ELEMENTS OF QUASI DELICT

ACTS OR OMISSION

1. IMSON V. CA HOLIDAY HILLS STOCK AND BREEDING FARM CORPORATION, FNCB FINANCE CORPORATION

FACTS: The case at bench arose from a vehicular collision on December 11, 1983, involving petitioner's Toyota Corolla
and a Hino diesel truck registered under the names of private respondents FNCB Finance Corporation and Holiday
Hills Stock and Breeding Farm Corporation. The collision seriously injured petitioner and totally wrecked his car.

On January 6, 1984, petitioner filed with the RTC Baguio City1 a Complaint for Damages2 Sued were private
respondents as registered owners of the truck; truck driver Felix B. Calip, Jr.; the beneficial owners of the truck,
Gorgonio Co Adarme, Felisa T. Co (also known as Felisa Tan), and Cirilia Chua Siok Bieng, and the truck insurer, Western
Guaranty Corporation.

Defendants driver and beneficial owners failed to answer and were declared in default.4 On May 29, 1987, however,
petitioner and defendant insurer, entered into a compromise agreement which provided, inter alia:

1. Defendant Western Guaranty Corporation (Western Guaranty for short) admits that its total liability under
the laws and the insurance contract sued upon is P70,000.00;

2. In full settlement of its liability under the laws and the said insurance contract, defendant Western Guaranty
shall pay plaintiff (herein petitioner) the amount of P70,000.00 upon the signing of this compromise
agreement;

3. This compromise agreement shall in no way waive nor prejudice plaintiffs (herein petitioner's) rights to
proceed against the other defendants with respect the remainder of his claims;

4. This compromise agreement shall be a full and final settlement of the issues between plaintiff (herein
petitioner) and defendant Western Guaranty in their complaint and answer and, from now on, they shall have
no more right against one another except the enforcement of this compromise agreement.

Trial court (as consequence of the compromise agreement): dismissed the Complaint for Damages against Western
Guaranty Corporation on June 16, 1987.

A copy of the Order of dismissal was received by private respondent Holiday Hills Stock and Breeding Farm Corporation
on July 13, 1987. Nearly eighteen (18) months later, said private respondent moved to dismiss the case against all the
other defendants. It argued that since they are all indispensable parties under a common cause of action, the dismissal
of the case against defendant insurer must result in the dismissal of the suit against all of them.

The trial court denied the motion.

Court of Appeals: reversed the trial court

ISSUE: Whether or not the respondents in this case are considered as indispensable parties under a common cause of
action,( THUS, the dismissal of the case against defendant insurer must result in the dismissal of the suit against all of
them.)

RULING: NO. In the case at bench, it is clear that petitioner has different and separate causes of action against the
defendants in the case. The allegations in the Complaint show that petitioner seeks to recover from the truck driver
for his wrong which caused injury to petitioner and his car. The cause of action against him is based on quasi-delict
under Article 2176 of the New Civil Code. Quasi-delict, too, is the basis of the cause of action against defendants
beneficial and registered owners. But in their case, it is Article 2180 of the same Code which governs the rights of the
parties.

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However, with respect to defendant Western Guaranty Corporation, petitioner's cause of action is based on contract.
He seeks to recover from the insurer on the basis of the third party liability clause of its insurance contract with the
owners of the truck. This is acknowledged by the second paragraph of the compromise agreement between petitioner
and defendant insurer, thus:

2. In full settlement of its liability under the laws and the said insurance contract, defendant Western Guaranty
shall pay plaintiff (herein petitioner) the amount of P70,000.00 upon the signing of this compromise agreement.

It is true that all of petitioner's claims in Civil Case No. 248-R is premised on the wrong committed by defendant truck
driver. Concededly, the truck driver is an indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely proper parties to the case. Proper parties have been described
as parties whose presence is necessary in order to adjudicate the whole controversy, but whose interests are so far
separable that a final decree can be made in their absence without affecting them.17 It is easy to see that if any of them
had not been impleaded as defendant, the case would still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue Western Guaranty Corporation, the omission would not cause the dismissal of the suit
against the other defendants. Even without the insurer, the trial court would not lose its competency to act completely
and validly on the damage suit. The insurer, clearly, is not an indispensable party in Civil Case No. 248-R.

CONCEPTS & JURISPRUDENCE CITED:

1. cause of action was the alleged bad faith and gross negligence of the defendants resulting in the injuries complained
of and for which the action for damages was filed.

2. In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459 (1975) this court held that:

. . . (I)n all instances where a common cause of action is alleged against several defendants, some of whom answer
and the others do not, the latter or those in default acquire a vested right not only to own the defense interposed in
the answer of their co-defendant or co-defendants not in default but also to expect a result of the litigation totally
common with them in kind and in amount whether favorable or unfavorable. The substantive unity of the plaintiffs
cause against all the defendants is carried through to its adjective phase as ineluctably demanded by the homogeneity
and indivisibility of justice itself. . . . The integrity of the common cause of action against all the defendants and the
indispensability of all of them in the proceedings do not permit any possibility of waiver of the plaintiffs right only as
to one or some of them, without including all of them, and so, as a rule, withdrawal must be deemed to be a confession
of weakness as to all. . . . . Where all the defendants are indispensable parties, for which reason the absence of any of
them in the case would result in the court losing its competency to act validly, any compromise that the plaintiff might
wish to make with any of them must, as a matter of correct procedure, have to await until after the rendition of the
judgment, at which stage the plaintiff may then treat the matter of its execution and the satisfaction of his claim as
variably as he might please. Accordingly, in the case now before Us together with the dismissal of the complaint
against the non-defaulted defendants, the court should have ordered also the dismissal thereof as to petitioner
(referring to the defaulting defendants in the case).

