Ngo Sin Sing and Ticia Dy Ngo vs. Li Seng Giap and Sons, Inc; Torts G.R. No.

170596 November 28, 2008 Facts: Petitioner spouses Ngo Sin Sing and Ticia Dy Ngo owned a lot. They decided to construct a 5storey concrete building thereon, the NSS Building, and for this project, they contracted the services of Contech Construction Technology Development Corporation (Contech) as their General Contractor. Adjacent to their lot is a semi-concrete building known as the Li Seng Giap Building (LSG Building), owned by Li Seng Giap & Sons, Inc. (respondent). During the construction of the NSS Building, the respondent, through its general manager, John T. Lee, received complaints from their tenants about defects in the building. There were cracks appearing on the floors, the steel door was bent, and concrete slabs of the walls were falling apart. An inspection of the premises revealed that the excavation made by Contech on petitioners' land was close to the common boundary, exposing the foundation of the LSG Building. As a gesture of goodwill to their neighbors, the petitioners assured the respondent that repairs would be undertaken by their contractor. In December 1979, Contech announced that it had completed repairs on the LSG Building. Notwithstanding this assurance, more defects in the LSG Building appeared, i.e., tilted floors, cracks in the columns and beams, distorted window frames. Apparently, the LSG Building was continuously sagging and the respondent felt that it was no longer safe to occupy the building. Respondents as owner of LSG Building demanded that petitioner should handle the cost of rebuilding the said building. the latter refused hence a case was filed. It was decided against the petitioner. On appeal petitioner, pleaded that its liability be tempered since the owner of LSG was also contributorily negligent. Issue: Whether or not the liability of petitioner be mitigated due to the contributory negligence of respondent. Ruling: Yes, during the trial i was found out that the foundation of the LSG building building is the same as the foundation of the previous building when it was bought from the previous owners. Respondents only renovated the same and add additional 2 floors. Clearly then, the foundation that is too old cannot hold a 4 storey building, more so when the adjacent lot was excavated by petitioners. Thus, considering that respondent's negligence must have necessarily contributed to the sagging of the LSG Building, a reduction of the award is warranted. We, therefore, agree with the trial court that respondent should likewise share in the cost of the restructuring of its building. The ruling is justified by the Doctrine of "Supervening Negligence" which states that where both parties are negligent but the negligence of one is appreciably later in time than 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. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of or bar a defense against 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. In the case at bench, the negligence of Contech caused the damages sustained by the building,

which did not discharge its duty of excavating eight (8) inches away from the boundary line from the lot of plaintiff with insufficient lateral and subjacent support. Negotiable Instruments Case Digest: Allied Banking Corp. V. Lim Sio Wan (2008) G.R. No. 133179 March 27, 2008 Lessons Applicable: Liabilities of the Parties (Negotiable Instruments Law) FACTS: Lim Sio Wan (deposited 1st money market) > Allied Bank > (pre-terminated and withdrawn) Santos > (through forged indorsement of Lim Sio Wan deposited in FCC account) Metrobank > (release in exchange of undertaking of reimbursement) FCC > (through Santos, as officer of Producers bank, deposited money market) Producers Bank September 21, 1983: FCC had deposited a money market placement for P 2M with Producers Bank Santos was the money market trader assigned to handle FCCs account Such deposit is evidenced by Official Receipt and a Letter When the placement matured, FCC demanded the payment of the proceeds of the placement November 14, 1983: Lim Sio Wan deposited with Allied Banking Corporation (Allied) amoney market placement of P 1,152,597.35 for a term of 31 days December 5, 1983: a person claiming to be Lim Sio Wan called up Cristina So, an officer of Allied, and instructed the latter to pre-terminate Lim Sio Wans money market placement, to issue a managers check representing the proceeds of the placement, and to give the check to Deborah Dee Santos who would pick up the check. Lim Sio Wan described the appearance of Santos Santos arrived at the bank and signed the application form for a managers check to be issued The bank issued Managers Check representing the proceeds of Lim Sio Wans money market placement in the name of Lim Sio Wan, as payee, cross-checked "For Payees Account Only" and given to Santos Allied managers check was deposited in the account of Filipinas Cement Corporation (FCC) at Metropolitan Bank and Trust Co. (Metrobank), with the forged signature of Lim Sio Wan as indorser Metrobank stamped a guaranty on the check, which reads: "All prior endorsements and/or lack of endorsement guaranteed." Upon the presentment of the check, Allied funded the check even without checking the authenticity of Lim Sio Wans purported indorsement. amount on the face of the check was credited to the account of FCC December 9, 1983: Lim Sio Wan deposited with Allied a second money market placement to mature on January 9, 1984

