent Eastern Tayabas Bus Company, Inc.
"until final judgment or order is rendered by the Court of First Instance of Laguna in Civil Case No.
SP-600, and, until such time, the restraining order herein issue shall remain effective." 4 By virtue of

the above decision of this Court, the parties were heard by the Court of First Instance of Laguna in
San Pablo City in the above civil case with a partial decision being thereafter rendered as a result of
which the matter before it is now pending resolution by a Board of Arbitrators composed of Atty.
Francisco Carreon and Atty. Mamerto R. Villaruz. 5 Petitioner further predicates the alleged nullity of
the order of November 2, 1967 on the allegation that in its issuance, procedural due process was not
observed, no hearing having been accorded petitioner.
Respondent Eastern Tayabas Bus Co. Inc. immediately signified its intention to file a motion to
dismiss. In a resolution of March 1, 1968, this Court required petitioner to serve immediately upon
the aforesaid respondent a copy of its petition for mandamus and contempt with a prayer for the
issuance of a restraining order and to give the aforesaid respondent up to March 4, 1968 within
which it could file its motion to dismiss. The motion for restraining order as well as the motion to
dismiss were both set for hearing on March 5, 1968.
On March 2, 1968, an amended petition for mandamus, contempt, certiorari, prohibition and
injunction with a prayer for the issuance of a restraining order was filed by petitioner to the end "that
complete relief may be obtained in only one proceeding; . . . ." It was alleged that respondent
Eastern Tayabas Bus Company, Inc. in cooperation with the Land Transportation Commission "has
surreptitiously caused the registration of the units for use in the disputed lines, . . ."; that the delay in
deciding its petition to vacate the order of November 2, 1967 "is part of the scheme of [such]
respondent under which the order of denial would be issued at the last minute to give petitioner no
chance to take seasonable action thereon . . ."; that respondent Associate Commissioner Cadiao
"has personally intervened in causing the assignment" of the cases then pending in the Public
Service Commission to its prejudice, all of which to justify its amended petition for certiorari was
characterized by petitioner as showing that such respondent Associate Commissioner did act in an
improper, capricious and arbitrary manner, thus requiring the intervention of this Court. Petitioner
would lend a color of plausibility to its plea for a writ of prohibition on the allegation that the
actuations of respondent officials before this Court "have become or are without, or in excess of their
jurisdiction or with grave abuse of discretion." 6
The motion to dismiss, dated March 4, 1968 and docketed the same day, of respondent
Eastern Tayabas Bus Co., Inc., stated that petitioner "came to this [Court] with unclean hands" and
that its petition "does not state a cause of action." After reciting the facts, respondent's motion to
dismiss alleged "that the presentation of the petitioner's case in the instance petition leaves much to
be desired in completeness and accuracy. What was a graver fault is its deliberate concealment and
omission of material facts indispensable to a fair and accurate resolution" of this controversy. 7 Then
came the specifications of what it referred to as the incomplete and grossly misleading presentation
of the facts by the petitioner, referring to the failure of petitioner to include mention of the lease
contract between it and respondent in 1958 as well as its renewal in 1963, the source of the
continuing dispute between the parties, to the non-disclosure of the issue involved in it as well as the
circumstances surrounding the issuance by this Court of its restraining order in Batangas Laguna
Tayabas Bus Company v.Public Service Commission, 8 and its omission of a full hearing of the
dispute having been conducted on January 24, 1968, with reference to the matter which is embraced
in the order of November 2, 1967, there being a previous petition to set aside and to reconsider the
same. The motion to dismiss specified likewise why there as no cause of action in the original
petition which included a plea for certiorari and prohibition.

The parties were duly heard. The plea for a restraining order and the motion to dismiss were
argued on March 5, 1968. No restraining order was issued. No purpose would have been served as
the petition should have been dismissed. The Public Service Commission acting thru respondent
Commissioner Cadiao, has jurisdiction there being no substance to the allegation that there was a
denial of the right of petitioner to procedural due process.
Petitioner invokes the aforecited Batangas Laguna Tayabas Bus Company decision of this
Honorable Court to assail the jurisdiction of the Public Service Commission. There is here a
misinterpretation whether thru inadvertence or otherwise. As the opinion of this Court speaking thru
Justice Bengzon, was careful to point out, the Public Service Commission in that case was
restrained from acting "upon the application in question and resolves the dispute of the parties as to
the terms of the lease agreement," as to do so "would amount to exercising the functions of a purely
judicial tribunal an act it cannot do." More specifically, the opinion, in the interest of clarity, limited the
scope of the holding to "the private aspect of the lease agreement, the private rights of the parties in
their relation to each other as lessor and lessee." Relying on an earlier decision, 9 it reaffirmed the
doctrine that the "Public Service Commission has no private control over a public utility in its private
aspect. . . ." There was a clear intimation that where the matter would "involve the public interest or
public aspect" it is the Public Service Commission that has jurisdiction.
That prop failing, no question should exist as to the jurisdiction of the Commission. As was
implicit in the above Batangas Laguna Tayabas Bus Company opinion, the earlier ruling in Garcia v.
Bonifacio, 10 has not lost its force or cogency. While in that case what was before this Court was the
question of whether or not a Court of First Instance has competence over a complainant for the
recovery of damages and the conveyance of a certificate of public convenience, questions which
according to the opinion could not be inquired into, such issues being for the Public Service
Commission to resolve, it was the considered view of this Court that over the respective rights of the
parties insofar as the operation of a public utility is concerned, the "Commission is the only entity
empowered to withdraw the certificate from [a claimant] and to transfer it to [another] or grant him a
new certificate." Similarly, what is involved in this litigation, namely, a "petition to acquire and register
the units or trucks required to operate the lines of respondent Eastern Tayabas Bus Company, Inc."
after it had decided not to renew or extend its lease contract with petitioner, is properly cognizable by
the Public Service Commission. The plea of lack of jurisdiction is therefore unavailing.
That should suffice to dispose of this petition, were it not for the additional allegation that in the
issuance of the order of November 2, 1967, there was no hearing accorded petitioner. Such an
allegation is without basis as set forth in the motion to dismiss. 11 Petitioner "did not disclose that the
respondent Public Service Commission, through Associate Commissioner Josue L. Cadiao,
conducted a full hearing on the dispute under Public Service Commission Case No. 67-7081 on
January 24, 1968." What was not disclosed was specifically set forth in the motion to dismiss thus:
"On the very next day after the petitioner filed its Petition to Set Aside And To Reconsider or on
November 17, 1967, the respondent Commission issued a Notice of Hearing therefor . . . setting the
same for Friday, November 24, 1967 at 9 a.m. Thereafter, the respondent Commission, on the
petitioner's own request, held a session en banc on December 7, 1967, again to consider the said
Petition To Set Aside And To Reconsider. The respective lawyers of [petitioner] and [respondent
Eastern Tayabas Bus Co.], Domingo de Lara and Manuel O. Chan, actually argued extensively
during this meeting en banc of the respondent Commission. Thereafter, and as was agreed upon by

the parties in the course of the said hearing, the case was returned to the First Division which
promptly issued another Notice of Hearing dated January 10, 1968 (. . .) scheduling a full hearing on
January 24, 1968, during which the petitioner . . . and the herein respondent [Eastern Tayabas Bus
Co.] argued and presented pertinent evidence." 12
While it is true then that the order of November 2, 1967 was issued ex parte, it is equally true
that whatever objection could have been raised by petitioner were in fact set forth in its petition to set
aside and to reconsider and were inquired into in a hearing held on January 24, 1968. As far back as
1935, 13 it has already been a settled doctrine that a plea of denial of procedural due process does
not lie where a defect consisting of an absence of notice of hearing was thereafter cured by the
alleged aggrieved party having had the opportunity to be heard on a motion for reconsideration.
"What the law prohibits is not the absence of previous notice, but the absolute absence thereof and
lack of opportunity to be heard." 14 There is then no occasion to impute deprivation of property
without due process where the adverse party was heard on a motion for reconsideration constituting
as it does "sufficient opportunity" for him to inform the Tribunal concerned of his side of the
controversy. 15 As was stated in a recent decision, 16 what "due process contemplates is freedom from
arbitrariness and what it requires is fairness or justice, the substance rather than the form being
paramount," the conclusion being that the hearing on a motion for reconsideration meets the strict
requirement of the process.
This is all then that this petition presents. Clearly it should be dismissed for it is bereft of any
support in law. A word more however is required in view of the conspicuous failure of petitioner's
counsel to exhibit the candor required of an officer of the Court. The petition, as shown in the motion
to dismiss and in the course of the oral argument, left out many facts within the knowledge of the
petitioner with the evident purpose of imparting a semblance of plausibility to a petition otherwise
clearly lacking merit. While counsel is expected to exhibit the utmost zeal on behalf of a client it is
likewise imperative if the rule of law were to be truly meaningful that the orders of this Court be
based on a full and candid disclosure of relevant matters so that whatever action may thereafter be
taken be warranted by the events as they did transpire. Members of the Bar would then be remiss in
their duty towards a court of justice if in their undoubtedly earnest efforts to serve their client's cause,
there is, as in this case, a failure to live up to their exacting responsibility to exert the utmost
diligence that their pleadings submitted reflect the facts with truth and accuracy.
WHEREFORE, this petition is dismissed. With costs.

1wph1.t

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J., is on leave.