In sum, Lim Tanhu states that where a complaint alleges a common cause of action against defendants who are all
indispensable parties to the case, its dismissal against any of them by virtue of a compromise agreement with the
plaintiff necessarily results in the dismissal of the case against the other defendants, including those in default. The
ruling is rooted on the rationale that the court's power to act in a case involving a common cause of action against
indispensable parties "is integral and cannot be split such that it cannot relieve any of them and at the same time
render judgment against the rest. 10

3. For Lim Tanhu to apply to the case at bench, it must be established that: (1) petitioner has common cause of action
against private respondents and the other defendants in Civil Case No. 248-R; and (2) all the defendants are
indispensable parties to the case.

4. CAUSE OF ACTION -- it is the delict or wrong by which the right of the plaintiff is violated by the defendant. 11 The
question as to whether a plaintiff has a cause of action is determined by the averments in the pleadings pertaining to
the acts of the defendant. Whether such acts give him a right of action is determined by substantive law. 12

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5. INDISPENSABLE PARTY -- is one whose interest will be affected by the court's action in the litigation, and without
whom no final determination of the case can be had. The party's interest in the subject matter of the suit and in the
relief sought are so inextricably intertwined with the other parties' that his legal presence as a party to the proceeding
is an absolute necessity.

2. ANDAMO V. INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and MISSIONARIES OF OUR LADY OF LA
SALETTE, INC.

FACTS:

FAULT OR NEGLIGENCE

3. US V. BARIAS

This is an appeal from a sentence imposed by the Honorable A. S. Crossfield, judge of the Court of First Instance of
Manila, for homicide resulting from reckless negligence.

FACTS:

That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said Segundo Barias was a motorman
on street car No. 9, run 7 of the Pasay-Cervantes lines of the Manila Electric Railroad and Light Company, a corporation
duly organized and doing business in the city of Manila, Philippine Islands; as a such motorman he was controlling and
operating said street car along Rizal Avenue, formerly Calle Cervantes, of this city, and as such motorman of the said
street car he was under obligation to run the same with due care and diligence to avoid any accident that might occur
to vehicles and pedestrians who were travelling on said Rizal Avenue;

The defendant was a motorman for the Manila Electric Railroad and Light Company. At about 6 o'clock on the morning
of November 2, 1911, he was driving his car along Rizal avenue and stopped it near the intersection of that street with
Calle Requesen to take on some passengers. When the car stopped, the defendant looked backward, presumably to
note whether all the passengers were aboard, and then started his car. At that moment Fermina Jose, a child about 3
years old, walked or ran in front of the car. She was knocked down and dragged some little distance underneath the
car, and was left dead upon the track. The motorman proceeded with his car to the end of the track, some distance
from the place of the accident, and apparently knew nothing of it until his return, when he was informed of what
happened.

trial court: found the defendant guilty of imprudencia temeraria (reckless negligence) as charged in the information,
and sentenced him to over one year and one month of imprisonment in the Bilibid Prison, and to pay the cause of the
action.

ISSUE: Whether the evidence shows such carelessness or want of ordinary care on the part of the defendant as to
amount to reckless negligence., (WON, the driver is negligent)

RULING: YES. The evidence shows that the thoroughfare on which the incident occurred was a public street in a
densely populated section of the city. The hour was six in the morning, or about the time when the residents of such
streets begin to move about. Under such conditions a motorman of an electric street car was clearly charged with a
high degree of diligence in the performance of his duties. He was bound to know and to recognize that any negligence
on his part in observing the track over which he was running his car might result in fatal accidents. He had no right to
assume that the track before his car was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout,
and to do everything in his power to avoid the danger which is necessarily incident to the operation of heavy street
cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this question must be answered in the negative.
We do not go so far as to say that having brought his car to a standstill it was his bounden duty to keep his eyes

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directed to the front. Indeed, in the absence of some regulation of his employers, we can well understand that, at
times, it might be highly proper and prudent for him to glance back before again setting his car in motion, to satisfy
himself that he understood correctly a signal to go forward or that all the passengers had safely alighted or gotten on
board. But we do insist that before setting his car again in motion, it was his duty to satisfy himself that the track was
clear, and, for that purpose, to look and to see the track just in front of his car. This the defendant did not do, and the
result of his negligence was the death of the child.

We think that the evidence showing, as it does, that the child was killed at the moment when the car was set in
motion, we are justified in holding that, had the motorman seen the child, he could have avoided the accident; the
accident was not, therefore, "unavailable or inexplicable," and it appearing that the motorman, by the exercise of
ordinary diligence, might have seen the child before he set the car in motion, his failure to satisfy himself that the
track was clear before doing so was reckless negligence, of which he was properly convicted in the court below.

CONCEPTS & JURISPRUDENCE:

1. Negligence (as defined by Judge Cooley) "The failure to observe, for the protection of the interests of another
person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other
persons suffers injury."

2. U. S. vs. Nava Reckless negligence consists of the failure to take such precautions or advance measures in the
performance of an act as the most prudence would suggest whereby injury is caused to persons or to property.

3. The word "negligencia" used in the code, and the term "imprudencia" with which this punishable act is defined,
express this idea in such a clear manner that it is not necessary to enlarge upon it. He who has done everything on his
part to prevent his actions from causing damage to another, although he has not succeeded in doing so,
notwithstanding his efforts, is the victim of an accident and cannot be considered responsible for the same.

4. Prudence - is that cardinal virtue which teaches us to discern and distinguish the good from bad, in order to adopt
or flee from it. It also means good judgment, temperance, and moderation in one's actions. `

5. Temerario is one who exposes himself to danger or rushes into it without reflection and without examining the
same.

6. Negligence (Ahern vs. Oregon Telephone Co) 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.

7. U. S. vs. Reyes - : "The diligence with which the law requires the individual at all the time to govern his conduct
varies with the nature of the situation in which he is placed and with the importance of the act which he is to perform.

4. HEDY GAN Y YU V. CA

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. 10201 of
the then Court of First Instance of Manila, Branch XXII presided by Judge Federico C. Alikpala.

FACTS: In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard, there were two vehicles,
a truck and a jeepney parked on one side of the road, one following the other about two to three meters from each
other.

As the car driven by the accused approached the place where the two vehicles were parked, there was a vehicle coming
from the opposite direction, followed by another which tried to overtake and bypass the one in front of it and thereby
encroached the lane of the car driven by the accused.

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To avoid a head-on collision with the oncoming vehicle, the defendant swerved to the right and as a consequence, the
front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to north,
pinning him against the rear of the parked jeepney.

The force of the impact caused the parked jeepney to move forward hitting the rear of the parts truck ahead of it. The
pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front
paints, and the truck sustained scratches at the wooden portion of its rear.

The body of the old man who was later Identified as Isidoro Casino was immediately brought to the Jose Reyes
Memorial Hospital but was (pronounced) dead on arrival.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the trial fiscal
moved for the dismissal of the case against petitioner during the resumption of hearing.

The Court instead ordered the prosecution to present its evidence.

trial court: Found petitioner guilty beyond reasonable doubt of the of-offense charged.

Court of Appeals: found the accused Hedy Gan is guilty beyond reasonable doubt of the crime of homicide thru simple
imprudence

ISSUE: WON, petitioner is guilty as charged due to her negligence./ WON, petitioner is negligent causing the injury or
damage against another.

RULING: NO. Applying the test* to the case at bar, we find the petitioner not guilty of the crime of Simple Imprudence
resulting in Homicide.

The course of action suggested by the appellate court would seem reasonable were it not for the fact that such
suggestion did not take into account the amount of time afforded petitioner to react to the situation she was in. For
it is undeniable that the suggested course of action presupposes sufficient time for appellant to analyze the situation
confronting her and to ponder on which of the different courses of action would result in the least possible harm to
herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative distances
of petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that petitioner did
have sufficient time to reflect on the consequences of her instant decision to swerve her car to the light without
stepping on her brakes.

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to have been
admitted by it. Thus, under the circumstances narrated by petitioner, we find that the appellate court is asking too
much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate
herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. Petitioner certainly
could not be expected to act with all the coolness of a person under normal conditions. 10 The danger confronting
petitioner was real and imminent, threatening her very existence. She had no opportunity for rational thinking but
only enough time to heed the very powerful instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits. We
therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently
absolve petitioner from any criminal negligence in connection with the incident under consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of the claim due
them, had effectively and clearly waived their right thereto.

CONCEPTS & JURISPRUDENCE:

1. * The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to
the person or property of another is this: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so,

5
the law imposes the duty oil the doer to take precaution against its mischievous results and the failure to do so
constitutes negligence.

2. A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly finds himself
in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear
to have been a better method, unless the emergency in which he finds himself is brought about by his own
negligence."

3. The appellate court in finding the petitioner guilty said:

The accused should have stepped on the brakes when she saw the car going in the opposite direction
followed by another which overtook the first by passing towards its left. She should not only have
swerved the car she was driving to the right but should have also tried to stop or lessen her speed so
that she would not bump into the pedestrian who was crossing at the time but also the jeepney which
was then parked along the street.

5. AMADO PICART V. FRANK SMITH, JR.

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.

FACTS: 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.

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ISSUE: 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.

RULING: YES. 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.

From what has been said it results that the judgment of the lower court must be reversed, and judgment is here
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.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of my
understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents.
This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a
traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury, his negligence at
that point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the interval of time, and
that at the moment the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule
is applicable. In other words, when a traveler has reached a point where he cannot extricate himself and vigilance on
his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate
cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

CONCEPT & JURISPRUDENCE:

1. * 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.

2. 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.

3. 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.

4. 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.

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5. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary
before negligence can be held to exist.

6. 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.

DAMAGES

6. SO PING BUN V. CA, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG

7. PHOENIX V. CA

8. JARCO MARKETING V. CA, CONRADO C. AGUILAR and CRISELDA R. AGUILAR

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners Leonardo
Kong, Jose Tiope and Elisa Panelo are the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

FACTS: In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels Department Store,
Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden
gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her
young body pinned by the bulk of the stores gift-wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and
retrieving ZHIENETH from the floor.

ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost
her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took
their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital
bed. She was six years old.

After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses[6] which they had incurred. Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages

trial court: dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored
petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It
also held that CRISELDAs negligence contributed to ZHIENETHs accident.

Court of Appeals: decided in favor of private respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted
L[11] with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly
distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; The Court of
Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort.

ISSUE: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.

RULING: We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only be
attributed to negligence.

Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales testimony
on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the counters base.

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Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the
unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the stores
employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the
situation petitioners miserably failed to discharge the due diligence required of a good father of a family.

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDAs waist,
later to the latters hand.[31] CRISELDA momentarily released the childs hand from her clutch when she signed her
credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at
the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping
counter was just four meters away from CRISELDA.[32] The time and distance were both significant.ZHIENETH was near
her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who
treated her at the hospital that she did not do anything; the counter just fell on her.

CONCEPT & JURISPRUDENCE:

1. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant.

- a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening
wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the
person to whom it happens.

2. negligence the omission to do something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man
would not do.

- failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other person suffers injury.

3. Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the
person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have
been prevented by any means suggested by common prudence.

4. test in determining the existence of negligence (Picart v. Smith) Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If
not, then he is guilty of negligence.

5. Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior
or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.

6. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law.

9. IMPERIAL V. HEALD LUMBER COMPANY & DE HERNANDEZ V. HEALD LUMBER COMPANY & PHIL. AIRLINES V. HEALD
LUMBER COMPANY

FACTS: On June 4, 1954, at about 6:50 a.m., a helicopter (PIC361) of the Philippine Air Lines, Inc. (PAL), which had
been chartered by the Lepanto Consolidated Mining Co., took off from Nichols Fields, in Makati, Rizal, headed for
Mankayan, Mt. Province, via Rosales, Pangasinan. On board the helicopter were Capt. Gabriel Hernandez and Lt. Rex
Imperial. The helicopter reached Rosales at 8:22 a.m., and, fifty-three (53) minutes later, or at 9:15 a.m., it undertook
the last leg of its flight to Mankayan. However, the helicopter did not reach this place for it crashed on the way.

A search party composed of, among others, Capts. Willis Rohlings and Jaime Manzano, both of the PAL organized
to track down the missing helicopter, found it in a ravine located in the barrio of Ampusungan, Benguet, Mt. Province
within the lumber concession of defendant-appellee, Heald Lumber Co. which is several kilometers before reaching
Mankayan.

9
The helicopter was a total wreck and both Capt. Hernandez and Lt. Imperial were dead. The body of the former was
strapped to his seat, but that of the latter was several feet away from the wreckage. At the time of the flight, Capt.
Hernandez was a duly licensed helicopter pilot, whereas Lt. Imperial, although a licensed plane pilot, was then under
training as helicopter pilot.

Owing to this accident, three (3) actions were instituted in the court aforementioned, against said defendant, namely:
(1) case No. 580 (G.R. No. L-14112), filed by PAL on March 2, 1956; (2) case No. 591 (G.R. No. L-14088), filed by
Concepcion Pellosa de Imperial, widow of the deceased Lt. Imperial, on April 13, 1956; and 3) case No. 592 (G.R. No.
L-14089), filed by Lourdes Ferrer de Hernandez, widow of Capt. Hernandez, on the date last mentioned.

In the first case, the PAL sought to recover the following upon the ground that the mishap was due to the fact that
the helicopter had collided "with defendant's tramway steel cables strung in parallel of approximately 3,000 yards in
length between two mountains approximately 3,000 to 5,000 feet high in the vicinity of defendant's logging area in
Ampusungan, Mountain Province."

lower court: presided by Hon. Jesus de Veyra, rendered the decision appealed from, finding that plaintiffs had "failed
to make out a case of negligence on the part of the defendant" and, accordingly, dismissing the three (3) complaints.

ISSUE: WON, the death of Lt. Imperial And Capt. Hernandez was due to the defendants alleged "gross negligence"
and "flagrant violation of applicable laws and regulations." (thus, may recover damages)

RULING: NO. The foregoing considerations suggest, also, that Capt. Hernandez and Lt. Imperial had acted recklessly in
undertaking the flight with a supply of fuel hardly sufficient to enable them to reach their destination. Besides, the
landing report (Exhibit 9) shows that the portions thereof pertaining to the pilot were accomplished or filled in by Lt.
Imperial upon landing at the Rosales airport. In fact, he signed said report as pilot of the helicopter. Again, it appears
that during the flight from Rosales to Mankayan, the helicopter had deviated from one to three miles from the course
plotted by Capt. Hernandez, in which Col. Arnaiz concurred "because that was the most logical route to follow." Had
Capt. Hernandez been piloting the machine from Rosales to Mankayan, he would have had no reason to deviate from
the course planned by him, for the "visibility and ceiling were unlimited in the area and vicinity where the helicopter
fell." All indications are, therefore, to the effect that, at the time of the accident, the helicopter was being piloted, not
by Capt. Hernandez but by Lt. Imperial, in violation of Aeronautics Bulletin No. 1, Civil Aviation Regulations, of the
Bureau of Aeronautics (CAA)1 as well as of Republic Act No. 776, Section 42 (H),2 for Lt. Imperial was not a lincesed
helicopter pilot and was merely in the initial stage of his training as such pilot.

In short, it has not been satisfactorily shown that the cables were a hazard to aerial navigation, or that the defendant
should have or could have reasonably foreseen that aircrafts would fly so low over the place as to get entangled with
said cables, for the area is dangerous to navigation owing to its mountainous terrain "full of pine trees."

In short plaintiffs-appellants have failed to establish their pretense by a preponderance of evidence, in view of which
the decision appealed from must be, as it is hereby affirmed, with costs against them.

RATIONALE:

The record shows that the helicopter had a main tank and an auxiliary tank with a capacity of twenty-seven (27) and
fifteen (15) gallons of fuel, respectively. The main tank was connected to the engine, but the auxiliary tank was not.
In order to transfer gasoline from the latter to the former, it was necessary to land the helicopter, as the process could
not be undertaken during flight. This was, in all probability, the reason why the aircraft had to land in Rosales,
Pangasinan, before proceeding to Mankayan.

Having left Rosales at 9:15 a.m., after its flight from Nichols Field, of one (1) hour and thirty-two (32) minutes (from
6:50 to 8:22), the helicopter was supposed to reach Mankayan at 10:44 a.m., the estimated flying time between
Rosales and Mankayan being one (1) hour and twenty-nine (29) minutes. Upon the other hand, the time of the crash
was placed at around 11:30 a.m., or between 11:00 and 11:30 a.m. By that time the helicopter had already flown from
one (1) hour and forty-five (45) minutes to two (2) hours and fifteen (15) minutes, since it took off from Rosales, thus
exceeding by sixteen (16) to forty-six (46) minutes the aforementioned estimated flying time. Considering that, with
twenty-seven (27) gallons of gasoline, the helicopter had to refuel after a flight of one (1) hour and thirty-two (32)

10
minutes (from Nichols Field to Rosales), it is apparent that, after flying for a longer period of one (1) hour and forty-
five (45) minutes to two (2) hours and fifteen (15) minutes, with a little over fifteen (15) gallons or at most twenty-
seven (27) gallons of gasoline, the provision of fuel must have already been exhausted.

Col. Arnaiz, aircraft dispatcher of PAL, testified that the "maximum flight endurance" of the helicopter was "two hours
and fifty minutes including the auxiliary tank." The Flight Plan (Exhibit B-1), as explained by Col. Arnaiz, shows that the
estimated flying time from Nichols Field to Rosales was one (1) hour and forty-two (42) minutes, and from Rosales to
Mankayan, one (1) hour and twenty-nine (29) minutes, or an aggregate estimated flying time of three (3) hours and
eleven (11) minutes, or twenty-one (21) minutes longer than the estimated "maximum flight endurance" of the
helicopter. Even if we deduct from said total estimated flying time, from Nichols Field to Mankayan, the ten (10)
minutes saved in the flight from Nichols Field to Rosales, Pangasinan, the result would still be eleven (11) minutes
beyond the said "maximum flight endurance" of the helicopter. In fact, the crash site (Ampusungan) is only about
sixteen (16) kilometers, or ten (10) minutes flying time, to Mankayan. In other words, the accident took place in the
area in which the helicopter was to have fully consumed its entire supply of gasoline, thus justifying the belief that it
was forced to land in Ampusungan due to lack of gasoline, and that, as the engine ceased to function, its
maneuverability must have become impaired, in view of which it crashed, thus causing it to fall into a ravine in
defendant's concession.1awphl.nt

Several factors indicate strongly that this was in all likelihood what happened for: (1) the site of the crash was more
than a mile (over three [3] miles, according to the defendant) off the plotted course, altho, under normal conditions,
no reasonably prudent pilot according to appellants witness, Capt. Manzano would have attempted to land in
the vicinity of the scene of the occurrence; (2) the wrecked helicopter emitted no smell of gasoline and there was no
sign of fire resulting from the crash, despite the fact that the helicopter was using high octane gasoline, which,
admittedly, is highly inflammable and would have probably set the craft aflame upon hitting the pine tree above
referred to, had there been some gasoline in the tank at that time; and (3) the helicopter was a total wreck, thus
showing that the impact must have been strong.

10. ATLATIC GULF AND PACIFIC COMPANY OF MANILA, INC. V. CA, CARLITO D. CASTILLO, HEIRS OF CRISTETA CASTILLO
and CORNELIO CASTILLO

Assailed in this appeal by certiorari is the judgment 1 of respondent appellate court rendered in CA-G.R CV Nos. 29976-
77, which affirmed with modifications the judgment of the trial court by increasing the award of damages to herein
private respondents. While the increased awards could arguably have been justified, it was the inaction of private
respondents that now militate against the same.

FACTS: Sometime in 1982, petitioner company commenced the construction of a steel fabrication plant in the
Municipality of Bauan, Batangas, necessitating dredging operations at the Batangas Bay in an area adjacent to the real
property of private respondents.

As an offshoot of said dredging operations, an action for damages against herein petitioner Atlantic Gulf and Pacific
Company of Manila, Inc. was filed by Carlito D. Castillo which was docketed as Civil Case No. 10276, and another action
by Cristeta Castillo for herself and as guardian of Cornelio Castillo, docketed as Civil Case No. 10696

On August 19, 1985, the above-mentioned cases were consolidated, as the plaintiffs therein intended to present
common evidence against defendant, 2 by reason of the virtual identity of the issues involved in both cases.

Private respondents alleged that during the on-going construction of its steel and fabrication yard, petitioner's
personnel and heavy equipment trespassed into the adjacent parcels of land belonging to private respondents without
their consent. These heavy equipment damaged big portions of private respondents' property which were further
used by petitioner as a depot or parking lots without paying any rent therefor, nor does it appear from the records
that such use of their land was with the former's conformity.

ISSUE: WON, the CA was correct in modifying the amount of damages to be recovered by the respondents.

11
RULING: NO. The evidence on record indubitably support the findings of the trial and appellate courts that petitioner
company is liable for the destruction of the property of herein private respondents and consequently entitle the latter
to an award of the damages prayed for.

However, this Court finds that respondent Court of Appeals committed a reversible error of law in increasing the amount
of damages awarded to private respondents by the court a quo.

Respondent appellate court exceeded its jurisdiction when it modified the judgment of the trial court by increasing
the award of damages in favor of private respondents who, in the first place, did not interpose an appeal therefrom.
This being the case, they are presumed to be satisfied with the adjudication made by the lower court. As to them, the
judgment of the court below may be said to have attained finality.

WHEREFORE, the challenged judgment of respondent Court of Appeals is hereby MODIFIED with regard to the amount
of damages awarded to private respondents and the awards of the trial court on this matter are hereby reinstated for
that purpose. In all other respects, the decision of respondent court is AFFIRMED, without pronouncement as to costs.

CONCEPT & JURISPRUDENCE:

The fact that the appellate court adopted the findings of the trial court, as in this case, makes the same binding upon
the Supreme Court, for the factual findings of said appellate court are generally binding on the latter. For that matter
the findings of the Court of Appeals by itself, and which are supported by substantial evidence, are almost beyond the
power of review by the Supreme Court.

11. PHILIPPINE BANK OF COMMERCE V. CA, ROMMEL'S MARKETING CORP., represented by ROMEO LIPANA, its
President & General Manager

The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for
brevity), represented by its President and General Manager Romeo Lipana, to recover from the former Philippine Bank
of Commerce (PBC for brevity), now absorbed by the Philippine Commercial International Bank, the sum of
P304,979.74 representing various deposits it had made in its current account with said bank but which were not
credited to its account, and were instead deposited to the account of one Bienvenido Cotas, allegedly due to the gross
and inexcusable negligence of the petitioner bank.

FACTS: In the ordinary and usual course of banking operations, current account deposits are accepted by the bank on
the basis of deposit slips prepared and signed by the depositor, or the latter's agent or representative, who indicates
therein the current account number to which the deposit is to be credited, the name of the depositor or current
account holder, the date of the deposit, and the amount of the deposit either in cash or checks. The deposit slip has
an upper portion or stub, which is detached and given to the depositor or his agent; the lower portion is retained by
the bank.

From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash
totalling P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the current accounts
of RMC with PBC.

During this period, petitioner bank had, however, been regularly furnishing private respondent with monthly
statements showing its current accounts balances. Unfortunately, it had never been the practice of Romeo Lipana to
check these monthly statements of account reposing complete trust and confidence on petitioner bank.

Irene Yabut's modus operandi is far from complicated. She would accomplish two (2) copies of the deposit slip, an
original and a duplicate. The original showed the name of her husband as depositor and his current account number.
On the duplicate copy was written the account number of her husband but the name of the account holder was left
blank. PBC's teller, Azucena Mabayad, would, however, validate and stamp both the original and the duplicate of these
deposit slips retaining only the original copy despite the lack of information on the duplicate slip. The second copy
was kept by Irene Yabut allegedly for record purposes. After validation, Yabut would then fill up the name of RMC in
the space left blank in the duplicate copy and change the account number written thereon, which is that of her
husband's, and make it appear to be RMC's account number.

12
This went on in a span of more than one (1) year without private respondent's knowledge.

RMC demanded from petitioner bank the return of its money, but as its demand went unheeded.

It filed a collection suit before the Regional Trial Court of Pasig, Branch 160.

The trial court: found petitioner bank negligent

appellate court: affirmed the foregoing decision with modifications

ISSUE: : What is the proximate cause of the loss, to the tune of P304,979.74, suffered by the private respondent RMC
petitioner bank's negligence or that of private respondent's?

RULING: Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating,
officially stamping and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that
the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect
to the proper validation of deposit slips, original or duplicate, as testified to by Ms. Mabayad herself.

A "reasonable man of ordinary prudence" 12would not have given credence to such explanation and would have
insisted that the space left blank be filled up as a condition for validation. Unfortunately, this was not how bank teller
Mabayad proceeded thus resulting in huge losses to the private respondent.

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and
supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent, and not
the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners.

. Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she would not
have been able to deposit those funds in her husband's current account, and then make plaintiff believe that it was
in the latter's accounts wherein she had deposited them, had it not been for bank teller Mabayad's aforesaid gross
and reckless negligence. The latter's negligence was thus the proximate, immediate and efficient cause that brought
about the loss claimed by plaintiff in this case, and the failure of plaintiff to discover the same soon enough by failing
to scrutinize the monthly statements of account being sent to it by appellant bank could not have prevented the fraud
and misappropriation which Irene Yabut had already completed when she deposited plaintiff's money to the account
of her husband instead of to the latter's accounts.

HOWEVER, The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise
negligent in not checking its monthly statements of account. Had it done so, the company would have been alerted
to the series of frauds being committed against RMC by its secretary. The damage would definitely not have ballooned
to such an amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in their financial affairs.
This omission by RMC amounts to contributory negligence which shall mitigate the damages that may be awarded to
the private respondent.

In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40
ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's
fees, shall be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The
award of attorney's fees shall be borne exclusively by the petitioners.

WHEREFORE, the decision of the respondent Court of Appeals is modified by reducing the amount of actual damages
private respondent is entitled to by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount they would
pay the private respondent. Private respondent shall have recourse against Ms. Irene Yabut. In all other respects, the
appellate court's decision is AFFIRMED.

CONCEPTS & JURISPRUDENCE:

1. three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or
some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff.

13
2. Negligence is the omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable
man would do.

3. test by which to determine the existence of negligence in a particular case which may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person
would have used in the same situation? If not, then he is guilty of negligence.

4. proximate cause as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, prod uces the injury, and without which the result would not have occurred. . . .

5. "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank
was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but the
negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose
fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable with the consequences thereof.

6. In the case of banks, however, the degree of diligence required is more than that of a good father of a family.
Considering the fiduciary nature of their relationship with their depositors, banks are duty bound to treat the accounts
of their clients with the highest degree of care.

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

12. PANTRACO NORTH EXPRESS INC. V. MARICAR BASCOS BAESA, thru her personal guardian FRANCISCA O. BASCOS,
FE O. ICO, in her behalf and in behalf of her minor children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO,

FACTS: At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children
Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven
other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate
the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was also the
registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some viands to one
Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam River. Upon reaching the highway,
the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they were proceeding
towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the
jeepneys lane while negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold Jim and
Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was extensively damaged. After
the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela.
From that time on up to the present, Ramirez has never been seen and has apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case amicably under the "No
Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children, filed
separate actions for damages arising from quasi-delict against PANTRANCO.

CFI of Pangasinan rendered a decision against PANTRANCO

ISSUE: WON, the doctrine of Last Clear Chance is applicable in this case.

14
RULING: NO. Contrary to the petitioners contention, the doctrine of "last clear chance" finds no application in this
case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the peril or should, with exercise of due care, have been aware of
it. One cannot be expected to avoid an accident or injury if he does not know or could not have known the existence
of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of the impending danger.
When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the
jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own
lane upon seeing the jeepney approaching from the opposite direction.

Considering the foregoing, the Court finds that the negligence of petitioners driver in encroaching into the lane of
the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney coming
from the opposite direction was the sole and proximate cause of the accident without which the collision would not
have occurred. There was no supervening or intervening negligence on the part of the jeepney driver which would
have made the prior negligence of petitioners driver a mere remote cause of the accident.

CONCEPTS & JURISPRUDENCE:

1. The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery
for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the
consequences of the accident notwithstanding the prior negligence of the plaintiff.

2. Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who
was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim for damages.

3. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a
motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an
approaching vehicle coming towards him on the wrong side, will return to his proper lane of traffic.

4. When an injury is caused by the negligence of an employee, there instantly arises a presumption that the employer
has been negligent either in the selection of his employees or in the supervision over their acts. Although this
presumption is only a disputable presumption which could be overcome by proof of diligence of a good father of a
family.

RES IPSA LOQUITOR (ART. 2179)

13. SPOUSES AFRICA and the HEIRS OF DOMINGA ONG V. CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT
OF APPEALS

FACTS: . 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.

ISSUE: 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.

15
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 be 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."

RULING: 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.

---- 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.

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.

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.

CONCEPT & JURISPRUDENCE:

1. 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."

2. 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).

3. 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.'

4. "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."

14. CEBU SHIPYARD AND ENGINEERING WORKS V. WILLIAM LINES, INC. and PRUDENTIAL GUARANTEE and
ASSURANCE COMPANY, INC.

FACTS: Cebu Shipyard and Engineering Works, Inc. (CSEW) is a domestic corporation engaged in the business of dry-
docking and repairing of marine vessels while the private respondent, Prudential Guarantee and Assurance, Inc.
(Prudential), also a domestic corporation is in the non-life insurance business.

William Lines, Inc. (plaintiff below) is in the shipping business. It was the owner of M/V Manila City, a luxury passenger-
cargo vessel, which caught fire and sank on February 16, 1991. At the time of the unfortunate occurrence sued upon,

16
subject vessel was insured with Prudential for P45,000,000.00 pesos for hull and machinery. The Hull Policy included
an Additional Perils (INCHMAREE) Clause covering loss of or damage to the vessel through the negligence of, among
others, ship repairmen.

While the M/V Manila City was undergoing dry-docking and repairs within the premises of CSEW, the master, officers
and crew of M/V Manila City stayed in the vessel, using their cabins as living quarters. Other employees hired by
William Lines to do repairs and maintenance work on the vessel were also present during the dry-docking.

On February 16, 1991, after subject vessel was transferred to the docking quay, it caught fire and sank, resulting to its
eventual total loss.

On February 21, 1991, William Lines, Inc. filed a complaint for damages against CSEW, alleging that the fire which
broke out in M/V Manila City was caused by CSEWs negligence and lack of care.

trial court a quo came out with a judgment against CSEW, , judgment is hereby rendered in favor of the plaintiffs and
against the defendant.

Court of Appeals ordered the partial dismissal of the case insofar as CSEW and William Lines were concerned.

, the Court of Appeals and the Cebu Regional Trial Court of origin are agreed that the fire which caused the total loss
of subject M/V Manila City was due to the negligence of the employees and workers of CSEW.

ISSUE: WON, the doctrine of res ipsa loquitor is applicable in the case.

RULING: The finding by the trial court and the Court of Appeals that M/V Manila City caught fire and sank by reason
of the negligence of the workers of CSEW, when the said vessel was under the exclusive custody and control of CSEW
is accordingly upheld. Under the circumstances of the case, the doctrine of res ipsa loquitur applies.

CONCEPT & JURISPRUDENCE:

1. the doctrine of res ipsa loquitur to apply to a given situation, the following conditions must concur: (1) the
accident was of a kind which does not ordinarily occur unless someone is negligent; and (2) that the instrumentality
or agency which caused the injury was under the exclusive control of the person charged with negligence.

2. What is more, in the present case the trial court found direct evidence to prove that the workers and/or employees
of CSEW were remiss in their duty of exercising due diligence in the care of subject vessel. The direct evidence
substantiates the conclusion that CSEW was really negligent. Thus, even without applying the doctrine of res ipsa
loquitur, in light of the direct evidence on record, the ineluctable conclusion is that the petitioner, Cebu Shipyard and
Engineering Works, Inc., was negligent and consequently liable for damages to the respondent, William Lines, Inc.

15. RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). V. CA, LORETO DIONELA

The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the
offended party, Loreto Dionela, reading as follows:

176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO DIONELA CABANGAN LEGASPI CITY

WIRE ARRIVAL OF CHECK FER

LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER

115 PM

SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA DITO KAHIT BULBUL MO

FACTS: Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only
wounded his feelings but also caused him undue embarrassment and affected adversely his business as well because
other people have come to know of said defamatory words.

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Defendant corporation as a defense, alleges that the additional words in Tagalog was a private joke between the
sending and receiving operators and that they were not addressed to or intended for plaintiff and therefore did not
form part of the telegram and that the Tagalog words are not defamatory.

The telegram sent through its facilities was received in its station at Legaspi City. Nobody other than the operator
manned the teletype machine which automatically receives telegrams being transmitted. The said telegram was
detached from the machine and placed inside a sealed envelope and delivered to plaintiff, obviously as is. The
additional words in Tagalog were never noticed and were included in the telegram when delivered.

trial court: There is no question that the additional words in Tagalog are libelous. They clearly impute a vice or defect
of the plaintiff. Whether or not they were intended for the plaintiff, the effect on the plaintiff is the same. Any person
reading the additional words in Tagalog will naturally think that they refer to the addressee, the plaintiff. There is no
indication from the face of the telegram that the additional words in Tagalog were sent as a private joke between the
operators of the defendant.

appellate court: in its assailed decision confirming the aforegoing findings of the lower court stated:

The proximate cause, therefore, resulting in injury to appellee, was the failure of the appellant to take the necessary
or precautionary steps to avoid the occurrence of the humiliating incident now complained of. The company had not
imposed any safeguard against such eventualities and this void in its operating procedure does not speak well of its
concern for their clientele's interests. Negligence here is very patent. This negligence is imputable to appellant and
not to its employees.

The claim that there was no publication of the libelous words in Tagalog is also without merit. The fact that a carbon
copy of the telegram was filed among other telegrams and left to hang for the public to see, open for inspection by a
third party is sufficient publication. It would have been otherwise perhaps had the telegram been placed and kept in
a secured place where no one may have had a chance to read it without appellee's permission.

The additional Tagalog words at the bottom of the telegram are, as correctly found by the lower court, libelous per
se, and from which malice may be presumed in the absence of any showing of good intention and justifiable motive
on the part of the appellant.

ISSUE: WON, the doctrine of res ipsa loquitor is applicable in the case.

RULING: YES. 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.

In most cases, negligence must be proved in order that plaintiff may recover. However, since negligence may be hard
to substantiate in some cases, we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for itself), by
considering the presence of facts or circumstances surrounding the injury.

CONCEPT & JURISPRUDENCE:

The cause of action of the private respondent is based on Arts. 19 and 20 of the New Civil Code (supra). As well as on
respondent's breach of contract thru the negligence of its own employees. 1

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. There is no question that in the case at
bar, libelous matters were included in the message transmitted, without the consent or knowledge of the sender.
There is a clear case of breach of contract by the petitioner in adding extraneous and libelous matters in the message
sent to the private respondent.

ASSUMPTION OF RISK

16. REPUBLIC V. LUZON STEVEDORING CORP

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FACTS: In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring Corporation was
being towed down the Pasig river by tugboats "Bangus" and "Barbero"1 also belonging to the same corporation, when
the barge rammed against one of the wooden piles of the Nagtahan bailey bridge, smashing the posts and causing
the bridge to list. The river, at the time, was swollen and the current swift, on account of the heavy downpour of
Manila and the surrounding provinces on August 15 and 16, 1960.

Sued by the Republic of the Philippines for actual and consequential damage caused by its employees, amounting to
P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon Stevedoring Corporation disclaimed liability therefor,
on the grounds that it had exercised due diligence in the selection and supervision of its employees; that the damages
to the bridge were caused by force majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey bridge
is an obstruction to navigation.

After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the damage caused
by its employees and ordering it to pay to plaintiff the actual cost of the repair of the Nagtahan bailey bridge which
amounted to P192,561.72, with legal interest thereon from the date of the filing of the complaint.

ISSUE: WON, respondent failed to assume risk.

RULING: YES. the appellant, Luzon Stevedoring Corporation, knowing and appreciating the perils posed by the swollen
stream and its swift current, voluntarily entered into a situation involving obvious danger; it therefore assured the
risk, and can not shed responsibility merely because the precautions it adopted turned out to be insufficient. Hence,
the lower Court committed no error in holding it negligent in not suspending operations and in holding it liable for
the damages caused.

It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located. Even if true, these
circumstances would merely emphasize the need of even higher degree of care on appellant's part in the situation
involved in the present case. The appellant, whose barges and tugs travel up and down the river everyday, could not
safely ignore the danger posed by these allegedly improper constructions that had been erected, and in place, for
years.

CONCEPT & JURISPRUDENCE:

1. caso fortuito or force majeure(which in law are identical in so far as they exempt an obligor from liability) 2 by
definition, are extraordinary events not foreseeable or avoidable, "events that could not be foreseen, or which,
though foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines). It is, therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly believed, but it must be one impossible to foresee or
to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same.

17. DIOKINO V. FEDERICO LAUREANO, AIDA DE LAUREANO and JUANITO LAUREANO

The present lawsuit had its origin in a relationship, if it could be called such, the use of a car owned by plaintiff Pedro
D. Dioquino by defendant Federico Laureano, clearly of a character casual and temporary but unfortunately married
by an occurrence resulting in its windshield being damaged. A stone thrown by a boy who, with his other companions,
was thus engaged in what undoubtedly for them must have been mistakenly thought to be a none too harmful prank
did not miss its mark. Plaintiff would hold defendant Federico Laureano accountable for the loss thus sustained,
including in the action filed the wife, Aida de Laureano, and the father, Juanito Laureano. Plaintiff prevail in the lower
court, the judgment however going only against the principal defendant, his spouse and his father being absolved of
any responsibility.

FACTS: "Attorney Pedro Dioquino, a practicing lawyer of Masbate, is the owner of a car. On March 31, 1964, he went
to the office of the MVO, Masbate, to register the same. He met the defendant Federico Laureano, a patrol officer of
said MVO office, who was waiting for a jeepney to take him to the office of the Provincial Commander, PC, Masbate.

Attorney Dioquino requested the defendant Federico Laureano to introduce him to one of the clerks in the MVO
Office, who could facilitate the registration of his car and the request was graciously attended to. Defendant Laureano

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rode on the car of Atty. Dioquino on his way to the P.C. Barracks at Masbate. While about to reach their destination,
the car driven by plaintiff's driver and with defendant Federico Laureano as the sole passenger was stoned by some
'mischievous boys,' and its windshield was broken.

Defendant Federico Laureano chased the boys and he was able to catch one of them. The boy was taken to Atty.
Dioquino [and] admitted having thrown the stone that broke the car's windshield. The plaintiff and the defendant
Federico Laureano with the boy returned to the P.C. barracks and the father of the boy was called, but no satisfactory
arrangements [were] made about the damage to the
windshield."

"The defendant Federico Laureano refused to file any charges against the boy and his parents because he thought
that the stone-throwing was merely accidental and that it was due to force majeure.

So he did not want to take any action and after delaying the settlement, after perhaps consulting a lawyer, the
defendant Federico Laureano refused to pay the windshield himself and challenged that the case be brought to court
for judicial adjudication.

There is no question that the plaintiff tried to convince the defendant Federico Laureano just to pay the value of the
windshield and he even came to the extent of asking the wife to convince her husband to settle the matter amicably
but the defendant Federico Laureano refused to make any settlement, clinging [to] the belief that he could not be
held liable because a minor child threw a stone accidentally on the windshield and therefore, the same was due
to force majeure."

ISSUE: WON, respondent must be held liable for the damage incurred by the petitioner due to failure of assuming risk.

RULING: NO. The error committed by the lower court in holding defendant Federico Laureano liable appears to be
thus obvious. Its own findings of fact repel the motion that he should be made to respond in damages to the plaintiff
for the broken windshield. What happened was clearly unforeseen. It was a fortuitous event resulting in a loss which
must be borne by the owner of the car.

In that case then (republic v. stevedoring0, the risk was quite evident and the nature of the obligation such that a
party could rightfully be deemed as having assumed it. It is not so in the case before us. It is anything but that. If the
lower court, therefore, were duly mindful of what this particular legal provision contemplates, it could not have
reached the conclusion that defendant Federico Laureano could be held liable. To repeat, that was clear error on its
part.

It cannot be said that such an attempt at justification is impressed with a high persuasive quality. Far from it.
Nonetheless, mistaken as plaintiff apparently was, it cannot be concluded that he was prompted solely by the desire
to inflict needless and unjustified vexation on them. Considering the equities of the situation, plaintiff having suffered
a pecuniary loss which, while resulting from a fortuitous event, perhaps would not have occurred at all had not
defendant Federico Laureano borrowed his car, we, feel that he is not to be penalized further by his mistaken view of
the law in including them in his complaint.

The incident is a fortuitous event.

CONCEPT & JURISPRUDENCE:

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

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