December 14, 1983: upon the maturity date of the first money market placement, Lim Sio Wan went to Allied to withdraw it. She was then informed that the placement had been pre-terminated upon her instructions which she denied Lim Sio Wan filed with the RTC against Allied to recover the proceeds of her first money market placement Allied filed a third party complaint against Metrobank and Santos Metrobank filed a fourth party complainagainst FCC FCC for its part filed a fifth party complaint against Producers Bank. Summonses were duly served upon all the parties except for Santos, who was no longer connected with Producers Bank May 15, 1984: Allied informed Metrobank that the signature on the check was forged Metrobank withheld the amount represented by the check from FCC. Metrobank agreed to release the amount to FCC after the FCC executed an undertaking, promising to indemnify Metrobank in case it was made to reimburse the amount Lim Sio Wan thereafter filed an amended complaint to include Metrobank as a party-defendant, along with Allied. RTC : Allied Bank to pay Lim Sio Wan plus damages and atty. fees Allied Banks cross-claim against Metrobank is DISMISSED. Metrobanks third-party complaint as against Filipinas Cement Corporation is DISMISSED Filipinas Cement Corporations fourth-party complaint against Producers Bank is DISMISSED CA: Modified. Allied Banking Corporation to pay 60% and Metropolitan Bank and TrustCompany 40% ISSUE: W/N Allied should be solely liable to Lim Sio Wan. HELD: YES. CA affirmed. Modified Porudcers Bank to reimburse Allied and Metrobank. Articles 1953 and 1980 of the Civil Code Art. 1953. A person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality.

Art. 1980. Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. bank deposit is in the nature of a simple loan or mutuum money market is a market dealing in standardized short-term credit instruments (involving large amounts) where lenders and borrowers do not deal directly with each other but through a middle man or dealer in open market. In a money market transaction, the investor is a lender who loans his money to a borrower through a middleman or dealer. Lim Sio Wan, as creditor of the bank for her money market placement, is entitled to payment upon her request, or upon maturity of the placement, or until the bank is released from its obligation as debtor GR: collecting bank which indorses a check bearing a forged indorsement and presents it to the drawee bank guarantees all prior indorsements, including the forged indorsement itself, and ultimately should be held liable therefor EX: when the issuance of the check itself was attended with negligence. Allied negligent in issuing the managers check and in transmitting it to Santos without even a written authorization Allied did not even ask for the certificate evidencing the money market placement or call up Lim Sio Wan at her residence or office to confirm her instructions. Allieds negligence must be considered as the proximate cause of the resulting loss. When Metrobank indorsed the check without verifying the authenticity of Lim Sio Wans indorsement and when it accepted the check despite the fact that it was cross-checked payable to payees account only contributed to the easier release of Lim Sio Wans money and perpetuation of the fraud Given the relative participation of Allied and Metrobank to the instant case, both banks cannot be adjudged as equally liable. Hence, the 60:40 ratio of the liabilities of Allied and Metrobank, as ruled by the CA, must be upheld. FCC, having no participation in the negotiation of the check and in the forgery of Lim Sio Wans indorsement, can raise the real defense of forgery as against both banks Producers Bank was unjustly enriched at the expense of Lim Sio Wan Producers Bank should reimburse Allied and Metrobank for the amounts ordered to pay Lim Sio Wan

Corinthian Gardens Association vs Spouses Tanjangcos andSpouses Cuasos June 27, 2008Nachura, J. Torts and Damages:* (ELEMENTS/REQUISITES) In every tort case filed under Article 2176, plaintiff has to prove by apreponderance of evidence:(1) the damages suffered by the plaintiff;(2) the fault or negligence of the defendant or some other person forwhose act he must respond; and(3) the connection of cause and effect between the fault or negligenceand the damages incurred.* (DEFINITION) A negligent act is an inadvertent act; it may be merely carelessly donefrom a lack of ordinary prudence and may be one which creates asituation involving an unreasonable risk to another because of theexpectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in theactor's position, in the same or similar circumstances, would foreseesuch an appreciable risk of harm to others as to cause him not to do theact or to do it in a more careful manner.* (TEST) The test to determine the existence of negligence in a particular casemay be stated as follows: Did the defendant in committing the allegednegligent act use that reasonable care and caution which an ordinaryperson would have used in the same situation?Facts: Tanjangcos owned joined lots in Corinthian Gardens. Spouse Cuasos, on theother hand, own a lot adjacent to the formers.Before the Cuasos constructed their house, it was surveyed by De Dios Realty(surveyor) as per recommendation of the petitioner association. Later on, thepetitioner approved the plans made by CB Paras Construction (builder).Corinthian conducted periodic ocular inspections in order to determinecompliance with the approved plans pursuant to the Manual of Rules andRegulations of Corinthian (MRRC). Unfortunately, after construction, theperimeter fence of the Cuasos encroached upon the Tanjangcos lot.Issue: Whether Corinthian was negligent under the circumstances and, if so,whether such negligence contributed to the injury suffered by the Tanjangcos.Decision:Corinthian is negligent. Its approval of the plan is tainted with negligence.Ratio:Petitioner is found negligent under the TEST. The MRRC provides that no newconstructions can be started without the approval of the petitioner association. Thus, it is reasonable to assume that Corinthian, through its representative, inthe approval of building plans, and in the conduct of periodic inspections of ongoing construction projects within the subdivision, is responsible in insuringcompliance with the approved plans, inclusive of the construction of perimeterwalls.Corinthians failure to prevent the encroachment of the Cuasos perimeterwall into Ta njangcos property despite the inspection conducted constitutes negligence and, at the very least, contributed to the injurysuffered by the Tanjangcos.NB1.The court here categorized the case as falling under tort. Take note that thereare discussions regarding similarity or difference of a QD and a tort. (justthinking out loud)2.This is another case where the court ruled using Article 2176 despite the factthat there is an existing contractual obligation between the parties. (just athought to ponder on) MANLICLIC v. CALAUNAN FACTS: Philippine Rabbit Bus driven by petitioner Mauricio Manliclic; and owner-type jeep owned by respondentModesto Calaunan and driven by Marcelo Mendoza. the two vehicles collided. The front right side of the PhilippineRabbit Bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall ona ditch with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8 metersfrom point of collision.By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging

petitionerManliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries. Subsequently on 2December 1991, respondent filed a complaint for damages against petitioners Manliclic and PRBLI.Counsel for respondent prayed that the transcripts of stenographic notes (TSNs) of the testimonies of respondentCalaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil case in as much as these witnesses are not available to testify in the civil case. ISSUE: WON the transcripts may be admitted in evidence.HELD: YES. Petitioners argue that the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos should not be admitted in evidence for failure of respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court. For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case. Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimonygiven in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, notbeing a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine the three witnesses in said case.The criminal case was filed exclusively against petitioner Manliclic, subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to thecriminal cases instituted against their employees. Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered inevidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does not conform to the statute is awaiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted. Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves. In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by both petitioners. Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the testimonies of the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair.