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EN BANC
[G.R. No. 12219. March 15, 1918.]
AMADO PICART, plaintiff-appellant, vs. FRANK SMITH,
Jr., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
SYLLABUS
1. NEGLIGENCE; CRITERION FOR DETERMINING
EXISTENCE OF NEGLIGENCE. — The test for determining
whether 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, the law
imposes a duty on the actor to refrain from that course or to take
precaution against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed
by the ignoring of the admonition born of this prevision, is the
constitutive fact in negligence.
2. ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE
NEGLIGENT ACTS. — Where both parties are guilty of
negligence, but the negligent act of one succeeds that of the other
by an appreciable interval of time, the one who has the last
reasonable opportunity 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.
3. ID.; ID.; CASE AT BAR. — The plaintiff was riding a
pony on a bridge. Seeing an automobile ahead he improperly
pulled his horse over to the railing on the right. The driver of the
automobile, however, guided his car toward the plaintiff without
diminution of speed until he was only a few feet away. He then
turned to the right but passed so closely to the horse that the latter
being frightened, jumped around and was killed by the passing
car. Held: That although the plaintiff was guilty of negligence in
being on the wrong side of the bridge, the defendant was
nevertheless civilly liable for the legal damages resulting from
the collision, as he had a fair opportunity to avoid the accident
after he realized the situation created by the negligence of the
plaintiff and failed to avail himself of that opportunity; while the
plaintiff could by no means then place himself in a position of
greater safety.
DECISION
STREET, J p:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,100, as damages
alleged to have been caused by an automobile driven by the
defendant. From a judgment of the Court of First Instance of the
Province of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this action
took place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in
question the plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the defendant approached
from the opposite direction in an automobile, going at the rate of
about ten or twelve miles per hour. As the defendant neared the
bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he
had taken the bridge he gave two more successive blasts, as it
appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard
the warning signals. However, being perturbed by the novelty of
the apparition or the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this
was that he thought he did not have sufficient time to get over to
the other side. The bridge is shown to have a length of about 75
meters and a width of 4.08 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 was 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 was struck
on the hock of the left hind leg by the flange of the car and the
limb was broken. The horse fell and its rider was thrown off with
some violence. From the evidence adduced in the case we believe
that when the accident occurred the free space where the pony
stood between the automobile and the railing of the bridge was
probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which
caused temporary unconsciousness and required medical
attention for several days.
The question presented for decision is whether or not the
defendant in maneuvering his car in the manner above described
was guilty of negligence such as gives rise to a civil obligation to
repair the damage done; and we are of the opinion that he is so
liable. As the defendant started across the bridge, he had the right
to assume that the horse and rider would pass over to the proper
side; but as he moved toward the center of the bridge it was

demonstrated to his eyes that this would not be done; and he must
in a moment have perceived that it was too late for the horse to
cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was
yet some distance away; and from this moment it was not longer
within the power of the plaintiff to escape being run down by
going to a place of greater safety. The control of the situation had
then passed entirely to the defendant; and it was his duty either to
bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of
collision. Instead of doing this, the defendant ran straight on until
he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted
with automobiles, he might get excited and jump under the
conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion,
negligent in the eye of the law.
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in
the same situation? If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in
the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculation cannot
here be of much value but his much can be profitably said:
Reasonable men govern their conduct by the circumstances
which are before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them
to suggest or warn of danger. Could a prudent man, in the case
under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining
the existence of negligence in a given case is this: Conduct is said
to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing the conduct or
guarding against its consequences.
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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 rider as a reasonable consequence of that course.
Under these circumstances the law imposed on the defendant the
duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of
the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that
the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other party.
The decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co.(7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a
bar to recover, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly
against the other party. The defendant company had there
employed the plaintiff, a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At a certain spot near the
water's edge the track gave way by reason of the combined effect
of the weight of the car and the insecurity of the road bed. The
car was in consequence upset; the rails slid off; and the plaintiff's
leg was caught and broken. It appeared in evidence that the
accident was due to the effects of a typhoon which had dislodged
one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the
bed of the track and also that the plaintiff was, at the moment of
the accident, guilty of contributory negligence in walking at the
side of the car instead of being in front or behind. It was held that
while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair,
nevertheless the amount of the damages should be reduced on
account of the contributory negligence of the plaintiff. As will be
seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case
like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage,
we do not feel constrained to attempt to weigh the negligence of
the respective parties in order to apportion the damage according
to the degree of their relative fault. It is enough to say that the
negligence of the defendant was in this case the immediate and

determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special
defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in
the court of a justice of the peace. In this connection it appears
that soon after the accident in question occurred, the plaintiff
caused criminal proceedings to be instituted before a justice of
the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the
defendant was discharged by the magistrate and the proceedings
were dismissed. Conceding that the acquittal of the defendant at a
trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil
liability arising from negligence — a point upon which it is
unnecessary to express an opinion — the action of the justice of
the peace in dismissing the criminal proceeding upon the
preliminary hearing can have no such effect. (See U.S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower
court must be reversed, and judgment is here rendered that the
plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of both 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 characters as not to be recoverable. So
ordered.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ.,
concur.
Johnson, J., reserves his vote.
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 traveller 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
defendant succeeded that of the plaintiff by an appreciable
interval of time, and that at that moment the plaintiff had no
opportunity to avoid the accident. consequently, the "last clear
chance" rule is applicable. In other words, when a traveller 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
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of the injury and will not preclude a recovery. (Note especially
Aiken vs. Metcalf [1917], 102 Atl., 330.)
2.[G.R. No. 39587. March 24, 1934.]
ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs. THE
MANILA RAILROAD COMPANY, defendant-appellant.
Harvey & O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
SYLLABUS
1. NEGLIGENCE; RAILROAD COMPANY;
DAMAGES. — A railroad company which does not install a
semaphore at a crossing and does not see to it that its flagman
and switchman faithfully complies with his duty of remaining at
the crossing when a train arrives, is guilty of negligence and is
civilly liable for damages suffered by a motorist and his family
who cross its line without negligence on their part.
2. ID.; ID.; ID.; AMOUNT OF DAMAGES. — An
indemnity of P10,000 for a permanent deformity on the face and
left leg, suffered by a young and beautiful society woman, is not
excessive.
3. ID.; ID.; ID.; ID. — an indemnity of P5,000 for a
permanent deformity on the face and legs of a four-year old girl
belonging to a well-to-do family, is not excessive.
4. ID.; ID.; ID.; PROOF OF DAMAGES. — In order that
a husband may recover damages for deprivation of his wife's
assistance during her illness from an accident, it is necessary for
him to prove the existence of such assistance and his wife's
willingness to continue rendering the same had she not been
prevented from so doing by her illness.
DECISION
VILLA-REAL, J p:
This case involves two appeals, one by the defendant the Manila
Railroad Company, and the other by the plaintiffs Aleko E. Lilius
et al., from the judgment rendered by the Court of First Instance
of Manila, the dispositive part of which reads as follows:
"Wherefore, judgment is rendered ordering the defendant
company to pay to the plaintiffs, for the purposes above stated,
the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a joint
action, it must be understood that of the amount adjudicated to
the said plaintiffs in this judgment, the sum of P10,000
personally belongs to the plaintiff Sonja Maria Lilius; the sum of
P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to
Dr. Marfori of the Calauan Hospital, Province of Laguna, and the
balance to the plaintiff Aleko E. Lilius."

In support of its appeal, the appellant the Manila Railroad
Company assigns nine alleged errors as committed by the trial
court in its said judgment, which will be discussed in the course
of this decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al.,
in turn, assign two alleged errors as committed by the same court
a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et
al., praying, under the facts therein alleged, that the Manila
Railroad Company be ordered to pay to said plaintiffs, by way of
indemnity for material and moral damages suffered by them
through the fault and negligence of the said defendant entity's
employees, the sum of P50,000 plus legal interest thereon from
the date of the filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the
complaint, denies each and every allegation thereof and, by way
of special defense, alleges that the plaintiff Aleko E. Lilius, with
the cooperation of his wife and co-plaintiff, negligently and
recklessly drove his car, and prays that it be absolved from the
complaint.
The following facts have been proven at the trial, some without
question and the others by a preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-
known and reputed journalist, author and photographer. At the
time of the collision in question, he was a staff correspondent in
the Far East of the magazines The American Weekly of New
York and The Sphere of London.
Some of his works have been translated into various languages.
He had others in preparation when the accident occurred.
According to him, his writings netted him a monthly income of
P1,500. He utilized the linguistic ability of his wife Sonja Maria
Lilius, who translated his articles and books into English,
German, and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff,
his wife Sonja Maria Lilius, and his 4-year old daughter Brita
Marianne Lilius, left Manila in their Stude-baker car — driven by
the said plaintiff Aleko E. Lilius — for the municipality of
Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the
first time that he made said trip although he had already been to
many places, driving his own car, in and outside the Philippines.
Where the road was clear and unobstructed, the plaintiff drove at
the rate of from 19 to 25 miles an hour. Prior thereto, he had
made the trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no knowledge of the
existence of a railroad crossing at Dayap. Before reaching the
crossing in question, there was nothing to indicate its existence
and inasmuch as there were many houses, shrubs and trees along
the road, it was impossible to see an approaching train. At about
seven or eight meters from the crossing, coming from Calauan,
Page 4 of 66
the plaintiff saw an autotruck parked on the left side of the road.
Several people, who seemed to have alighted from the said truck,
were walking on the opposite side. He slowed down to about 12
miles an hour and sounded his horn for the people to get out of
the way. With his attention thus occupied, he did not see the
crossing but he heard two short whistles. Immediately afterwards,
he saw a huge black mass fling itself upon him, which turned out
to be locomotive No. 713 of the defendant company's train
coming eastward from Bay to Dayap station. The locomotive
struck the plaintiff's car right in the center. After dragging the
said car a distance of about ten meters, the locomotive threw it
upon a siding. The force of the impact was so great that the
plaintiff's wife and daughter were thrown from the car and were
picked up from the ground unconscious and seriously hurt. In
spite of the efforts of engineer Andres Basilio, he was unable to
stop the locomotive until after it had gone about seventy meters
from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's
Hospital in the City of Manila where they were treated by Dr.
Waterous. The plaintiff Aleko E. Lilius suffered from a fractured
nose, a contusion above the left eye and a lacerated wound on the
right leg, in addition to multiple contusions and scratches on
various parts of the body. As a result of the accident, the said
plaintiff was highly nervous and very easily irritated, and for
several months he had great difficulty in concentrating his
attention on any matter and could not write articles nor short
stories for the newspapers and magazines to which he was a
contributor, thus losing for some time his only means of
livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the
pelvic bone, the tibia and fibula of the right leg, below the knee,
and received a large lacerated wound on the forehead. She
underwent two surgical operations on the left leg for the purpose
of joining the fractured bones but said operations
notwithstanding, the leg in question still continues deformed. In
the opinion of Dr. Waterous, the deformity is permanent in
character and as a result the plaintiff will have some difficulty in
walking. The lacerated wound, which she received on her
forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds,
one on the forehead and the other on the left side of the face, in
addition to fractures of both legs, above and below the knees. Her
condition was serious and, for several days, she was hovering
between life and death. Due to a timely and successful surgical
operation, she survived her wounds. The lacerations received by
the child have left deep scars which will permanently disfigure
her face, and because of the fractures of both legs, although now
completely cured, she will be forced to walk with some difficulty
and continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the
existence of the crossing, nor was there anybody to warn the
public of approaching trains. The flagman or switchman arrived
after the collision, coming from the station with a red flag in one

hand and a green one in the other, both of which were wound on
their respective sticks. The said flagman and switchman had
many times absented himself from his post at the crossing upon
the arrival of a train. The train left Bay station a little late and
therefore traveled at great speed.
Upon examination of the oral as well as of the documentary
evidence which the parties presented at the trial in support of
their respective contentions, and after taking into consideration
all the circumstances of the case, this court is of the opinion that
the accident was due to negligence on the part of the defendant-
appellant company, for not having had on that occasion any
semaphore at the crossing at Dayap, to serve as a warning to
passers-by of its existence in order that they might take the
necessary precautions before crossing the railroad; and, on the
part of its employees — the flagman and switchman, for not
having remained at his post at the crossing in question to warn
passers-by of the approaching train; the stationmaster, for failure
to send the said flagman and switchman to his post on time; and
the engineer, for not having taken the necessary precautions to
avoid an accident, in view of the absence of said flagman and
switchman, by slackening his speed and continuously ringing the
bell and blowing the whistle before arriving at the crossing.
Although it is probable that the defendant-appellant entity
employed the diligence of a good father of a family in selecting
its aforesaid employees, however, it did not employ such
diligence in supervising their work and the discharge of their
duties because, otherwise, it would have had a semaphore or sign
at the crossing and, on previous occasions as well as on the night
in question, the flagman and switchman would have always been
at his post at the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law requires in
order to avoid damage, is not confined to the careful and prudent
selection of subordinates or employees but includes inspection of
their work and supervision of the discharge of their duties.
However, in order that a victim of an accident may recover
indemnity for damages from the person liable therefor, it is not
enough that the latter has been guilty of negligence, but it is also
necessary that the said victim has not, through his own
negligence, contributed to the accident, inasmuch as nobody is a
guarantor of his neighbor's personal safety and property, but
everybody should look after them, employing the care and
diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in order
to avoid any damage. It appears that the herein plaintiff-appellant
Aleko E. Lilius took all precautions which his skill and the
presence of his wife and child suggested to him in order that his
pleasure trip might be enjoyable and have a happy ending,
driving his car at a speed which prudence demanded according to
the circumstances and conditions of the road, slackening his
speed in the face of an obstacle and blowing his horn upon seeing
persons on the road, in order to warn them of his approach and
request them to get out of the ways, as he did when he came upon
the truck parked on the left hand side of the road seven or eight
meters from the place where the accident occurred, and upon the
Page 5 of 66
persons who appeared to have alighted from the said truck. If he
failed to stop, look and listen before going over the crossing, in
spite of the fact that he was driving at 12 miles per hour after
having been free from obstacles, it was because, his attention
having been occupied in attempting to go ahead, he did not see
the crossing in question, nor anything, nor anybody indicating its
existence, as he knew nothing about it beforehand. The first and
only warning, which he received of the impending danger, was
two short, blows from the whistle of the locomotive immediately
preceding the collision and when the accident had already
become inevitable.
In view of the foregoing considerations, this court is of the
opinion that the defendant the Manila Railroad Company alone is
liable for the accident by reason of its own negligence and that of
its employees, for not having employed the diligence of a good
father of a family in the supervision of the said employees in the
discharge of their duties.
The next question to be decided refers to the sums of money
fixed by the court a quo as indemnities for damages which the
defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although
this court believes his claim of a net income of P1,500 a month to
be somewhat exaggerated, however, the sum of P5,000,
adjudicated to him by the trial court as indemnity for damages, is
reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs
by way of indemnity for damages, the different items thereof
representing doctor's fees, hospital and nursing services, loss of
personal effects and torn clothing, have duly been proven at the
trial and the sum in question is not excessive, taking into
consideration the circumstances in which the said expenses have
been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria
Lilius, wife of the plaintiff Aleko E. Lilius is — in the language
of the court, which saw her at the trial — "young and beautiful
and the big scar, which she has on her forehead caused by the
lacerated wound received by her from the accident, disfigures her
face and that the fracture of her left leg has caused a permanent
deformity which renders it very difficult for her to walk", and
taking into further consideration her social standing, neither is the
sum of P10,000, adjudicated to her by the said trial court by way
of indemnity for patrimonial and oral damages, excessive. In the
case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the
plaintiff Narciso Gutierrez was fractured as a result of a collision
between the autobus in which he was riding and the defendant's
car, which fracture required medical attendance for a
considerable period of time. On the day of the trial the fracture
had not yet completely healed but it might cause him permanent
lameness. The trial court sentenced the defendants to indemnity
him in the sum of P10,000 which this court reduced to P5,000, in
spite of the fact that the said plaintiff therein was neither young
nor good-looking, nor had be suffered any facial deformity, nor

did he have the social standing that the herein plaintiff-appellant
Sonja Maria Lilius enjoys.
As to the indemnity of P5,000 in favor of the child Brita
Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria
Lilius, neither is the same excessive, taking into consideration the
fact that the lacerations received by her have left deep scars that
permanently disfigure her face and that the fractures of both her
legs permanently render it difficult for her to walk freely,
continuous extreme care being necessary in order to keep her
balance in addition to the fact that all of this unfavorably and to a
great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative to
the insufficiency of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for damages consisting
in the loss of his income as journalist and author as a result of his
illness. This question has impliedly been decided in the negative
when the defendant-appellant entity's petition for the reduction of
said indemnity was denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E.
Lilius as damages for the loss of his wife's services in his
business as journalist and author, which services consisted in
going over his writings, translating them into English, German
and Swedish, and acting as his secretary, in addition to the fact
that such services formed part of the work whereby he realized a
net monthly income of P1,500, there is no sufficient evidence of
the true value of said services nor to the effect that he needed
them during her illness and had to employ a translator to act in
her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of
P2,500 for the loss of what is called Anglo-Saxon common law
"consortium" of his wife, that is, "her services, society and
conjugal companionship", as a result of personal injuries which
she had received from the accident now under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256),
this court, interpreting the provisions of the Civil Marriage Law
of 1870, in force in these Islands with reference to the mutual
rights and obligations of the spouses contained in articles 44-48
thereof, said as follows:
"The above quoted provisions of the Law of Civil Marriage and
the Civil Code fix the duties and obligations of the spouses. The
spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey
and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign
country . . ."
Therefore, under the law and the doctrine of this court, one of the
husband's rights is to count on his wife's assistance. This
assistance comprises the management of the home and the
performance of household duties, including the care and
Page 6 of 66
education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of
which he is the head. When the wife's mission was circumscribed
to the home, it was not difficult to assume, by virtue of the
marriage alone, that she performed all the said tasks and her
physical incapacity always redounded to the husband's prejudice
inasmuch as it deprived him of her assistance. However,
nowadays when women, in their desire to be more useful to
society and to the nation, are demanding greater civil rights and
are aspiring to become man's equal in all the activities of life,
commercial and industrial, professional and political, many of
them spending their time outside the home, engaged in their
businesses, industry, profession and within a short time, in
politics, and entrusting the care of their home to a housekeeper,
and their children, if not to a nursemaid, to public or private
institutions which take charge of young children while their
mothers are at work, marriage has ceased to create the
presumption that a woman complies with the duties to her
husband and children, which the law imposes upon her, and he
who seeks to collect indemnity for damages resulting from
deprivation of her domestic services must prove such services. In
the case under consideration, apart from the services of his wife
Sonja Maria Lilius as translator and secretary, the value of which
has not been proven, the plaintiff Aleko E. Lilius has not
presented any evidence showing the existence of domestic
services and their nature, rendered by her prior to the accident in
order that it may serve as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and
conjugal companionship are purely personal and voluntary acts
which neither of the spouses may be compelled to render (Arroyo
vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party
claiming indemnity for the loss of such services to prove that the
person obliged to render them had done so before he was injured
and that he would be willing to continue rendering them had he
not been prevented from so doing.
In view of the foregoing considerations this court is of the
opinion and so holds: (1) That a railroad company which has not
installed a semaphore at a crossing and does not see to it that its
flagman and switchman faithfully complies with his duty of
remaining at the crossing when a train arrives, is guilty of
negligence and is civilly liable for damages suffered by a
motorist and his family who cross its line without negligence on
their part; (2) that an indemnity of P10,000 for a permanent
deformity on the face and on the left leg, suffered by a young and
beautiful society woman, is not excessive; (3) that an indemnity
of P5,000 for a permanent deformity on the face and legs of a
four-year old girl belonging to a well-to-do family, is not
excessive; and (4) that in order that a husband may recover
damages for deprivation of his wife's assistance during her illness
from an accident, it is necessary for him to prove the existence of
such assistance and his wife's willingness to continue rendering it
had she not been prevented from so doing by her illness.

The plaintiffs-appellants are entitled to interest of 6 per cent per
annum on the amount of the indemnities adjudicated to them,
from the date of the appealed, judgment until this judgment
becomes final, in accordance with the provisions of section 510
of Act No. 190.
Wherefore, not finding any error in the judgment appealed from,
it is hereby affirmed in toto, with the sole modification that
interest of 6 per cent per annum from the date of the appealed
judgment until this judgment becomes final will be added to the
indemnities granted, with the costs of both instances against the
appellant. So ordered.
Malcolm, Hull, Imperial, and Gaddard, JJ., concur.
3.FIRST DIVISION
[G.R. No.L-40570. January 30, 1976.]
TEODORO C. UMALI, petitioner, vs. HON. ANGEL
BACANI, in his capacity as Presiding Judge of Branch IX of
the Court of First Instance of Pangasinan and FIDEL H.
SAYNES, respondents.
Julian M. Armas for the petitioner.
Antonino de los Reyes for the private respondent.
SYNOPSIS
Defendant as owner and manager of the Alcala Electric Plant was
ordered to pay damages by the lower court which found the death
by electrocution of a 3 year old boy as due to defendant's fault or
negligence. Petitioner claims that he could not be held liable
under the concept of quasi-delict or tort as owner and manager
because the proximate cause of the boy's death by electrocution
could not be due to any negligence on his part, but rather to a
fortuitous event — the storm that caused the banana plants to fall
and cut the electric line — pointing out the absence of negligence
on the part of his employee who tried to have the line repaired
and the presence of negligence of the parents of the child in
allowing him to leave his house during that time. The Supreme
Court found that a series of negligence on the part of the
defendant's employee resulted in the death of the victim by
electrocution, to wit: the defendant did not cut down the banana
plants which are taller than the electric posts to eliminate that
source of danger to the electric line; that after the storm they did
not cut off the flow of electricity from the lines pending
inspection of the wires to see if they had been cut; and lastly, in
not taking precautions to prevent anybody from approaching the
live wires.
Decision affirmed.
SYLLABUS
1. DAMAGES; QUASI-DELICT; NEGLIGENCE. — Art.
2179 of the Civil Code provides that if the negligence of the
plaintiff was only contributory, the immediate and proximate
Page 7 of 66
cause of the injury being the defendant's lack of care, the plaintiff
may recover damages, but the court shall mitigate the damages to
be awarded. This law may be availed of by the petitioner but does
not exempt him from liability.
2. ID.; ID.; ID.; EMPLOYER AND EMPLOYEE;
NEGLIGENCE OF EMPLOYEE IS PRESUMED TO BE THE
NEGLIGENCE OF EMPLOYER. — The negligence of the
employee is presumed to be negligence of the employer because
the employer is supposed to exercise supervision over the work
of the employee. The liability of the employer is primary and
direct. In fact the proper defense for the employer to raise so that
he may escape liability is to prove that he exercised the diligence
of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising
them over their work.
DECISION
ESGUERRA, J p:
Petition for certiorari to review the decision of the Court of First
Instance of Pangasinan, Branch IX, in Civil Case No. U-2412,
entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C.
Umali, defendant-appellant", which found the death by
electrocution of Manuel Saynes, a boy of 3 years and 8 months,
as "due to the fault or negligence of the defendant (Umali) as
owner and manager of the Alcala Electric Plant; although the
liability of defendant is mitigated by contributory negligence of
the parents of the boy "in not providing for the proper and
adequate supervision and control over their son." The dispositive
part of the decision reads as follows: cdrep
"Wherefore, the Court hereby renders judgment in favor of the
plaintiff by ordering the defendant to pay to the plaintiff the sum
of Five Thousand Pesos (P5,000.00) for the death of his son,
Manuel Saynes; the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection with the
burial of said deceased child, and the further sum of Three
Thousand Pesos (P3,000.00) for moral damages and Five
Hundred (P500.00) Pesos as reasonable attorney's fee, or a total
of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay
the costs of this suit. It Is So Ordered."
Undisputed facts appearing of record are:
"On May 14, 1972, a storm with strong rain hit the Municipality
of Alcala, Pangasinan, which started from 2:00 o'clock in the
afternoon and lasted up to about midnight of the same day.
During the storm, the banana plants standing on an elevated
ground along the barrio road in San Pedro Ili of said municipality
and near the transmission line of the Alcala Electric Plant were
blown down and fell on the electric wire. As a result, the live
electric wire was cut, one end of which was left hanging on the
electric post and the other fell to the ground under the fallen
banana plants.

"On the following morning, at about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Ili who was passing by saw the
broken electric wire and so he warned the people in the place not
to go near the wire for they might get hurt. He also saw Cipriano
Baldomero, a laborer of the Alcala Electric Plant near the place
and notified him right then and there of the broken line and asked
him to fix it, but the latter told the barrio captain that he could not
do it but that he was going to look for the lineman to fix it.
"Sometime after the barrio captain and Cipriano Baldomero had
left the place, a small boy of 3 years and 8 months old by the
name of Manuel P. Saynes, whose house is just on the opposite
side of the road, went to the place where the broken line wire was
and got in contact with it. The boy was electrocuted and he
subsequently died. It was only after the electrocution of Manuel
Saynes that the broken wire was fixed at about 10:00 o'clock on
the same morning by the lineman of the electric plant."
Petitioner claims that he could not be liable under the concept of
quasi-delict or tort as owner and manager of the Alcala Electric
Plant because the proximate cause of the boy's death by
electrocution could not be due to any negligence on his part, but
rather to a fortuitous event — the storm that caused the banana
plants to fall and cut the electric line — pointing out the absence
of negligence on the part of his employee Cipriano Baldomero
who tried to have the line repaired and the presence of negligence
of the parents of the child in allowing him to leave his house
during that time. prLL
A careful examination of the record convinces Us that a series of
negligence on the part of defendant's employees in the Alcala
Electric Plant resulted in the death of the victim by electrocution.
First, by the very evidence of the defendant, there were big and
tall banana plants at the place of the incident standing on an
elevated ground which were about 30 feet high and which were
higher than the electric post supporting the electric line, and yet
the employees of the defendant who, with ordinary foresight,
could have easily seen that even in case of moderate winds the
electric line would be endangered by banana plants being blown
down, did not even take the necessary precaution to eliminate
that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the
possible damage the storm of May 14, 1972, could have caused
their electric lines, thus becoming a possible threat to life and
property, they did not cut off from the plant the flow of electricity
along the lines, an act they could have easily done pending
inspection of the wires to see if they had been cut. Third,
employee Cipriano Baldomero was negligent on the morning of
the incident because even if he was already made aware of the
live cut wire, he did not have the foresight to realize that the
same posed a danger to life and property, and that he should have
taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises
because what was foremost in his mind was the repair of the line,
obviously forgetting that if left unattended to it could endanger
life and property.
Page 8 of 66
On defendant's argument that the proximate cause of the victim's
death could be attributed to the parents' negligence in allowing a
child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on
the part of defendants' employees resulting in a live wire lying on
the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an
innocent child, could have met the same fate that befell the
victim. It may be true, as the lower Court found out, that the
contributory negligence of the victim's parents in not properly
taking care of the child, which enabled him to leave the house
alone on the morning of the incident and go to a nearby place
(cut wire was very near the house where victim was living)
where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but We cannot agree with petitioner's
theory that the parents' negligence constituted the proximate
cause of the victim's death because the real proximate cause was
the fallen live wire which posed a threat to life and property on
that morning due to the series of negligence adverted to above
committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it.
Stated otherwise, even if the child was allowed to leave the house
unattended due to the parents' negligence, he would not have died
that morning where it not for the cut live wire he accidentally
touched. cdphil
Art. 2179 of the Civil Code provides that if the negligence of the
plaintiff (parents of the victim in this case) was only contributory,
the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be awarded. This law
may be availed of by the petitioner but does not exempt him from
liability.
Petitioner's liability for injury caused by his employees'
negligence is well defined in par. 4, of Article 2180 of the Civil
Code, which states:
"The owner and manager of the establishment or enterprise are
likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or on
the occasion of their functions."
The negligence of the employee is presumed to be the negligence
of the employer because the employer is supposed to exercise
supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan
and Court of Appeals, 107 Phil. 109). In fact the proper defense
for the employer to raise so that he may escape liability is to
prove that he exercised the diligence of the good father of the
family to prevent damage not only in the selection of his
employees but also in adequately supervising them over their
work. This defense was not adequately proven as found by the
trial Court, and We do not find any sufficient reason to deviate
from its finding.

Notwithstanding diligent efforts, We fail to find any reversible
error committed by the trial Court in this case, either in its
appreciation of the evidence on questions of facts or on the
interpretation and application of laws governing quasi-delicts and
liabilities emanating therefrom. The inevitable conclusion is that
no error amounting to grave abuse of discretion was committed
and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27,
1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz Palma and Martin, JJ.,
concur.
4.EN BANC
[G.R. No.L-21291. March 28, 1969.]
PRECIOLITA V. CORLISS, plaintiff-appellant, vs. THE
MANILA RAILROAD CO., defendant-appellee.
Moises C .Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
SYLLABUS
1. REMEDIAL LAW; APPEALS; FINDING OF FACT
OF TRIAL COURT BINDING ON APPELLATE COURT;
INSTANT CASE. — Plaintiff-appellant filed against defendant-
appellee Manila Railroad Company a complaint for recovery of
damages for the death of the former's husband resulting from a
collision between the jeep he was driving and defendant
appellee's locomotive. After trial, the lower court dismissed the
complaint and concluded that the accident was the victim's own
doing; and that there was no negligence on the part of defendant-
appellee. Held: The decision appealed from should be affirmed,
the finding of the trial court having been arrived at after a careful
judicial appraisal and scrutiny of the evidence of record.
2. ID.; ID.; ID.; PRESUMPTION OF CORRECTNESS
OF LOWER COURT'S DECISION. — The lower court's
judgment has in its favor the presumption of correctness. It is
entitled to great respect. After all, the lower court had the
opportunity of weighing carefully what was testified to and
apparently did not neglect it. There is no affront to justice then if
its finding be accorded acceptance, subject of course to the
contingency of ultimate reversal if error or errors, substantial in
character, be shown in the conclusion thus arrived at. It is a fair
statement of the governing principle to say that the appellate
function is exhausted when there is found to be rational basis for
the result reached by the trial court.
3. CIVIL LAW; DAMAGES; LIABILITY FOR ACTS
CAUSING DAMAGE TO ANOTHER. — The Civil Code is
Page 9 of 66
clear that whoever by act or omission causes damage to another,
there being negligence, is under obligation to pay for the damage
done. Unless it could be satisfactorily shown, therefore, that
defendant-appellee was guilty of negligence then it could not be
held liable.
4. ID.; ID.; ID.; FACTORS TO CONSIDER WHETHER
THERE IS NEGLIGENCE. — The factors that enter the
judgment are too many and diverse for this court to imprison
them in a formula sufficient of itself to yield the correct answer
to the multi-faceted problems the question of negligence possess.
Every case must be dependent on its facts. The circumstances
indicative of lack of due care must be judged in the light of what
could reasonably be expected of the parties. If the objective
standard of prudence be met, then negligence is ruled out.
5. ID.; ID.; ID.; EACH NEGLIGENCE CASE MUST BE
DECIDED IN ACCORDANCE WITH THE PECULIAR
CIRCUMSTANCES. — Each and every case on questions of
negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and
fast rule. There must be that observance of that degree of care,
precaution and vigilance which the situation demands.
DECISION
FERNANDO, J p:
Youth, the threshold of life, is invariably accompanied by that
euphoric sense of well-being, and with reason. The future, bright
with promise, looms ahead. One's powers are still to be tested,
but one feels ready for whatever challenge may come his way.
There is that heady atmosphere of self-confidence, at times
carried to excess. The temptation to take risks is there, ever so
often, difficult, if not impossible, to resist. There could be then a
lessening of prudence and foresight, qualities usually associated
with age. For death seems so remote and contingent an event.
Such is not always the case though, and a slip may be attended
with consequences at times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court
when it dismissed the complaint for recovery of damages filed by
plaintiff-appellant, Preciolita V. Corliss, whose husband, the late
Ralph W. Corliss, was, at the tender age of twenty-one, the victim
of a grim tragedy, when the jeep he was driving collided with a
locomotive of defendant-appellee Manila Railroad Company,
close to midnight on the evening of February 21, 1957, at the
railroad crossing in Balibago, Angeles, Pampanga, in front of the
Clark Air Force Base. In the decision appealed from, the lower
court, after summarizing the evidence, concluded that the
deceased "in his eagerness to beat, so to speak, the oncoming
locomotive, took the risk and attempted to reach the other side,
but unfortunately he became the victim of his own
miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out
by the lower court, satisfactory proof to that effect, in its opinion,

being lacking. Hence this appeal direct to us, the amount sought
in the concept of damages reaching the sum of P282,065.40. An
examination of the evidence of record fails to yield a basis for a
reversal of the decision appealed from. We affirm.
According to the decision appealed from, there is no dispute as to
the following: "In December 1956, plaintiff, 19 years of age,
married Ralph W. Corliss, Jr., 21 years of age, . . . ; that Corliss,
Jr. was an air police of the Clark Air Force Base; that at the time
of the accident, he was driving the fatal jeep; that he was then
returning in said jeep, together with a P.C. soldier, to the Base;
and that Corliss, Jr. died of serious burns at the Base Hospital the
next day, while the soldier sustained serious physical injuries and
burns." 2
Then came a summary of the testimony of two of the witnesses
for plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the
plaintiff, substantially declared in his deposition, . . ., that at the
time of the accident, he was awaiting transportation at the
entrance of Clark Field, which was about 40 to 50 yards away
from the tracks and that while there he saw the jeep coming
towards the Base. He said that said jeep slowed down before
reaching the crossing, that it made a brief stop but that it did not
stop — dead stop. Elaborating, he declared that while it was
slowing down, Corliss, Jr. shifted into first gear and that was
what he meant by a brief stop. He also testified that he could see
the train coming from the direction of San Fernando and that he
heard a warning but that it was not sufficient enough to avoid the
accident." 3 Also: "Virgilio de la Paz, another witness of the
plaintiff, testified that on the night of February 21, 1957, he was
at the Balibago checkpoint and saw the train coming from
Angeles and a jeep going towards the direction of Clark Field. He
stated that he heard the whistle of the locomotive and saw the
collision. The jeep, which caught fire, was pushed forward. He
helped the P.C. soldier. He stated that he saw the jeep running
fast and heard the tooting of the horn. It did not stop at the
railroad crossing, according to him." 4
After which reference was made to the testimony of the main
witness for defendant-appellee, Teodorico Capili, "who was at
the engine at the time of the mishap," and who "testified that
before the locomotive, which had been previously inspected and
found to be in good condition, approached the crossing, that is,
about 300 meters away, he blew the siren and repeated it in
compliance with the regulations until he saw the jeep suddenly
spurt, and that although the locomotive was running between 20
and 25 kilometers an hour and although he had applied the
brakes, the jeep was caught in the middle of the tracks." 5
1. The above finding as to the non-existence of negligence
attributable to defendant-appellee Manila Railroad Company
comes to us encased in the armor of what admittedly appears to
be a careful judicial appraisal and scrutiny of the evidence of
record. It is thus proof against any attack unless sustained and
overwhelming. Not that it is invulnerable, but it is likely to stand
firm in the face of even the most formidable barrage.
Page 10 of 66
In the more traditional terminology, the lower court judgment has
in its favor the presumption of correctness. It is entitled to great
respect. After all, the lower court had the opportunity of weighing
carefully what was testified to and apparently did not neglect it.
There is no affront to justice then if its finding be accorded
acceptance, subject of course to the contingency of ultimate
reversal if error or errors, substantial in character, be shown in
the conclusion thus arrived at. It is fair statement of the
governing principle to say that the appellate function is exhausted
when there is found to be a rational basis for the result reached
by the trial court.
As was held in a 1961 decision: "We have already ruled that
when the credibility of witnesses is the one at issue, the trial
court's judgment as to their degree of credence deserves serious
consideration by this Court." 6 An earlier expression of the same
view is found in Jai-Alai Corporation v. Ching Kiat: "After going
over the record, we find no reason for rejecting the findings of
the court below. The questions raised hinge on credibility, and it
is well-settled that in the absence of compelling reasons, its
determination is best left to the trial judge who had the advantage
of hearing the parties testify and of observing their demeanor on
the witness stand." 7
In a 1964 opinion, we adhered to such an approach. Thus:
"'Nothing in the record suggests any arbitrary or abusive conduct
on the part of the trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out by the evidence
presented. We are denied, therefore, the prerogative to disturb
that finding, consonant to the time-honored tradition of this
Tribunal to hold trial judges better situated to make conclusions
on questions of fact.'" 8 On this ground alone we can rest the
affirmance of the judgment appealed from.
2. Nor is the result different even if no such presumption
were indulged in and the matter examined as if we were
exercising original and not appellate jurisdiction. The sad and
deplorable situation in which plaintiff-appellant now finds
herself, to the contrary notwithstanding, we find no reason for
reversing the judgment of the lower court.
This action is predicated on negligence, the Civil Code making
clear that whoever by act or omission causes damage to another,
there being negligence, is under obligation to pay for the damage
done. 9 Unless it could be satisfactorily shown, therefore, that
defendant- appellee was guilty of negligence then it could not be
held liable. The crucial question, therefore, is the existence of
negligence.
The above Civil Code provision, which is reiteration of that
found in the Civil Code of Spain, formerly applicable in this
jurisdiction, 10 had been interpreted in earlier decisions. Thus, in
Smith v. Cadwallader Gibson Lumber Co., 11 Manresa was cited
to the following effect: "'Among the questions most frequently
raised and upon which the majority of cases have been decided
with respect to the application of this liability, are those referring
to the determination of the damage or prejudice, and to the fault

or negligence of the person responsible therefor. These are the
two indispensable factors in the obligations under discussion, for
without damage or prejudice there can be no liability, and
although this element is present no indemnity can be awarded
unless arising from some person's fault or negligence.'"
Negligence was defined by us in two 1912 decisions, United
States v. Juanillo 12 and United States v. Barias 13 Cooley's
formulation was quoted with approval in both the Juanillo and
Barias decisions. Thus: "Judge Cooley, in his work on Torts (3d
ed.), Sec. 1324, defines negligence to be: 'The failure to observe
for the protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury.'" There was
likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus:
"Negligence is want of the care required by the circumstances. It
is a relative or comparative, not an absolute, term and its
application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care
under the circumstances."
To repeat, by such a test, no negligence could be imputed to
defendant-appellee, and the action of plaintiff-appellant must
necessary fail. The facts, being what they are, compel the
conclusion that the liability sought to be fastened on defendant-
appellee had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a
reversal of the judgment appealed from on the ground that there
was a failure to appreciate the true situation. Thus the first three
assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the evidence
to maintain the view that the whistle was not sounded and the
brakes not applied at a distance of 300 meters before reaching the
crossing.
The first two assigned errors would make much of the failure of
the lower court to hold that the crossing bars not having been put
down and there being no guard at the gate-house, there still was a
duty on the part of Corliss to stop his jeep to avoid a collision and
that Teodorico Capili, who drove the engine, was not qualified to
do so at the time of the accident. For one cannot just single out a
circumstance and then confidently assign to it decisive weight
and significance. Considered separately, neither of the two above
errors assigned would call for a judgment different in character.
Nor would a combination of acts allegedly impressed with
negligence suffice to alter the result. The quantum of proof
required still had not been met. The alleged errors fail of their
desired effect. The case for plaintiff-appellant, such as it was, had
not been improved. There is no justification for reversing the
judgment of the lower court.
It cannot be stressed too much that the decisive considerations
are too variable, too dependent in the last analysis upon a
common sense estimate of the situation as it presented itself to
Page 11 of 66
the parties for us to be able to say that this or that element having
been isolated, negligence is shown. The factors that enter the
judgment are too many and diverse for us to imprison them in the
formula sufficient of itself to yield the correct answer to the
multi-faceted problems the question of negligence poses. Every
case must be dependent on its facts. The circumstances indicative
of lack of due care must be judged in the light of what could
reasonably be expected of the parties. If the objective standard of
prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the
controlling facts to impute negligence to defendant-appellee. The
first three errors assigned certainly do not call for that
conclusion.
4. The fourth assigned error is deserving of a more
extended treatment. Plaintiff-appellant apparently had in mind
this portion of the opinion of the lower court: "The weight of
authorities is to the effect that a railroad track is in itself a
warning or a signal of danger to those who go upon it, and that
those who, for reasons of their own, ignore such warning, do so
at their own risk and responsibility. Corliss, Jr., who undoubtedly
had crossed the checkpoint frequently, if not daily, must have
known that locomotive engines and trains usually pass at that
particular crossing where the accident had taken place." 15
Her assignment of error, however, would single out not the above
excerpt from the decision appealed from but what to her is the
apparent reliance of the lower court on Mestres v. Manila Electric
Railroad & Light Co. 16 and United States v. Manabat & Pasibi.
17 In the Manabat case, the doctrine announced by this Court
follows: "A person in control of an automobile who crosses a
railroad, even at a regular road crossing, and who does not
exercise that precaution and that control over it as to be able to
stop the same almost immediately upon the appearance of a train,
is guilty of criminal negligence, providing a collision occurs and
injury results. Considering the purposes and the general methods
adopted for the management of railroads and railroad trains, we
think it is incumbent upon one approaching a railroad crossing to
use all of his faculties of seeing and hearing. He should approach
a railroad crossing cautiously and carefully. He should look and
listen and do everything that a reasonably prudent man would do
before he attempts to cross the track." The Mestres doctrine in a
suit arising from a collision between an automobile and a street
car is substantially similar. Thus: "It may be said, however, that,
where a person is nearing a street crossing toward which a car is
approaching, the duty is on the party to stop and avoid a collision
who can most readily adjust himself to the exigencies of the case,
and where such person can do so more readily, the motorman has
a right to presume that such duty will be performed."
It is true, as plaintiff-appellant would now allege, that there has
been a drift away from the apparent rigid and inflexible doctrine
thus set forth in the two above cases as evidenced by Lilius v.
Manila Railroad Co., 18 the controlling facts of which, however,
are easily distinguishable from what had been correctly
ascertained in the present case. Such a deviation from the earlier

principle announced is not only true of this jurisdiction but also
of the United States.
This is made clear by Prosser. Speaking of a 1927 decision by
Justice Holmes, he had the following to say: "Especially
noteworthy in this respect is the attempt of Mr. Justice Holmes,
in Baltimore & Ohio Railway v. Goodman, to 'lay down a
standard once for all,' which would require an automobile driver
approaching a railroad crossing with an obstructed view to stop,
look and listen, and if he cannot be sure otherwise that no train is
coming, to get out of the car. The basic idea behind this is sound
enough; it is by no means proper care to cross a railroad track
without taking reasonable precautions against a train, and
normally such precautions will require looking, hearing, and a
stop, or at least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pokora v. Wabash
Railway, 20 where, according to Prosser, it being shown that
"the only effective stop must be made upon the railway tracks
themselves, in a position of obvious danger, the court disregarded
any such uniform rule, rejecting the 'get out of the car'
requirement as 'an uncommon precaution, likely to be futile and
sometimes even dangerous,' and saying that the driver need not
always stop. 'Illustrations such as these,' said Mr. Justice
Cardozo, 'bear witness to the need for caution in framing
standards of behavior that amount to rules of law . . .
Extraordinary situations may not wisely or fairly be subjected to
tests or regulations that are fitting for the commonplace or
normal." 21
What Justice Cardozo announced would merely emphasize what
was set forth earlier that each and every case on questions of
negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and
fast rule. There must be that observance of the degree of care,
precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence
can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at
by the lower court: "Predicated on the testimonies of the
plaintiff's witnesses, on the knowledge of the deceased and his
familiarity with the setup of the checkpoint, the existence of the
tracks; and on the further fact that the locomotive had blown its
siren or whistle, which was heard by said witnesses, it is clear
that Corliss, Jr. was so sufficiently warned in advance of the
oncoming train that it was incumbent upon him to avoid a
possible accident — and this consisted simply in stopping his
vehicle before the crossing and allowing the train to move on. A
prudent man under similar circumstances would have acted in
this manner. This, unfortunately, Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29,
1962 dismissing the complaint, is affirmed. Without
pronouncement as to costs.
Page 12 of 66
Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Capistrano, Teehankee, and Barredo, JJ .,
concur.
5.FIRST DIVISION
[G.R. No. 32611. November 3, 1930.]
CULION ICE, FISH & ELECTRIC CO., INC., plaintiff-
appellee, vs. PHILIPPINE MOTORS CORPORATION,
defendant-appellant.
Gibbs & McDonough for appellant.
Benj. S. Ohnick for appellee.
SYLLABUS
1. NEGLIGENCE; SKILL REQUIRED OF PERSON
WHO UNDERTAKES PARTICULAR WORK. — A person who
holds himself out as being competent to do work requiring
special skill is guilty of negligence if he fails to exhibit the care a
prudent person would exhibit who is reasonably well skilled in
the particular work undertaken.
2. ID.; ID.; CASE AT BAR. — The manager of the
defendant corporation, which was engaged chiefly in selling and
repairing of automobiles, but which had authority under its
charter, to deal in all sorts of machinery engines, and motors, and
their equipment, undertook to change the gasoline engine on
plaintiff's boat, with a view to enabling it to use a fuel of lower
grade. After a new carburetor had been introduced and a new fuel
tank installed, the boat was taken out for a trial, in the course of
which a back fire took place in the cylinder of the engine, and
flames were communicated, through the carburetor, to the
outside, with the result that the boat was destroyed. Held, upon
the facts stated in the opinion, that the loss of the boat was
attributable to the negligence or lack of skill on the part of the
manager of the defendant corporation.
DECISION
STREET, J p:
This action was instituted in the Court of First Instance of Manila
by Culion Ice, Fish & Electric Co., Inc., for the purpose of
recovering from the Philippine Motors Corporation the sum of
P11,350, with interest and costs. Upon hearing the cause the trial
court gave judgment in favor of the plaintiff to recover of the
defendant the sum of P9,850, with interest at 6 per centum per
annum from March 24, 1927, the date of the filing of the
complaint, until satisfaction of the judgment, with costs. From
this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the
time of the incident with which we are here concerned; H.D.
Cranston was the representative of the plaintiff in the City of

Manila. At the same time the plaintiff was the registered owner of
the motor schooner Gwendoline, which was used in the fishing
trade in the Philippine Islands. In January, 1925, Cranston
decided, if practicable, to have the engine on Gwendoline
changed from a gasoline consumer to a crude oil burner,
expecting thereby to effect economy in the cost of running the
boat. He therefore made known his desire to McLeod & Co., a
firm dealing in tractors, and was told by McKellar, of said
company, that he might make inquiries of the Philippine Motors
Corporation, which had its office on Ongpin Street, in the City of
Manila. Cranston accordingly repaired to the office of the
Philippine Motors Corporation and had a conference with C.E.
Quest, its manager, who agreed to do the job, with the
understanding that payment should be made upon completion of
the work.
The Philippine Motors Corporation was at this time engaged in
business as an automobile agency, but, under its charter, it had
authority to deal in all sorts of machinery engines and motors, as
well as to build, operate, buy and sell the same and the equipment
thereof. Quest, as general manager, had full charge of the
corporation in all its branches.
As a result of the aforesaid interview, Quest, in company with
Cranston, visited the Gwendoline while it lay at anchor in the
Pasig river, and the work of effecting the change in the engine
was begun and conducted under the supervision of Quest, chiefly
by a mechanic whom Quest took with him to the boat. In this
work Quest had the assistance of the members of the crew of the
Gwendoline, who had been directed by Cranston to place
themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the
conclusion that the principal thing necessary to accomplish the
end in view was to install a new carburetor, and a Zenith
carburetor was chosen as the one most adapted to the purpose.
After this appliance had been installed, the engine was tried with
gasoline as a fuel , supplied from the tank already in use. The
result of this experiment was satisfactory. The next problem was
to introduce into the carburetor the baser fuel, consisting of a low
grade of oil mixed with distillate. For this purpose a temporary
tank to contain the mixture was placed on deck above and at a
short distance from the compartment covering the engine. This
tank was connected with the carburetor by a piece of tubing,
which was apparently not well fitted at the point where it was
connected with the tank. Owing to this fact the fuel mixture
leaked from the tank and dripped down into the engine
compartment. The new fuel line and that already in use between
the gasoline tank and the carburetor were so fixed that it was
possible to change from the gasoline fuel to the mixed fuel. The
purpose of this arrangement was to enable the operator to start
the engine on gasoline and then, after the engine had been
operating for a few moments, to switch to the new fuel supply.
In the course of the preliminary work upon the carburetor and its
connections, it was observed that the carburetor was flooding,
and that the gasoline, or other fuel, was trickling freely from the
Page 13 of 66
lower part of the carburetor to the floor. This fact was called to
Quest's attention, but he appeared to think lightly of the matter
and said that, when the engine had gotten to running well, the
flooding would disappear.
After preliminary experiments and adjustments had been made,
the boat was taken out into the bay for a trial run at about 5 p.m.,
or a little later, on the evening of January 30, 1925. The first part
of the course was covered without any untoward development,
other than the fact that the engine stopped a few times, owing no
doubt to the use of an improper mixture of fuel. In the course of
the trial Quest remained outside of the engine compartment and
occupied himself with making experiments in the matter of
mixing the crude oil with distillate, with a view of ascertaining
what proportion of the two elements would give best results in
the engine.
As the boat was coming in from this run, at about 7:30 p.m., and
when passing near Cavite, the engine stopped, and connection
again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to
the tube connecting with the new mixture. A moment later a back
fire occurred in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the carburetor and
adjacent parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape
was safely effected, but the Gwendoline was reduced to a mere
hulk. The salvage from the wreck, when sold, brought only the
sum of P150. The value of the boat, before the accident occurred,
as the court found, was P10,000.00.
A study of the testimony leads us to the conclusion that the loss
of this boat was chargeable to the negligence and lack of skill of
Quest. The temporary tank in which the mixture was prepared
was apparently at too great an elevation from the carburetor, with
the result that when the fuel line opened, the hydrostatic pressure
in the carburetor was greater that the delicate parts of the
carburetor could sustain. This was no doubt the cause of the
flooding of the carburetor; and the result was that, when the back
fire occurred, the external parts of the carburetor, already
saturated with gasoline, burst into flames, whence the fire was
quickly communicated to the highly inflammable material near-
by. Ordinarily a back fire from an engine would not be followed
by any disaster, but in this case the leak along the pipe line and
the flooding of the carburetor had created a dangerous situation,
which a prudent mechanic, versed in repairs of this nature, would
have taken precautions to avoid. The back fire may have been
due either to the fact that the spark was too advanced or the fuel
improperly mixed.
In this connection it must be remembered that when a person
holds himself out as being competent to do things requiring
professional skill, he will be held liable for negligence if he fails
to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do. The proof shows that
Quest had had ample experience in fixing the engines of

automobiles and tractors, but it does not appear that he was
experienced in the doing of similar work on boats. For this
reason, possibly, the dripping of the mixture from the tank on
deck and the flooding of the carburetor did not convey to his
mind an adequate impression of the danger of fire. But a person
skilled in that particular sort of work would, we think, have been
sufficiently warned from those circumstances to cause him to
take greater and adequate precautions against the danger. In other
words Quest did not use the skill that would have been exhibited
by one ordinarily expert in repairing gasoline engines on boats.
There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline may be
said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occurred but for
Quest's carelessness or lack of skill. The test of liability is not
whether the jury was accidental in a sense, but whether Quest
was free from blame.
We therefore see no escape from the conclusion that this accident
is chargeable to lack of skill or negligence in effecting the
changes which Quest undertook to accomplish; and even
supposing that our theory as to the exact manner in which the
accident occurred might appear to be in some respects incorrect,
yet the origin of the fire is not so inscrutable as to enable us to
say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that,
inasmuch as Quest had control of the Gwendoline during the
experimental run, the defendant corporation was in the position
of a bailee and that, as a consequence the burden of proof was on
the defendant to exculpate itself from responsibility by proving
that the accident was not due to the fault of Quest. We are unable
to accede to this point of view. Certainly, Quest was not in charge
of the navigation of the boat on this trial run. His employment
contemplated the installation of new parts in the engine only, and
it seems rather strained to hold that the defendant corporation had
thereby become bailee of its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and
their rights and liabilities are determined by the general rules of
law, under their contract. The true bailee acquires possession and
what is usually spoken of as special property in the chatted
bailed. As a consequence of such possession and special property,
the bailee is given a lien for his compensation. These ideas seem
to be incompatible with the situation now under consideration.
But though defendant cannot be held liable on the supposition
that the burden of proof has not been sustained by it in disproving
the negligence of its manager, we are nevertheless of the opinion
that the proof shows by a clear preponderance that the accident to
the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in
question had occurred, and after Quest had ceased to be the
manager of the defendant corporation and had gone back to the
United States. Upon these facts, the defendant bases the
Page 14 of 66
contention that the action should be considered stale. It is
sufficient reply to say that the action was brought within the
period limited by the statute of limitations and the situation is not
one where the defense of laches can be properly invoked.
It results that the judgment appealed from, awarding damages to
the plaintiff in the amount of P9,850, with interest, must be
affirmed; and it is so ordered, with costs against the appellant.
Avanceña, C. J., Malcolm, Villamor, Ostrand, Romualdez and
Villareal, JJ., concur.
6.EN BANC
[G.R. No. 12191. October 14, 1918.]
JOSE CANGCO, plaintiff-appellant, vs. MANILA
RAILROAD CO., defendant-appellee.
Ramon Sotelo, for appellant.
Kincaid & Hartigan, for appellee.
SYLLABUS
1. MASTER AND SERVANT; CONTRACT;
NEGLIGENCE. — Failure to perform a contract cannot be
excused upon the ground that the breach was due to the
negligence of a servant of the obligor, and that the latter
exercised due diligence in the selection and control of the
servant.
2. CONTRACTS; NEGLIGENCE:; CULPA
AQUILIANA; CULPA CONTRACTUAL. — The distinction
between negligence as the source of an obligation (culpa
aquiliana) and negligence in the performance of a contract (culpa
contractual ) pointed out.
3. CARRIERS; PASSENGERS; NEGLIGENCE;
ALIGHTING FROM MOVING TRAIN. — It is not negligence
per se for a traveler to alight from a slowly moving train.
DECISION
FISHER, J p:
At the time of the occurrence which gave rise to this litigation the
plaintiff, Jose Cangco, was in the employment of the Manila
Railroad Company in the capacity of clerk, with a monthly wage
of P25. He lived in the pueblo of San Mateo, in the province of
Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in
the city of Manila where he worked, he used a pass, supplied by
the company, which entitled him to ride upon the company's
trains free of charge. Upon the occasion in question, January 20,
1915, the plaintiff was returning home by rail from his daily
labors; and as the train drew up to the station in San Mateo the
plaintiff arose from his seat in the second class-car where he was
riding and, making his exit through the door, took his position

upon the steps of the coach, seizing the upright guardrail with his
right hand for support.
On the side of the train where passengers alight at the San Mateo
station there is a cement platform which begins to rise with a
moderate gradient some distance away from the company's office
and extends along in front of said office for a distance sufficient
to cover the length of several coaches. As the train slowed down
another passenger, named Emilio Zuniga, also an employee of
the railroad company, got off the same car, alighting safely at the
point where the platform begins to rise from the level of the
ground. When the train had proceeded a little farther the plaintiff
Jose Cangco stepped off also, but one or both of his feet came in
contact with a sack of watermelons with the result that his feet
slipped from under him and he fell violently on the platform. His
body at once rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated.
It appears that after the plaintiff alighted from the train the car
moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night,
and as the railroad station was lighted dimly by a single light
located some distance away, objects on the platform where the
accident occurred were difficult to discern, especially to a person
emerging from a lighted car.
The explanation of the presence of a sack of melons on the
platform where the plaintiff alighted is found in the fact that it
was the customary season for harvesting these melons and a large
lot had been brought to the station for shipment to the market.
They were contained in numerous tow sacks which had been
piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed that there was a space
of only about two feet between the sacks of melons and the edge
of the platform; and it is clear that the fall of the plaintiff was due
to the fact that his foot alighted upon one of these melons at the
moment he stepped upon the platform. His statement that he
failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received
were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made
and his arm was amputated. The result of this operation was
unsatisfactory, and the plaintiff was then carried to another
hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It
appears in evidence that the plaintiff expended the sum of
P790.25 in the form of medical and surgical fees and for other
expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court
of First Instance of the city of Manila to recover damages of the
defendant company, founding his action upon the negligence of
the servants and employees of the defendant in placing the sacks
of melons upon the platform and in leaving them so placed as to
Page 15 of 66
be a menace to the security of passenger alighting from the
company's trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as above
stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason
of the fact that the sacks of melons were so placed as to obstruct
passengers passing to and from the cars, nevertheless, the
plaintiff himself had failed to use due caution in alighting from
the coach and was therefore precluded from recovering.
Judgment was accordingly entered in favor of the defendant
company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company
were guilty of negligence in piling these sacks on the platform in
the manner above stated; that their presence caused the plaintiff
to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by
the plaintiff. It necessarily follow s that the defendant company is
liable for the damage thereby occasioned unless recovery is
barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these
conceptions of liability, to-wit, the primary responsibility of the
defendant company and the contributory negligence of the
plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of
the defendant is the contract of carriage, and that the obligation to
respond for the damage which plaintiff has suffered arises, if at
all, from the breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That is to say,
its liability is direct and immediate, differing essentially, in the
legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care
in their selection and supervision. Article 1903 of the Civil Code
is not applicable to obligations arising ex contractu, but only to
extra-contractual obligations — or to use the technical form of
expression, that article relates only to culpa aquiliana and not to
culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103
and 1104 of the Civil Code, clearly points out this distinction,
which was also recognized by this Court in its decision in the
case of Rakes vs. Atlantic, Gulf and Pacific Cc. (7 Phil. Rep.,
359). In commenting upon article 1093 (vol. 8, p. 30) Manresa
clearly points out the difference between "culpa, substantive and
independent, which of itself constitutes the source of an
obligation between persons not formerly connected by any legal
tie" and culpa considered as an "accident in the performance of
an obligation already existing . . .."
In the Rakes case (supra) the decision of this court was made to
rest squarely upon the proposition that article 1903 of the Civil
Code is not applicable to acts of negligence which constitute the
breach of a contract.
Upon this point the Court said:

"The acts to which these articles [1902 and 1903 of the Civil
Code] are applicable are understood to be those not growing out
of pre-existing duties of the parties to one another But where
relations already formed give rise to duties, whether springing
from contract or quasi-contract, then breaches of those duties are
subject to articles 1101, 1103 and 1104 of the same code." (Rakes
vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at p. 365.)
This distinction is of the utmost importance. The liability, which,
under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence
of their employees to persons to whom they are not bound by
contract, is not based, as in the English Common Law, upon the
principle of respondeat superior — if it were, the master would
be liable in every case and unconditionally — but upon the
principle announced in article 1902 of the Civil Code, which
imposes upon all persons who by their fault or negligence, do
injury to another, the obligation of making good the damage
caused. One who places a powerful automobile in the hands of a
servant whom he knows to be ignorant of the method of
managing such a vehicle, is himself guilty of an act of negligence
which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at
the very instant that the unskillful servant, while acting within the
scope of his employment, causes the injury. The liability of the
master is personal and direct. But, if the master has not been
guilty of any negligence whatever in the selection and direction
of the servant, he is not liable for the acts of the latter, whether
done within the scope of his employment or not, if the damage
done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the
selection and control of the servant relieves the master from
liability for the latter's acts — on the contrary, that proof shows
that the responsibility has never existed. As Manresa says (vol. 8,
p. 68) the liability arising from extra-contractual culpa is always
based upon a voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has caused damage
to another. A master who exercises all possible care in the
selection of his servant, taking into consideration the
qualifications they should possess for the discharge of the duties
which it is his purpose to confide to them, and directs them with
equal diligence, thereby performs his duty to third persons to
whom he is bound by no contractual ties, and he incurs no
liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third persons
suffer damage. True it is that under article 1903 of the Civil Code
the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is
rebuttable and yields to proof of due care and diligence in this
respect.
The supreme court of Porto Rico, in interpreting identical
provisions, as found in the Porto Rican Civil Code, has held that
Page 16 of 66
these articles are applicable to cases of extra-contractual culpa
exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil.
Rep., 624), which was an action brought upon the theory of the
extra-contractual liability of the defendant to respond for the
damage caused by the carelessness of his employee while acting
within the scope of his employment The Court, after citing the
last paragraph of article 1903 of the Civil Code, said:
"From this article two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the master or employer either in the selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is
overcome and he is relieved from liability.
"This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is
conclusively the negligence of the master."
The opinion there expressed by this Court, to the effect that in
case of extra-contractual culpa based upon negligence, it is
necessary that there shall have been some fault attributable to the
defendant personally, and that the last paragraph of article 1903
merely establishes a rebuttable presumption, is in complete
accord with the authoritative opinion of Manresa, who says (vol.
12, p. 611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special relations
of authority or superiority existing between the person called
upon to repair the damage and the one who, by his act or
omission, was the cause of it.
On the other hand, the liability of masters and employers for the
negligent acts or omissions of their servants or agents, when such
acts or omissions cause damages which amount to the breach of a
contract, is not based upon a mere presumption of the master's
negligence in their selection or control, and proof of exercise of
the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the
breach or omission of those mutual duties which civilized society
imposes upon its members, or which arise from these relations,
other than contractual, of certain members of society to others,
generally embraced in the concept of status. The legal rights of
each member of society constitute the measure of the

corresponding legal duties, mainly negative in character, which
the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful
intent or to mere inattention, if productive of injury, gives rise to
an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which
arise from contract, rests upon the fact that in cases of non-
contractual obligation it is the wrongful or negligent act or
omission itself which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when
entering into the contractual relation.
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — to
limit such liability to cases in which the person upon whom such
an obligation is imposed is morally culpable or, on the contrary,
for reasons of public policy, to extend that liability, without
regard to the lack of moral culpability, so as to include
responsibility for the negligence of those persons whose acts or
omissions are imputable, by a legal fiction, to others who are in a
position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit
extra contractual liability — with certain well-defined exceptions
— to cases in which moral culpability can be directly imputed to
the persons to be charged. This moral responsibility may consist
in having failed to exercise due care in one's own acts, or in
having failed to exercise due care in the selection and control of
one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with
respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken
by contract to render service to another, is wholly different from
that to which article 1903 relates. When the source of the
obligation upon which plaintiff's cause of action depends is a
negligent act or omission, the burden of proof rests upon plaintiff
to prove the negligence — if he does not his action fails. But
when the facts averred show a contractual undertaking by
defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not
necessary for plaintiff to specify in his pleadings whether the
breach of the contract is due to willful fault or to negligence on
the part of the defendant, or of his servants or agents. Proof of the
contract and of its nonperformance is sufficient prima facie to
warrant a recovery.
"As a general rule . . . it is logical that in case of extra-contractual
culpa, a suing creditor should assume the burden of proof of its
existence, as the only fact upon which his action is based; while
on the contrary, in a case of negligence which presupposes the
existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to
prove the negligence." (Manresa, vol. 8, p. 71 [1907 ed., p. 76].)
Page 17 of 66
As it is not necessary for the plaintiff in an action for the breach
of a contract to show that the breach was due to the negligent
conduct of defendant or of his servants, even though such be in
fact the actual cause of the breach, it is obvious that proof on the
part of defendant that the negligence or omission of his servants
or agents caused the breach of the contract would not constitute a
defense to the action. If the negligence of servants or agents
could be invoked as a means of discharging the liability arising
from contract, the anomalous result would be that persons acting
through the medium of agents or servants in the performance of
their contracts, would be in a better position than those acting in
person. If one delivers a valuable watch to a watchmaker who
contracts to repair it, and the bailee, by a personal negligent act
causes its destruction, he is unquestionably liable. Would it be
logical to free him from his liability for the breach of his
contract, which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his servant
whose negligence caused the injury? If such a theory could be
accepted, juridical persons would enjoy practically complete
immunity from damages arising from the breach of their
contracts if caused by negligent acts of omission or commission
on the part of their servants, as such juridical persons can of
necessity only act through agents or servants, and it would no
doubt be true in most instances that reasonable care had been
taken in the selection and direction of such servants. If one
delivers securities to a banking corporation as collateral, and they
are lost by reason of the negligence of some clerk employed by
the bank, would it be just and reasonable to permit the bank to
relieve itself of liability for the breach of its contract to return the
collateral upon the payment of the debt by proving that due care
had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an
obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the
supreme court of Spain. (Sentencias of June 27, 1894; November
20, 1896; and December 13 1896.) In the decision of November
20, 1896, it appeared that plaintiff s action arose ex contractu, but
that defendant sought to avail himself of the provisions of article
1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
"These are not cases of injury caused, without any pre-existing
obligation, by fault or negligence, such as those to which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . .."
A brief review of the earlier decision of this court involving the
liability of employers for damage done by the negligent acts of
their servants will show that in no case has the court ever decided
that the negligence of the defendant's servants [has] been held to
constitute a defense to an action for damages for breach of
contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court
held that the owner of a carriage was not liable for the damages

caused by the negligence of his driver. In that case the court
commented on the fact that no evidence had been adduced in the
trial court that the defendant had been negligent in the
employment of the driver, or that he had any knowledge of his
lack of skill or carefulness.
In the case of Baer Senior & Co.'s Successors vs. Compañia
Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for
damages caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence of defendant's
servants in the course of the performance of a contract of towage.
The court held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract made between
it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374),
plaintiff sued the defendant to recover damages for personal
injuries caused by the negligence of defendant's chauffeur while
driving defendant's automobile in which defendant was riding at
the time. The court found that the damages were caused by the
negligence of the driver of the automobile, but held that the
master was not liable, although he was present at the time,
saying:
" . . . unless the negligent acts of the driver are continued for such
a length of time as to give the owner a reasonable opportunity to
observe them and to direct the driver to desist therefrom. . . . The
act complained of must be continued in the presence of the owner
for such a length of time that the owner by his acquiescence,
makes the driver's acts his own."
In the case of Yamada vs. Manila Railroad Co. and Rachrach
Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court
rested its conclusion as to the liability of the defendant upon
article 1903, although the facts disclosed that the injury
complained of by plaintiff constituted a breach of the duty to him
arising out of the contract of transportation. The express ground
of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants
"makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable
presumption of negligence in the selection or direction of the
servants; and that in the particular case the presumption of
negligence had not been overcome.
It is evident, therefore, that in its decision in the Yamada case, the
court treated plaintiff's action as though founded in tort rather
than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed
from the standpoint of the defendant the practical result must
have been the same in any event. The proof disclosed beyond
doubt that the defendant's servant was grossly negligent and that
his negligence was the proximate cause of plaintiff's injury. It
also affirmatively appeared that defendant had been guilty of
negligence in its failure to exercise proper discretion in the
Page 18 of 66
direction of the servant. Defendant was therefore, liable for the
injury suffered by plaintiff, whether the breach of the duty were
to be regarded as constituting culpa aquilina or culpa contractual.
As Manresa points out (vol. 8, pp. 29 and 69) whether negligence
occurs as an incident in the course of the performance of a
contractual undertaking or is itself the source of an extra-
contractual obligation, its essential characteristics are identical.
There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant.
Consequently, when the court holds that a defendant is liable in
damages for having failed to exercise due care, either directly, or
in failing to exercise proper care in the selection and direction of
his servants, the practical result is identical in either ease.
Therefore, it follows that it is not to be inferred, because the court
held in the Yamada ease that the defendant was liable for the
damages negligently caused by its servant to a person to whom it
was bound by contract, and made reference to the fact that the
defendant was negligent in the selection and control of its
servants, that in such a case the court would have held that it
would have been a good defense to the action, if presented
squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the
selection and control of the servant.
The true explanation of such cases is to be found by directing the
attention to the relative spheres of contractual and extra-
contractual obligations. The field of non-contractual obligation is
much more broader than that of contractual obligation,
comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric; that
is to say, the mere fact that a person is bound to another by
contract does not relieve him from extra-contractual liability to
such person. When such a contractual relation exists the obligor
may break the contract under such conditions that the same act
which constitutes a breach of the contract would have constituted
the source of an extra-contractual obligation had no contract
existed between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe
means of entering and leaving its trains (Civil Code, article
1258). That duty, being contractual, was direct and immediate,
and its non-performance could not be excused by proof that the
fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that
even granting that the negligent conduct of its servants in placing
an obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its
trains, the direct and proximate cause of the injury suffered by
plaintiff was his own contributory negligence in failing to wait
until the train had come to a complete stop before alighting.
Under the doctrine of comparative negligence announced in the
Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant, whereas if the
accident was caused by defendant's negligence and plaintiff's

negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if
defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had
come to a full stop before alighting, the particular injury suffered
by him could not have occurred. Defendant contends, and cites
many authorities in support of the contention, that it is negligence
per se for a passenger to alight from a moving train. We are not
disposed to subscribe to this doctrine n its absolute form. We are
of the opinion that this proposition is too broadly stated and is at
variance with the experience of every-day life. In this particular
instance, tat the train was barely moving when plaintiff alighted
is shown conclusively by the fact that it came to stop within six
meters from the place where he stepped from it. Thousands of
persons alight from trains under these conditions every day of the
year, and sustain no injury where the company has kept its
platform free from dangerous obstructions. There is no reason to
believe that plaintiff would have suffered any injury whatever in
alighting as he did had it not been for defendant's negligent
failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this
subject is that expressed in Thompson's work on Negligence (vol.
3, sec. 3010) as follows:
"The test by which to determine whether the passenger has been
guilty of negligence in attempting to alight from a moving
railway train, is that of ordinary or reasonable care. It is to be
considered whether an ordinarily prudent person, of the age, sex
and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which
may or should be used by the prudent man generally, but the care
which a man of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)
Or, if we prefer to adopt the mode of exposition used by this
court in Picart vs. Snith (37 Phil. Rep., 809), we may say that the
test is this; Was there anything in the circumstances surrounding
the plaintiff at the time he alighted from the train which would
have admonished a person of average prudence that to get off the
train under the conditions then existing was dangerous ? If so, the
plaintiff should have desisted from alighting; and his failure so to
desist was contributory negligence.
As the case now before us presents itself, the only fact from
which a conclusion can be drawn to the effect that the plaintiff
was guilty of contributory negligence is that he stepped off the
car without being able to discern clearly the condition of the
platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact
that the obstruction which was caused by the sacks of melons
piled on the platform existed; and as the defendant was bound by
reason of its duty as a public carrier to afford to its passengers
Page 19 of 66
facilities for safe egress from its trains, the plaintiff had a right to
assume, in the absence of some circumstance to warn him to the
contrary, that the platform was clear. The place, as we have
already stated, was dark, or dimly lighted, and this also is proof
of a failure upon the part of the defendant in the performance of a
duty owing by it to the plaintiff; for if it were by any possibility
conceded that it had a right to pile these sacks in the path of
alighting passengers, the placing of them in that position gave
rise to the duty to light the premises adequately so that their
presence would be revealed.
As pertinent to the question of contributory negligence on the
part of the plaintiff in this case the following circumstances are to
be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The
distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of
the platform, constructed as it was of cement material, also
assured to the passenger a stable and even surface on which to
alight. Furthermore, the plaintiff was possessed of the vigor and
agility of young manhood, and it was by no means so risky for
him to get off while the train was yet moving as the same act
would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act —
that is to say, whether the passenger acted prudently or recklessly
— the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the passenger,
and should be considered. Women, it has been observed, as a
general rule, are less capable than men of alighting with safety
under such conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may be noted
that the place was perfectly familiar to the plaintiff, as it was his
daily custom to get on and off the train at this station. There
could, therefore, be no uncertainty in his mind with regard either
to the length of the step which he was required to take or the
character of the platform where he was alighting. Our conclusion
is that the conduct of the plaintiff in undertaking to alight while
the train was yet slightly under way was not characterized by
imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident,
was earning P25 a month as a copyist clerk, and that the injuries
he has suffered have permanently disabled him from continuing
that employment. Defendant has not shown that any other gainful
occupation is open to plaintiff. His expectancy of life, according
to the standard mortality tables, is approximately thirty-three
years. We are of the opinion that a fair compensation for the
damage suffered by him for his permanent disability is the sum of
P2,500, and that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention, hospital
services, and other incidental expenditures connected with the
treatment of his injuries.

The decision of the lower court is reversed, and judgment is
hereby rendered plaintiff for the sum of P3,290.25, and for the
costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
With one sentence in the majority decision, we are of full accord,
namely, "It may be admitted that had plaintiff waited until the
train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred." With the general rule
relative to a passenger's contributory negligence, we are likewise
in full accord, namely, "An attempt to alight from a moving train
is negligence per se." Adding these two points together, we have
the logical result — the Manila Railroad Co. should be absolved
from the complaint, and judgment affirmed.
Johnson, J., concurs.
7.SECOND DIVISION
[G.R. No. 77679. September 30, 1987.]
VICENTE VERGARA, petitioner, vs. THE COURT OF
APPEALS and AMADEO AZARCON, respondents.
R ES OLUTION
PADILLA, J p:
An action for damages based on quasi-delict (Art. 2176 of the
Civil Code) was filed by private respondent against petitioner.
The action arose from a vehicular accident that occurred on 5
August 1979 in Gapan, Nueva Ecija, when Martin Belmonte,
while driving a cargo truck belonging to petitioner, rammed
"head-on" the store-residence of the private respondent, causing
damages thereto which were inventoried and assessed at
P53,024.22.
In his answer to the complaint, the petitioner alleged principally:
"that his driver Martin Belmonte operated said cargo truck in a
very diligent (and) careful manner; that the steering wheel
refused to respond to his effort and as a result of a blown-out tire
and despite application of his brakes, the said cargo truck hit the
store-residence of plaintiff (private respondent) and that the said
accident was an act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers
Insurance and Surety Corporation, alleging that said cargo truck
involved in the vehicular accident, belonging to the petitioner,
was insured by the third party defendant insurance company.
Petitioner asked that the latter be ordered to pay him whatever
amount he may be ordered by the court to pay to the private
respondent. LLphil
Page 20 of 66
The trial court rendered judgment in favor of private respondent.
Upon appeal to the Court of Appeals, the latter court affirmed in
toto the decision of the trial court, which ordered petitioner to
pay, jointly and severally with Travellers Insurance and Surety
Corporation, to the private respondent the following: (a)
P53,024.22 as actual damages; (b) P10,000.00 as moral damages;
(c) P10,000.00 as exemplary damages; and (d) the sum of
P5,000.00 for attorney's fees and the costs. On the third party
complaint, the insurance company was sentenced to pay to the
petitioner the following: (a) P50,000.00 for third party liability
under its comprehensive accident insurance policy; and (b)
P3,000.00 for and as attorney's fees. prLL
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding
him guilty of fault or negligence is not tenable. It was established
by competent evidence that the requisites of a quasi-delict are
present in the case at bar. These requisites are: (1) damages to the
plaintiff; (2) negligence, by act or omission, of which defendant,
or some person for whose acts he must respond, was guilty; and
(3) the connection of cause and effect between such negligence
and the damages. LibLex
It is undisputed that private respondent suffered damages as a
result of an act or omission of petitioner. The issue of whether or
not this act or omission can be considered as a "negligent" act or
omission was passed upon by the trial court. The findings of said
court, affirmed by the respondent court, which we are not
prepared to now disturb, show that the fact of occurrence of the
"vehicular accident" was sufficiently established by the police
report and the testimony of Patrolman Masiclat. And the fact of
negligence may be deduced from the surrounding circumstances
thereof. According to the police report, "the cargo truck was
travelling on the right side of the road going to Manila and then it
crossed to the center line and went to the left side of the highway;
it then bumped a tricycle; and then another bicycle; and then said
cargo truck rammed the storewarehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes
but the latter did not work due to mechanical defect. Contrary to
the claim of the petitioner, a mishap caused by defective brakes
cannot be considered as fortuitous in character. Certainly, the
defects were curable and the accident preventable.
Furthermore, the petitioner failed to adduce any evidence to
overcome the disputable presumption of negligence on his part in
the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there
was negligence on the part of the petitioner, the petitioner's
contention that the respondent court erred in awarding private
respondent actual, moral and exemplary damages as well as
attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.

Yap, Melencio-Herrera, Paras and Sarmiento, JJ., concur..
8. [G.R. No.L-44748. August 29, 1986.]
RADIO COMMUNICATIONS OF THE PHILS., INC.
(RCPI), petitioner, vs. COURT OF APPEALS and LORETO
DIONELA, respondents.
O. Pythagoras Oliver for respondents.
DECISION
PARAS, J p:
Before Us, is a Petition for Review by certiorari of the decision
of the Court of Appeals, modifying the decision of the trial court
in a civil case for recovery of damages against petitioner
corporation by reducing the award to private respondent Loreto
Dionela of moral damages from P40,000 to P15,000, and
attorney's fees from P3,000 to P2,000.
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 1215 PM 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
BULBULMO" (p. 19, Annex "A")
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. 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
Page 21 of 66
delivered to plaintiff, obviously as is. The additional words in
Tagalog were never noticed and were included in the telegram
when delivered.
The trial court in finding for the plaintiff ruled as follows:
"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.
"The defendant is sued directly — not as an employer. The
business of the defendant is to transmit telegrams. It will open the
door to frauds and allow the defendant to act with impunity if it
can escape liability by the simple expedient of showing that its
employees acted beyond the scope of their assigned tasks.
"The liability of the defendant is predicated not only on Article
33 of the Civil Code of the Philippines but on the following
articles of said Code:
"ART. 19. — Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
"ART. 20. — Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the latter
for the same."
"There is sufficient publication of the libelous Tagalog words.
The office file of the defendant containing copies of telegrams
received are open and held together only by a metal fastener.
Moreover, they are open to view and inspection by third parties.
"It follows that the plaintiff is entitled to damages and attorney's
fees. The plaintiff is a businessman. The libelous Tagalog words
must have affected his business and social standing in the
community. The Court fixes the amount of P40,000.00 as the
reasonable amount of moral damages and the amount of
P3,000.00 as attorney's fees which the defendant should pay the
plaintiff." (pp. 15-16, Record on Appeal).
The respondent 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 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.
The law implies damages in this instance (Quemel vs. Court of
Appeals, L-22794, January 16, 1968; 22 SCRA 44). The award of
P40,000.00 as moral damages is hereby reduced to P15,000.00
and for attorney's fees the amount of P2,000.00 is awarded." (pp.
22-23, record)
After a motion for reconsideration was denied by the appellate
court, petitioner came to Us with the following:
ASSIGNMENT OF ERRORS.
I Feria (Chairman), Fernan Alampay, and Gutierrez, Jr., JJ., concur.
The Honorable Court of Appeals erred in holding that Petitioner-
employer should answer directly and primarily for the civil
liability arising from the criminal act of its employee.
II
The Honorable Court of Appeals erred in holding that there was
sufficient publication of the alleged libelous telegram in question,
as contemplated by law on libel.
III
The Honorable Court of Appeals erred in holding that the liability
of petitioner-company-employer is predicated on Articles 19 and
20 of the Civil Code, Articles on Human Relations.
IV
The Honorable Court of Appeals erred in awarding Atty's fees.
(p. 4, Record).
Petitioner's contentions do not merit our consideration. The
action for damages was filed in the lower court directly against
respondent corporation not as an employer subsidiarily liable
under the provisions of Article 1161 of the New Civil Code in
relation to Art. 103 of the Revised Penal Code. 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
Page 22 of 66
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. As a corporation, the
petitioner can act only through its employees. Hence the acts of
its employees in receiving and transmitting messages are the acts
of the petitioner. To hold that the petitioner is not liable directly
for the acts of its employees in the pursuit of petitioner's business
is to deprive the general public availing of the services of the
petitioner of an effective and adequate remedy. 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.
WHEREFORE, premises considered, the judgment of the
appellate court is hereby AFFIRMED.
SO ORDERED.
Footnotes
1. In contracts the negligence of the employee (servant) is
the negligence of the employer (master). This is the master and
servant rule.
9.THIRD DIVISION
[G.R. Nos. 79050-51. November 14, 1989.]
PANTRANCO NORTH EXPRESS, INC. petitioner, vs.
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, respondents.
Efren N. Ambrosio & Associates for petitioner PNEI.
Emiliano S. Micu for respondents.
SYLLABUS
1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE
DOCTRINE; WHEN APPLICABLE. — The doctrine of last
clear chance applies only in a situation where the defendant,
having the last fair chance to avoid the impending harm and
failed to do so, becomes liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff.
2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE
APPLICABLE. — In order that the doctrine of last clear chance
may be applied, it must be shown that the person who allegedly
had the last opportunity to avert the accident was aware of the

existence of the peril or with exercise of due care should have
been aware of it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON
ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS.
— This doctrine of last chance has no application to a case where
a person is to act instantaneously, and if the injury cannot be
avoided by using all means available after the peril is or should
have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE
VEHICLE ENTERING A THROUGH HIGHWAY OR A STOP
INTERSECTION. — Section 43 (c), Article III, Chapter IV of
Republic Act No. 1436 cannot apply to case a bar where at the
time of the accident, the jeepney had already crossed the
intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES
ON THE EMPLOYER. — A finding of negligence on the part of
the driver establishes a presumption that the employer has been
negligent and the latter has the burden of proof that it has
exercised due negligence not only in the selection of its
employees but also in adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO
SUPPORT CLAIM FOR DAMAGES. — Plaintiff's failure to
present documentary evidence to support their claim for damages
for loss of earning capacity of the deceased victim does not bar
recovery of the damages, if such loss may be based sufficiently
on their testimonies.
7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The
indemnity for the death of a person was fixed by this Court at
(P30,000.00).
DECISION
CORTES, J p:
In this Petition, Pantranco North Express Inc. (PANTRANCO),
asks the Court to review the decision of the Court of Appeals in
CA-G.R. No. 05494-95 which affirmed the decisions of the Court
of First Instance of Rosales, Pangasinan in Civil Case No. 561-R
and Civil Case No. 589-R wherein PANTRANCO was ordered to
pay damages and attorney's fees to herein private respondents.
Cdpr
The pertinent fact are as follows:
At about 7:00 o'clock 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.
Page 23 of 66
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 jeepney's 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, respectively docketed as Civil Case No. 561-R
and 589-R of the Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late
David Ico's alleged negligence as the proximate cause of the
accident, invoked the defense of due diligence in the selection
and supervision of its driver, Ambrosio Ramirez. cdll
On July 3, 1984, the CFI of Pangasinan rendered a decision
against PANTRANCO awarding the total amount of Two Million
Three Hundred Four Thousand Six Hundred Forty-Seven
(P2,304,647.00) as damages, plus 10% thereof as attorney's fees
and costs to Maricar Baesa in Civil Case No. 561-R, and the total
amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof
as attorney's fees and costs to Fe Ico and her children in Civil
Case No. 589-R. On appeal, the cases were consolidated and the
Court of Appeals modified the decision of the trial court by
ordering PANTRANCO to pay the total amount of One Million
One Hundred Eighty-Nine Thousand Nine Hundred Twenty
Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand
Pesos (P20,000.00) as attorney's fees to Maricar Baesa, and the
total amount of Three Hundred Forty-Four Thousand Pesos
(P344,000.00) plus Ten Thousand Pesos (P10,000.00) as
attorney's fees to Fe Ico and her children, and to pay the costs in
both cases. The dispositive portion of the assailed decision reads
as follows:
 Page 24 of 66

WHEREFORE, the decision appealed from is hereby modified
by ordering the defendant PANTRANCO North Express, Inc. to
pay:
I. The plaintiff in Civil Case No. 561-R, Maricar Bascos
Baesa, the following damages:
PANTRANCO filed a motion for reconsideration of the Court of
Appeals' decision, but on June 26, 1987, it denied the same for
lack of merit. PANTRANCO then filed the instant petition for
review.
I

A) As compensatory damages for the death of Ceasar Baesa Petitioner faults the Court of Appeals for not applying the
— P30,000.00; doctrine of the "last clear chance" against the jeepney driver.
Petitioner claims that under the circumstances of the case, it was
B) As compensatory damages for the death of Marilyn the driver of the passenger jeepney who had the last clear chance
Baesa — P30,000.00; to avoid the collision and was therefore negligent in failing to
utilize with reasonable care and competence his then existing
C) As compensatory damages for the death of Harold Jim
opportunity to avoid the harm.
Baesa and Marcelino Baesa — P30,000.00;
The doctrine of the last clear chance was defined by this Court in
D) For the loss of earnings of Ceasar Baesa —
the case of Ong v. Metropolitan Water District, 104 Phil. 397
P630,000.00;
(1958), in this wise:
E) For the loss of earnings of Marilyn Bascos Baesa —
The doctrine of the last clear chance simply, means that the
P375,000.00;
negligence of a claimant does not preclude a recovery for the
F) For the burial expenses of the deceased Ceasar and negligence of defendant where it appears that the latter, by
Marilyn Baesa — P41,200.00; exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
G) For hospitalization expenses of Maricar Baesa — negligence.
P3,727.00;
The doctrine applies only in a situation where the plaintiff was
H) As moral damages — P50,000.00; guilty of prior or antecedent negligence but the defendant, who
had the last fair chance to avoid the impending harm and failed to
I) As attorney's fees — P20,000.00; do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff [Picart v.
II. The plaintiffs in Civil Case No. 589-R, the following
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware,
damages:
et al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de
A) As compensatory damages for the death of David Ico — Calibo, et al., G.R. No. 70493, May 18, 1989]. The subsequent
P30,000.00; negligence of the defendant in failing to exercise ordinary care to
avoid injury to plaintiff becomes the immediate or proximate
B) For loss of earning capacity of David Ico — cause of the accident which intervenes between the accident and
P252,000.00; the more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].
C) As moral damages for the death of David Ico and the
injury of Fe Ico — P30,000.00 Generally, the last clear chance doctrine is invoked for the
purpose of making a defendant liable to a plaintiff who was
D) As payment for the jeepney — P20,000.00; guilty of prior or antecedent negligence, although it may also be
raised as a defense to defeat claim for damages. llcd
E) For the hospitalization of Fe Ico — P12,000.000;
To avoid liability for the negligence of its driver, petitioner
F) And for attorney's fees — P10,000.00;
claims that the original negligence of its driver was not the
and to pay the costs in both cases. proximate cause of the accident and that the sole proximate cause
was the supervening negligence of the jeepney driver David Ico
The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in in failing to avoid the accident. It is petitioner's position that even
Civil Case No. 561-R, and the medical expenses in the sum of assuming arguendo, that the bus encroached into the lane of the
P3,273.55, should be deducted from the award in her favor. Cdpr jeepney, the driver of the latter could have swerved the jeepney
towards the spacious dirt shoulder on his right without danger to
All the foregoing amounts herein awarded except the costs shall himself or his passengers.
earn interest at the legal rate from date of this decision until fully
paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.] The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioner's 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. 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. There was
nothing to indicate to David Ico that the bus could not return to
its own lane or was prevented from returning to the proper lane
by anything beyond the control of its driver. Leo Marantan, an
alternate driver of the Pantranco bus who was seated beside the
driver Ramirez at the time of the accident, testified that Ramirez
had no choice but to swerve the steering wheel to the left and
encroach on the jeepney's lane because there was a steep
precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However,
this is belied by the evidence on record which clearly shows that
there was enough space to swerve the bus back to its own lane
without any danger [CA Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals found
that at the time of the accident the Pantranco bus was speeding
towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time
David Ico must have realized that the bus was not returning to its
own lane, it was already too late to swerve the jeepney to his
right to prevent an accident. The speed at which the approaching
bus was running prevented David Ico from swerving the jeepney
to the right shoulder of the road in time to avoid the collision.
Thus, even assuming that the jeepney driver perceived the danger
a few seconds before the actual collision, he had no opportunity
to avoid it. This Court has held that the last clear chance doctrine
"can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the
application of all means at hand after the peril is or should have
been discovered" [Ong v. Metropolitan Water District, supra].
prcd
Petitioner likewise insists that David Ico was negligent in failing
to observe Section 43 (c), Article III Chapter IV of Republic Act
No. 4136 * which provides that the driver of a vehicle entering a
through highway or a stop intersection shall yield the right of
way to all vehicles approaching in either direction on such
through highway.
Page 25 of 66
Petitioner's misplaced reliance on the aforesaid law is readily
apparent in this case. The cited law itself provides that it applies
only to vehicles entering a through highway or a stop
intersection. At the time of the accident, the jeepney had already
crossed the intersection and was on its way to Malalam River.
Petitioner itself cited Fe Ico's testimony that the accident
occurred after the jeepney had travelled a distance of about two
(2) meters from the point of intersection [Petition p. 10; Rollo, p.
27]. In fact, even the witness for the petitioner, Leo Marantan,
testified that both vehicles were coming from opposite directions
[CA Decision, p. 7; Rollo, p. 50], clearly indicating that the
jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of
petitioner's 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
petitioner's driver a mere remote cause of the accident.
II
On the issue of its liability as an employer, petitioner claims that
it had observed the diligence of a good father of a family to
prevent damage, conformably to the last paragraph of Article
2180 of the Civil Code. Petitioner adduced evidence to show that
in hiring its drivers, the latter are required to have professional
driver's license and police clearance. The drivers must also pass
written examinations, interviews and practical driving tests, and
are required to undergo a six-month training period. Rodrigo San
Pedro, petitioner's Training Coordinator, testified on petitioner's
policy of conducting regular and continuing training programs
and safety seminars for its drivers, conductors, inspectors and
supervisors at a frequency rate of at least two (2) seminars a
month.
On this point, the Court quotes with approval the following
findings of the trial court which was adopted by the Court of
Appeals in its challenged decision:
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, this Court believes that the
evidence submitted by the defendant to show that it exercised the
diligence of a good father of a family in the case of Ramirez, as a
company driver is far from sufficient. No support evidence has
been adduced. The professional driver's license of Ramirez has
not been produced. There is no proof that he is between 25 to 38
years old. There is also no proof as to his educational attainment,
his age, his weight and the fact that he is married or not. Neither
are the result of the written test, psychological and physical test,

among other tests, have been submitted in evidence [sic]. His
NBI or police clearances and clearances from previous
employment were not marked in evidence. No evidence was
presented that Ramirez actually and really attended the seminars.
Vital evidence should have been the certificate of attendance or
certificate of participation or evidence of such participation like a
logbook signed by the trainees when they attended the seminars.
If such records are not available, the testimony of the classmates
that Ramirez was their classmate in said seminar (should have
been presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52]. LLphil
Petitioner contends that the fact that Ambrosio Ramirez was
employed and remained as its driver only means that he
underwent the same rigid selection process and was subjected to
the same strict supervision imposed by petitioner on all
applicants and employees. It is argued by the petitioner that
unless proven otherwise, it is presumed that petitioner observed
its usual recruitment procedure and company polices on safety
and efficiency [Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio
Ramirez gave rise to the presumption of negligence on the part of
petitioner and the burden of proving that it exercised due
diligence not only in the selection of its employees but also in
adequately supervising their work rests with the petitioner [Lilius
v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v.
Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623].
Contrary to petitioner's claim, there is no presumption that the
usual recruitment procedures and safety standards were observed.
The mere issuance of rules and regulations and the formulation of
various company policies on safety, without showing that they
are being complied with, are not sufficient to exempt petitioner
from liability arising from the negligence of its employee. It is
incumbent upon petitioner to show that in recruiting and
employing the erring driver, the recruitment procedures and
company policies on efficiency and safety were followed.
Petitioner failed to do this. Hence, the Court finds no cogent
reason to disturb the finding of both the trial court and the Court
of Appeals that the evidence presented by the petitioner, which
consists mainly of the uncorroborated testimony of its Training
Coordinator, is insufficient to overcome the presumption of
negligence against petitioner. LexLib
III
On the question of damages, petitioner claims that the Court of
Appeals erred in fixing the damages for the loss of earning
capacity of the deceased victims. Petitioner assails respondent
court's findings because no documentary evidence in support
thereof, such as income tax returns, pay-rolls, pay slips or
invoices obtained in the usual course of business, were presented
[Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare and
self-serving testimonies of the wife of the deceased David Ico
and the mother of the deceased Marilyn Baesa . . . have no
probative value to sustain in law the Court of Appeals' conclusion
Page 26 of 66
on the respective earnings of the deceased victims." [Petition, pp.
21-22; Rollo, pp. 38-39.] It is petitioner's contention that the
evidence presented by the private respondent does not meet the
requirements of clear and satisfactory evidence to prove actual
and compensatory damages.
The Court finds that the Court of Appeals committed no
reversible error in fixing the amount of damages for the loss of
earning capacity of the deceased victims. While it is true that
private respondents should have presented documentary evidence
to support their claim for damages for loss of earning capacity of
the deceased victims, the absence thereof does not necessarily bar
the recovery of the damages in question. The testimony of Fe Ico
and Francisca Bascos as to the earning capacity of David Ico, and
the spouses Baesa, respectively, are sufficient to establish a basis
from which the court can make a fair and reasonable estimate of
the damages for the loss of earning capacity of the three deceased
victims. Moreover, in fixing the damages for loss of earning
capacity of a deceased victim, the court can consider the nature
of his occupation, his educational attainment and the state of his
health at the time of death.
In the instant case, David Ico was thirty eight (38) years old at
the time of his death in 1981 and was driving his own passenger
jeepney. The spouses Ceasar and Marilyn Baesa were both thirty
(30) years old at the time of their death. Ceasar Baesa was a
commerce degree holder and the proprietor of the Cauayan Press,
printer of the Cauayan Valley Newspaper and the Valley Times at
Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976
and at the time of her death, was the company nurse, personnel
manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors, together
with the uncontradicted testimonies of Fe Ico and Francisca
Bascos, in fixing the amount of damages for the loss of earning
capacity of David Ico and the spouses Baesa. LibLex
However, it should be pointed out that the Court of Appeals
committed error in fixing the compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa
Thirty Thousand Pesos (P30,000.00) as "compensatory damages
for the death of Harold Jim Baesa and Marcelino Baesa." [CA
Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals
awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity
for the death of Harold Jim Baesa and another Fifteen Thousand
Pesos (P15,000.00) for the death of Marcelino Baesa. This is
clearly erroneous. In the case of People v. de la Fuente, G.R. Nos.
63251-52, December 29, 1983, 126 SCRA 518, the indemnity for
the death of a person was fixed by this Court at Thirty Thousand
Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be
awarded Sixty Thousand Pesos (P60,000.00) as indemnity for the
death of her brothers, Harold Jim Baesa and Marcelino Baesa or
Thirty Thousand Pesos (P30,000.00) for the death of each
brother.
The other items of damages awarded by respondent court which
were not challenged by the petitioner are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED,
and the decision of respondent Court of Appeals is hereby
AFFIRMED with the modification that the amount of
compensatory damages for the death of Harold Jim Baesa and
Marcelino Baesa are increased to Thirty Thousand Pesos
(P30,000.00) each. LLphil
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
Footnotes
* R.A. 4136 is entitled "An Act to Compile the Laws
Relative to Land Transportation and Traffic Rules, To Create A
Land Transportation Commission and other Purposes."
10.SECOND DIVISION
[G.R. No. 57079. September 29, 1989.]
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC.
petitioner, vs. COURT OF APPEALS and SPOUSES
ANTONIO ESTEBAN and GLORIA ESTEBAN,
respondents.
SYLLABUS
1. REMEDIAL LAW; ACTIONS MOTION FOR
RECONSIDERATION; SECOND MOTION FOR
RECONSIDERATION MUST BE FILED WITHIN THE
FIFTEEN (15) DAY PERIOD DEDUCTING THEREFROM
THE TIME IN WHICH THE FIRST MOTION WAS PENDING.
— Section 1, Rule 52 of the Rules of Court, which had
procedural governance at the time, provided that a second motion
for reconsideration may be presented within fifteen (15) days
from notice of the order or judgment deducting the time in which
the first motion has been pending. Private respondents having
filed their first motion for reconsideration on the last day of the
reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying said
motion to file, with leave of court, a second motion for
reconsideration.
2. ID.; ID.; ID.; OPTIONS OF PARTY WHERE HIS
MOTION FOR RECONSIDERATION WAS DENIED; CASE
AT BAR. — In the present case, after their receipt on February
22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options.
On February 23, 1980, the remaining one (1) day of the aforesaid
reglementary period, they could have filed a motion for leave of
court to file a second motion for reconsideration, conceivably
with a prayer for the extension of the period within which to do
so. On the other hand, they could have appealed through a
petition for review on certiorari to this Court within fifteen (15)
days from February 23, 1980. Instead, they filed a motion for
Page 27 of 66
leave to file a second motion 'for reconsideration on February 29,
1980, and said second motion for reconsideration on March 7,
1980, both of which motions were by then time-barred.
3. ID.; ID.; EXPIRATION OF THE FIFTEEN (15) DAY
PERIOD, DEPRIVES THE COURT OF JURISDICTION TO
TAKE FURTHER PROCEEDINGS ON THE CASE. — After
the expiration on February 24, 1980 of the original fifteen (15)
day period, the running of which was suspended during the
pendency of the first motion for reconsideration, the Court of
Appeals could no longer validly take further proceedings on the
merits of the case, much less to alter, modify or reconsider its
aforesaid decision and or resolution. The filing of the motion for
leave to file a second motion for reconsideration by herein
respondents on February 29, 1980 and the subsequent filing of
the motion itself on March 7, 1980, after the expiration of the
reglementary period to file the same, produced no legal effects.
Only a motion for re-hearing or reconsideration filed in time shall
stay the final order or judgment sought to be re-examined.
4. ID.; ID.; MOTION FOR EXTENSION OF TIME
MUST BE FILED PRIOR TO THE EXPIRATION OF THE
PERIOD SOUGHT TO BE EXTENDED. — An application for
extension of time must be filed prior to the expiration of the
period sought to be extended.
5. ID.; ID.; JUDGMENT; FINALITY OF DECISION,
DIVEST THE COURT OF JURISDICTION TO ALTER OR
AMEND, MUCH LESS REVOKE IT. — Once a decision has
become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or
amend, much less revoke it. The decision rendered anew is null
and void. The court's inherent power to correct its own errors
should be exercised before the finality of the decision or order
sought to be corrected, otherwise litigation will be endless and no
question could be considered finally settled.
6. ID.; ID.; MOTION FOR RECONSIDERATION;
GRANT THEREOF RESTS ON THE SOUND JUDICIAL
DISCRETION. — Although the granting or denial of a motion
for reconsideration involves the exercise of discretion, the same
should not be exercised whimsically, capriciously or arbitrarily,
but prudently in conformity with law, justice, reason and equity.
7. ID.; EVIDENCE; FINDINGS OF FACT OF THE
COURT OF APPEALS CONTRARY TO THAT OF THE TRIAL
COURT, UPHELD ON APPEAL. — We find no error in the
findings of the respondent court in its original decision that the
accident which befell private respondents was due to the lack of
diligence of respondent Antonio Esteban and was not imputable
to negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment and
evaluation of the evidence on record, as evidenced by the
respondent court's resolution of January 24, 1980.
8. CIVIL LAW; OBLIGATIONS AND CONTRACTS;
EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICT;

OMISSION TO PERFORM A DUTY CONSTITUTES THE
PROXIMATE CAUSE ONLY WHEN THE DOING OF SUCH
WOULD HAVE PREVENTED THE INJURY. — The omission
to perform a duty, such as the placing of warning signs on the site
of the excavation, constitutes the proximate cause only when the
doing of the said omitted act would have prevented the injury.
9. ID.; DAMAGES; A PARTY CANNOT CHARGE
ANOTHER FOR THE DAMAGE CAUSED BY HIS OWN
NEGLIGENCE. — It is basic that private respondents cannot
charge PLDT for their injuries where their own failure to exercise
due and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a reasonable
degree of caution for his own protection. Furthermore,
respondent Antonio Esteban had the last clear chance or
opportunity to avoid the accident, notwithstanding the negligence
he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the
presence and location of the excavations there. It was his
negligence that exposed him and his wife to danger, hence he is
solely responsible for the consequences of his imprudence.
10. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF
AND PRESUMPTIONS; A PERSON CLAIMING DAMAGES
HAS THE BURDEN OF PROVING THE EXISTENCE OF
FAULT OR NEGLIGENCE OF ANOTHER CAUSING THE
DAMAGE. — A person claiming damages for the negligence of
another has the burden of proving the existence of such fault or
negligence causative thereof. The facts constitutive of negligence
must be affirmatively established by competent evidence.
Whosoever relies on negligence for his cause of action has the
burden in the first instance of proving the existence of the same if
contested, otherwise his action must fail.
DECISION
REGALADO, J p:
This case had its inception in an action for damages instituted in
the former Court of First Instance of Negros Occidental 1 by
private respondent spouses against petitioner Philippine Long
Distance Telephone Company (PLDT, for brevity) for the injuries
they sustained in the evening of July 30, 1968 when their jeep ran
over a mound of earth and fell into an open trench, an excavation
allegedly undertaken by PLDT for the installation of its
underground conduit system. The complaint alleged that
respondent Antonio Esteban failed to notice the open trench
which was left uncovered because of the creeping darkness and
the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her
arms, legs and face, leaving a permanent scar on her cheek, while
the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the
injuries sustained by respondent spouses were the result of their
own negligence and that the entity which should be held
Page 28 of 66
responsible, if at all, is L.R. Barte and Company (Barte, for
short), an independent contractor which undertook the
construction of the manhole and the conduit system. 3
Accordingly, PLDT filed a third-party complaint against Barte
alleging that, under the terms of their agreement, PLDT should in
no manner be answerable for any accident or injuries arising
from the negligence or carelessness of Barte or any of its
employees. 4 In answer thereto, Barte claimed that it was not
aware nor was it notified of the accident involving respondent
spouses and that it had complied with the terms of its contract
with PLDT by installing the necessary and appropriate standard
signs in the vicinity of the work site, with barricades at both ends
of the excavation and with red lights at night along the excavated
area to warn the traveling public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of
private respondents, the decretal part of which reads:
"IN VIEW OF THE FOREGOING considerations the defendant
Philippine Long Distance Telephone Company is hereby ordered
(A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as
moral damages and P5,000.00 exemplary damages; to plaintiff
Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from
the date of the filing of the complaint until fully paid. The
defendant is hereby ordered to pay the plaintiff the sum of
P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to
reimburse whatever amount the defendant-third party plaintiff
has paid to the plaintiff. With costs against the defendant." 6
From this decision both PLDT and private respondents appealed,
the latter appealing only as to the amount of damages. Third-
party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the
Court of Appeals rendered a decision in said appealed case, with
Justice Corazon Juliano Agrava as ponente, reversing the
decision of the lower court and dismissing the complaint of
respondent spouses. It held that respondent Esteban spouses were
negligent and consequently absolved petitioner PLDT from the
claim for damages. 7 A copy of this decision was received by
private respondents on October 10, 1979, 8 On October 25, 1979,
said respondents filed a motion for reconsideration dated October
24, 1979. 9 On January 24, 1980, the Special Ninth Division of
the Court of Appeals denied said motion for reconsideration. 10
This resolution was received by respondent spouses on February
22, 1980. 11
On February 29, 1980, respondent Court of Appeals received
private respondents' motion for leave of court to file a second
motion for reconsideration, dated February 27, 1980. 12 On
March 11, 1980, respondent court, in a resolution likewise
penned by Justice Agrava, allowed respondents to file a second
motion for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private respondents

on April 1, 1980 but prior thereto, private respondents had
already filed their second motion for reconsideration on March 7,
1980. 14
On April 30, 1980 petitioner PLDT filed an opposition to and or
motion to dismiss said second motion for reconsideration. 15 The
Court of Appeals, in view of the divergent opinions on the
resolution of the second motion for reconsideration, designated
two additional justices to form a division of five. 16 On
September 3, 1980, said division of five promulgated its
resolution, penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the resolution
dated January 24, 1980, and affirming in toto the decision of the
lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set
aside and/or for reconsideration of the resolution of September 3,
1980, contending that the second motion for reconsideration of
private respondent spouses was filed out of time and that the
decision of September 25, 1979 penned by Justice Agrava was
already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the
contract between them and, under the independent contractor
rule, PLDT is not liable for the acts of an independent contractor.
18 On May 11, 1981, respondent Court of Appeals promulgated
its resolution denying said motion to set aside and/or for
reconsideration and affirming in toto the decision of the lower
court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari,
petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying
private respondents' second motion for reconsideration on the
ground that the decision of the Special Second Division, dated
September 25, 1979, and the resolution of the Special Ninth
Division, dated January 24, 1980, are already final, and on the
additional ground that said second motion for reconsideration is
pro forma.
2. Respondent court erred in reversing the aforesaid
decision and resolution and in misapplying the independent
contractor rule in holding PLDT liable to respondent Esteban
spouses.
A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and admitted by both
parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the
Court of Appeals with Justice Agrava as ponente;
(b) October 10, 1979, a copy of said decision was received
by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed
by private respondents;
Page 29 of 66
(d) January 24, 1980, a resolution was issued denying said
motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was
received by private respondents;
(f) February 29, 1980, a motion for leave to file a second
motion for reconsideration was filed by private respondents;
(g) March 7, 1980, a second motion for reconsideration was
filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing
respondents to file a second motion for reconsideration within ten
(10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by
Justice Zosa, reversing the original decision dated September 25,
1979 and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the
motion for leave to file a second motion for reconsideration and,
consequently, said second motion for reconsideration itself were
filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural
governance at the time, provided that a second motion for
reconsideration may be presented within fifteen (15) days from
notice of the order or judgment deducting the time in which the
first motion has been pending. 20 Private respondents having
filed their first motion for reconsideration on the last day of the
reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying said
motion to file, with leave of court, a second motion for
reconsideration. 21 In the present case, after their receipt on
February 22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options.
On February 23, 1980, the remaining one (1) day of the aforesaid
reglementary period, they could have filed a motion for leave of
court to file a second motion for reconsideration, conceivably
with a prayer for the extension of the period within which to do
so. On the other hand, they could have appealed through a
petition for review on certiorari to this Court within fifteen (15)
days from February 23, 1980. 22 Instead, they filed a motion for
leave to file a second motion for reconsideration on February 29,
1980, and said second motion for reconsideration on March 7,
1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the
original fifteen (15) day period, the running of which was
suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly
take further proceedings on the merits of the case, much less to
alter, modify or reconsider its aforesaid decision and or
resolution. The filing of the motion for leave to file a second
motion for reconsideration by herein respondents on February 29,
1980 and the subsequent filing of the motion itself on March 7,
1980, after the expiration of the reglementary period to file the

same, produced no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final order or judgment
sought to be re-examined. 23
The consequential result is that the resolution of respondent court
of March 11, 1980 granting private respondents' aforesaid motion
for leave and, giving them an extension often (10) days to file a
second motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had already
expired when private respondents sought leave to file the same,
and respondent court no longer had the power to entertain or
grant the said motion. The aforesaid extension of ten (10) days
for private respondents to file their second motion for
reconsideration was of no legal consequence since it was given
when there was no more period to extend. It is an elementary rule
that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. 24 Necessarily,
the discretion of respondent court to grant said extension for
filing a second motion for reconsideration is conditioned upon
the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's
decision, dated September 25, 1979, became final and executory
on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for reconsideration
and reversing the original decision are null and void and cannot
disturb the finality of the judgment nor restore jurisdiction to
respondent court. This is but in line with the accepted rule that
once a decision has become final and executory it is removed
from the power and jurisdiction of the court which rendered it to
further alter or amend, much less revoke it. 25 The decision
rendered anew is null and void. 26 The court's inherent power to
correct its own errors should be exercised before the finality of
the decision or order sought to be corrected, otherwise litigation
will be endless and no question could be considered finally
settled. Although the granting or denial of a motion for
reconsideration involves the exercise of discretion, 27 the same
should not be exercised whimsically, capriciously or arbitrarily,
but prudently in conformity with law, justice, reason and equity.
28
Prescinding from the aforesaid procedural lapses into the
substantive merits of the case, we find no error in the findings of
the respondent court in its original decision that the accident
which befell private respondents was due to the lack of diligence
of respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such findings
were reached after an exhaustive assessment and evaluation of
the evidence on record, as evidenced by the respondent court's
resolution of January 24, 1980 which we quote with approval:
"First. Plaintiff's jeep was running along the inside lane of
Lacson Street. If it had remained on that inside lane, it would not
have hit the ACCIDENT MOUND.
Page 30 of 66
"Exhibit B shows, through the tiremarks, that the ACCIDENT
MOUND was hit by the jeep swerving from the left that is,
swerving from the inside lane. What caused the swerving is not
disclosed; but, as the cause of the accident, defendant cannot be
made liable for the damages suffered by plaintiffs. The accident
was not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the inside lane.
That may explain plaintiff-husband's insistence that he did not
see the ACCIDENT MOUND for which reason he ran into it.
"Second. That plaintiff's Jeep was on the inside lane before it
swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the south of
the ACCIDENT MOUND.
"It has been stated that the ditches along Lacson Street had
already been covered except the 3 or 4 meters where the
ACCIDENT MOUND was located. Exhibit B-1 shows that the
ditches on Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as to allow the outer
lane to be freely and conveniently passable to vehicles. The
situation could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as
plaintiff-husband claimed. At that speed, he could have braked
the vehicle the moment it struck the ACCIDENT MOUND. The
jeep would not have climbed the ACCIDENT MOUND several
feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiffs would not have been thrown against
the windshield and they would not have suffered their injuries.
"Fourth. If the accident did not happen because the jeep was
running quite fast on the inside lane and for some reason or other
it had to swerve suddenly to the right and had to climb over the
ACCIDENT MOUND, then plaintiff-husband had not exercised
the diligence of a good father of a family to avoid the accident.
With the drizzle, he should not have run on dim lights, but should
have put on his regular lights which should have made him see
the ACCIDENT MOUND in time. If he was running on the
outside lane at 25 kilometers an hour, even on dim lights, his
failure to see the ACCIDENT MOUND in time to brake the car
was negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet
wide. If he did not see the ACCIDENT MOUND in time, he
would not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND, having seen
it many previous times. With ordinary precaution, he should have
driven his jeep on the night of the accident so as to avoid hitting
the ACCIDENT MOUND." 29
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory to his
injuries and those of his wife but goes to the very cause of the
occurrence of the accident, as one of its determining factors, and

thereby precludes their right to recover damages. 30 The perils of
the road were known to, hence appreciated and assumed by,
private respondents. By exercising reasonable care and prudence,
respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was
some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely
prevented the accident; the only purpose of said signs was to
inform and warn the public of the presence of excavations on the
site. The private respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the jeep from
the inside lane towards the accident mound. As opined in some
quarters, the omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes the
proximate cause only when the doing of the said omitted act
would have prevented the injury. 31 It is basic that private
respondents cannot charge PLDT for their injuries where their
own failure to exercise due and reasonable care was the cause
thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last clear
chance or opportunity to avoid the accident, notwithstanding the
negligence he imputes to petitioner PLDT. As a resident of
Lacson Street, he passed on that street almost everyday and had
knowledge of the presence and location of the excavations there.
It was his negligence that exposed him and his wife to danger,
hence he is solely responsible for the consequences of his
imprudence. LibLex
Moreover, we also sustain the findings of respondent Court of
Appeals in its original decision that there was insufficient
evidence to prove any negligence on the part of PLDT. We have
for consideration only the self-serving testimony of respondent
Antonio Esteban and the unverified photograph of merely a
portion of the scene of the accident. The absence of a police
report of the incident and the non-submission of a medical report
from the hospital where private respondents were allegedly
treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended
resolution of January 24, 1980 —
"(a) There was no third party eyewitness of the accident. As
to how the accident occurred, the Court can only rely on the
testimonial evidence of plaintiffs themselves, and such evidence
should be very carefully evaluated, with defendant, as the party
being charged, being given the benefit of any doubt. Definitely
without ascribing the same motivation to plaintiffs, another
person could have deliberately engineered a similar accident in
the hope and expectation that the Court can grant him substantial
moral and exemplary damages from the big corporation that
defendant is. The statement is made only to stress the
disadvantageous position of defendant which would have
extreme difficulty in contesting such person's claim. If there were
Page 31 of 66
no witness or record available from the police department of
Bacolod, defendant would not be able to determine for itself
which of the conflicting testimonies of plaintiffs is correct as to
the report or non-report of the accident to the police department."
32
A person claiming damages for the negligence of another has the
burden of proving the existence of such fault or negligence
causative thereof. The facts constitutive of negligence must be
affirmatively established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the burden in the
first instance of proving the existence of the same if contested,
otherwise his action must fail. LLpr
WHEREFORE, the resolutions of respondent Court of Appeals,
dated March 11, 1980 and September 3, 1980, are hereby SET
ASIDE. Its original decision, promulgated on September 25,
1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
11.FIRST DIVISION
[G.R. No. 65295. March 10, 1987.]
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners, vs. THE INTERMEDIATE
APPELLATE COURT and LEONARDO DIONISIO,
respondents.
DECISION
FELICIANO, J p:
In the early morning of 15 November 1975— at about 1:30 a.m.
— private respondent Leonardo Dionisio was on his way home
— he lived in 1214-B Zamora Street, Bangkal, Makati — from a
cocktails-and-dinner meeting with his boss, the general manager
of a marketing corporation. During the cocktails phase of the
evening, Dionisio had taken "a shot or two" of liquor. Dionisio
was driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets at
Bangkal, Makati, not far from his home, and was proceeding
down General Lacuna Street, when his car headlights (in his
allegation) suddenly failed. He switched his headlights on
"bright" and thereupon he saw a Ford dump truck looming some
2-1/2 meters away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix Construction Inc.
("Phoenix"), was parked on the right hand side of General
Lacuna Street (i.e., on the right hand side of a person facing in
the same direction toward which Dionisio's car was proceeding),
facing the oncoming traffic. The dump truck was parked askew
(not parallel to the street curb) in such a manner as to stick out
onto the street, partly blocking the way of oncoming traffic.
There were no lights nor any so-called "early warning" reflector
devices set anywhere near the dump truck, front or rear. The

dump truck had earlier that evening been driven home by
petitioner Armando U. Carbonel, its regular driver, with the
permission of his employer Phoenix, in view of work scheduled
to be carried out early the following morning. Dionisio claimed
that he tried to avoid a collision by swerving his car to the left but
it was too late and his car smashed into the dump truck. As a
result of the collision, Dionisio suffered some physical injuries
including some permanent facial scars, a "nervous breakdown"
and loss of two gold bridge dentures. LLpr
Dionisio commenced an action for damages in the Court of First
Instance of Pampanga basically claiming that the legal and
proximate cause of his injuries was the negligent manner in
which Carbonel had parked the dump truck entrusted to him by
his employer Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's injuries was his
own recklessness in driving fast at the time of the accident, while
under the influence of liquor, without his headlights on and
without a curfew pass. Phoenix also sought to establish that it had
exercised due care in the selection and supervision of the dump
truck driver.
The trial court rendered judgment in favor of Dionisio and
against Phoenix and Carbonel and ordered the latter:
"(1) To pay plaintiff jointly and severally the sum of
P15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of
P150,000.00 as loss of expected income for plaintiff brought
about the accident in controversy and which is the result of the
negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of
P100,000.00 as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a marketing
man; mental anguish, wounded feeling, serious anxiety, social
humiliation, besmirched reputation, feeling of economic
insecurity, and the untold sorrows and frustration in life
experienced by plaintiff and his family since the accident in
controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of
P10,000.00 as exemplary damages for the wanton disregard of
defendants to settle amicably this case with the plaintiff before
the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of
P4,500.00 due as and for attorney's fees; and
(6) The cost of suit." (Emphasis supplied).
Phoenix and Carbonel appealed to the Intermediate Appellate
Court. That court in CA-G.R. No. 65476 affirmed the decision of
the trial court but modified the award of damages to the
following extent:
Page 32 of 66
1. The award of P15,000.00 as compensatory damages was
reduced to P6,460.71, the latter being the only amount that the
appellate court found the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of expected income
was reduced to P100,000.00, basically because Dionisio had
voluntarily resigned his job such that, in the opinion of the
appellate court, his loss of income "was not solely attributable to
the accident in question;" and
3. The award of P100,000.00 as moral damages was held
by the appellate court as excessive and unconscionable and hence
reduced to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00
as attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before
us on a petition for review.
Both the trial court and the appellate court had made fairly
explicit findings of fact relating to the manner in which the dump
truck was parked along General Lacuna Street on the basis of
which both courts drew the inference that there was negligence
on the part of Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts failed to
pass upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not the way in
which the dump truck had been parked but rather the reckless
way in which Dionisio had driven his car that night when he
smashed into the dump truck. The Intermediate Appellate Court
in its questioned decision casually conceded that Dionisio was
"in some way, negligent" but apparently failed to see the
relevance of Dionisio's negligence and made no further mention
of it. We have examined the record both before the trial court and
the Intermediate Appellate Court and we find that both parties
had placed into the record sufficient evidence on the basis of
which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless
manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there was
negligence in the manner in which the dump truck was parked,
that negligence was merely a "passive and static condition" and
that private respondent Dionisio's recklessness constituted an
intervening, efficient cause determinative of the accident and the
injuries he sustained. The need to administer substantial justice as
between the parties in this case, without having to remand it back
to the trial court after eleven years, compels us to address directly
the contention put forward by the petitioners and to examine for
ourselves the record pertaining to Dionisio's alleged negligence
which must bear upon the liability, or extent of liability, of
Phoenix and Carbonel. llcd
There are four factual issues that need to be looked into: (a)
whether or not private respondent Dionisio had a curfew pass

valid and effective for that eventful night; (b) whether Dionisio
was driving fast or speeding just before the collision with the
dump truck; (c) whether Dionisio had purposely turned off his
car's headlights before contact with the dump truck or whether
those headlights accidentally malfunctioned moments before the
collision; and (d) whether Dionisio was intoxicated at the time of
the accident.
As to the first issue relating to the curfew pass, it is clear that no
curfew pass was found on the person of Dionisio immediately
after the accident nor was any found in his car. Phoenix's
evidence here consisted of the testimony of Patrolman Cuyno
who had taken Dionisio, unconscious, to the Makati Medical
Center for emergency treatment immediately after the accident.
At the Makati Medical Center, a nurse took off Dionisio's clothes
and examined them along with the contents of pockets together
with Patrolman Cuyno. 1 Private respondent Dionisio was not
able to produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have misplaced his
curfew pass. He also offered a certification (dated two years after
the accident) issued by one Major Benjamin N. Libarnes of the
Zone Integrated Police Intelligence Unit of Camp Olivas, San
Fernando, Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila. This certification
was to the effect that private respondent Dionisio had a valid
curfew pass. This certification did not, however, specify any pass
serial number or date or period of effectivity of the supposed
curfew pass. We find that private respondent Dionisio was unable
to prove possession of a valid curfew pass during the night of the
accident and that the preponderance of evidence shows that he
did not have such a pass during that night. The relevance of
possession or non-possession of a curfew pass that night lies in
the light it tends to shed on the other related issues: whether
Dionisio was speeding home and whether he had indeed
purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby
police station for travelling after the onset of curfew without a
valid curfew pass. LibLex
On the second issue — whether or not Dionisio was speeding
home that night — both the trial court and the appellate court
were completely silent.
The defendants in the trial court introduced the testimony of
Patrolman Cuyno who was at the scene of the accident almost
immediately after it occurred, the police station where he was
based being barely 200 meters away. Patrolman Cuyno testified
that people who had gathered at the scene of the accident told
him that Dionisio's car was "moving fast" and did not have its
headlights on. 2 Dionisio, on the other hand, claimed that he was
travelling at a moderate speed at 30 kilometers per hour and had
just crossed the intersection of General Santos and General
Lacuna Streets and had started to accelerate when his headlights
failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's
testimony was hearsay and did not fall within any of the
Page 33 of 66
recognized exceptions to the hearsay rule since the facts he
testified to were not acquired by him through official information
and had not been given by the informants pursuant to any duty to
do so. Private respondent's objection fails to take account of the
fact that the testimony of Patrolman Cuyno is admissible not
under the official records exception to the hearsay rule 4 but
rather as part of the res gestae. 5 Testimonial evidence under this
exception to the hearsay rule consists of excited utterances made
on the occasion of an occurrence or event sufficiently startling in
nature so as to render inoperative the normal reflective thought
processes of the observer and hence made as a spontaneous
reaction to the occurrence or event, and not the result of
reflective thought. 6
We think that an automobile speeding down a street and suddenly
smashing into a stationary object in the dead of night is a
sufficiently startling event as to evoke spontaneous, rather than
reflective, reactions from observers who happened to be around
at that time. The testimony of Patrolman Cuyno was therefore
admissible as part of the res gestae and should have been
considered by the trial court. Clearly, substantial weight should
have been ascribed to such testimony, even though it did not, as it
could not, have purported to describe quantitatively the precise
velocity at which Dionisio was travelling just before impact with
the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his
headlights, or whether his headlights accidentally malfunctioned,
just moments before the accident. The Intermediate Appellate
Court expressly found that the headlights of Dionisio's car went
off as he crossed the intersection but was non-committal as to
why they did so. It is the petitioners' contention that Dionisio
purposely shut off his headlights even before he reached the
intersection so as not to be detected by the police in the police
precinct which he (being a resident in the area) knew was not far
away from the intersection. We believe that the petitioners' theory
is a more credible explanation than that offered by private
respondent Dionisio — i.e., that he had his headlights on but that,
at the crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright" split
seconds before contact with the dump truck. prcd
A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the effect that
private respondent Dionisio smelled of liquor at the time he was
taken from his smashed car and brought to the Makati Medical
Center in an unconscious condition. 7 This testimony has to be
taken in conjunction with the admission of Dionisio that he had
taken "a shot or two" of liquor before dinner with his boss that
night. We do not believe that this evidence is sufficient to show
that Dionisio was so heavily under the influence of liquor as to
constitute his driving a motor vehicle per se an act of reckless
imprudence. 8 There simply is not enough evidence to show how
much liquor he had in fact taken and the effects of that upon his

physical faculties or upon his judgment or mental alertness. We
are also aware that "one shot or two" of hard liquor may affect
different people differently.
The conclusion we draw from the factual circumstances outlined
above is that private respondent Dionisio was negligent the night
of the accident. He was hurrying home that night and driving
faster than he should have been. Worse, he extinguished his
headlights at or near the intersection of General Lacuna and
General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause
of the accident and of Dionisio's injuries was the wrongful or
negligent manner in which the dump truck was parked — in
other words, the negligence of petitioner Carbonel. That there
was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a
natural and foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck driver's negligence
was merely a "passive and static condition" and that private
respondent Dionisio's negligence was an "efficient intervening
cause," and that consequently Dionisio's negligence must be
regarded as the legal and proximate cause of the accident rather
than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any
validity for our jurisdiction. We note, firstly, that even in the
United States, the distinctions between "cause" and "condition"
which the petitioners would have us adopt have already been
"almost entirely discredited." Professors Prosser and Keeton
make this quite clear: LibLex
"Cause and condition. Many courts have sought to distinguish
between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant has
created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the
fact of causation is concerned, in the sense of necessary
antecedents which have played an important part in producing
the result, it is quite impossible to distinguish between active
forces and passive situations, particularly since, as is invariably
the case, the latter are the result of other active forces which have
gone before. The defendant who spills gasoline about the
premises creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the gasoline,
the condition has done quite as much to bring about the fire as
the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility. Even the
lapse of a considerable time during which the "condition"
remains static will not necessarily affect liability; one who digs a
Page 34 of 66
trench in the highway may still be liable to another who falls into
it a month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction is now
almost entirely discredited. So far as it has any validity at all, it
must refer to the type of case where the forces set in operation by
the defendant have come to rest in a position of apparent safety,
and some new force intervenes. But even in such cases, it is not
the distinction between "cause" and "condition" which is
important, but the nature of the risk and the character of the
intervening cause." 9
We believe, secondly, that the truck driver's negligence far from
being a "passive and static condition" was rather an indispensable
and efficient cause. The collision between the dump truck and the
private respondent's car would in all probability not have
occurred had the dump truck not been parked askew without any
warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone
driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the
truck driver's negligence and therefore closer to the accident, was
not an efficient intervening or independent cause. What the
petitioners describe as an "intervening cause" was no more than a
foreseeable consequence of the risk created by the negligent
manner in which the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose
upon them the very risk the truck driver had created. Dionisio's
negligence was not of an independent and overpowering nature
as to cut, as it were, the chain of causation in fact between the
improper parking of the dump truck and the accident, nor to sever
the juris vinculum of liability. It is helpful to quote once more
from Prosser and Keeton: prLL
"Foreseeable Intervening Causes. If the intervening cause is one
which in ordinary human experience is reasonably to be
anticipated, or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be
negligent, among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that reason.
Thus one who sets a fire may be required to foresee that an
ordinary, usual and customary wind arising later will spread it
beyond the defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may
foresee the risk of fire from some independent source. . . . In all
of these cases there is an intervening cause combining with the
defendant's conduct to produce the result, and in each case the
defendant's negligence consists in failure to protect the plaintiff
against that very risk.
Obviously the defendant cannot be relieved from liability by the
fact that the risk or a substantial and important part of the risk, to
which the defendant has subjected the plaintiff has indeed come
to pass. Foreseeable intervening forces are within the scope of

the original risk, and hence of the defendant's negligence. The
courts are quite generally agreed that intervening causes which
fall fairly in this category will not supersede the defendant's
responsibility.
Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all ordinary
forces of nature such as usual wind or rain, or snow or frost or
fog or even lightning; that one who leaves an obstruction on the
road or a railroad track should foresee that a vehicle or a train
will run into it; . . . .
The risk created by the defendant may include the intervention of
the foreseeable negligence of others. . . . [T]he standard of
reasonable conduct may require the defendant to protect the
plaintiff against `that occasional negligence which is one of the
ordinary incidents of human life, and therefore to be anticipated.'
Thus, a defendant who blocks the sidewalk and forces the
plaintiff to walk in a street where the plaintiff will be exposed to
the risks of heavy traffic becomes liable when the plaintiff is run
down by a car, even though the car is negligently driven; and one
who parks an automobile on the highway without lights at night
is not relieved of responsibility when another negligently drives
into it. ---" 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the
injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines). LexLib
Petitioners also ask us to apply what they refer to as the "last
clear chance" doctrine. The theory here of petitioners is that
while the petitioner truck driver was negligent, private
respondent Dionisio had the "last clear chance" of avoiding the
accident and hence his injuries, and that Dionisio having failed to
take that "last clear chance" must bear his own injuries alone.
The last clear chance doctrine of the common law was imported
into our jurisdiction by Picart vs. Smith 11 but it is a matter for
debate whether, or to what extent, it has found its way into the
Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule — that of contributory
negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor
as compared with the wrongful act or omission of the defendant.
13 The common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been negligent
provided that the defendant had the last clear chance to avoid the
casualty and failed to do so. 14 Accordingly, it is difficult to see
what role, if any, the common law last clear chance doctrine has
to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the
plaintiff, has itself been rejected, as it has been in Article 2179 of
the Civil Code of the Philippines. 15
Page 35 of 66
Is there perhaps a general concept of "last clear chance" that may
be extracted from its common law matrix and utilized as a
general rule in negligence cases in a civil law jurisdiction like
ours? We do not believe so. Under Article 2179, the task of a
court, in technical terms, is to determine whose negligence — the
plaintiff's or the defendant's — was the legal or proximate cause
of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of time of
the plaintiff's and the defendant's negligent acts or omissions, is
only one of the relevant factors that may be taken into account.
Of more fundamental importance are the nature of the negligent
act or omission of each party and the character and gravity of the
risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and
therefore his employer) should be absolved from responsibility
for his own prior negligence because the unfortunate plaintiff
failed to act with that increased diligence which had become
necessary to avoid the peril precisely created by the truck driver's
own wrongful act or omission. To accept this proposition is to
come too close to wiping out the fundamental principle of law
that a man must respond for the foreseeable consequences of his
own negligent act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and to allocate
them among the members of society. To accept the petitioners'
proposition must tend to weaken the very bonds of society. cdll
Petitioner Carbonel's proven negligence creates a presumption of
negligence on the part of his employer Phoenix 16 in supervising
its employees properly and adequately. The respondent appellate
court in effect found, correctly in our opinion, that Phoenix was
not able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to bring
the dump truck to his home whenever there was work to be done
early the following morning, when coupled with the failure to
show any effort on the part of Phoenix to supervise the manner in
which the dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando on the
part of Phoenix.
Turning to the award of damages and taking into account the
comparative negligence of private respondent Dionisio on one
hand and petitioners Carbonel and Phoenix upon the other hand,
17 we believe that the demands of substantial justice are satisfied
by allocating most of the damages on a 20-80 ratio. Thus, 20% of
the damages awarded by the respondent appellate court, except
the award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private respondent;
only the balance of 80% needs to be paid by petitioners Carbonel
and Phoenix who shall be solidarily liable therefor to the former.
The award of exemplary damages and attorney's fees and costs
shall be borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. 18 We see no sufficient
reason for disturbing the reduced award of damages made by the
respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is
modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.cdphil
SO ORDERED.
Yap, Narvasa, Cruz, Gancayco and Sarmiento, JJ ., concur.
Melencio-Herrera, J ., on official leave.
12. THIRD DIVISION
[G.R. No.L-47379. May 16, 1988.]
NATIONAL POWER CORPORATION, petitioner, vs.
HONORABLE COURT OF APPEALS and ENGINEERING
CONSTRUCTION, INC., respondents.
[G.R. No.L-47481. May 16, 1988.]
ENGINEERING CONSTRUCTION, INC., petitioner, vs.
COURT OF APPEALS and NATIONAL POWER
CORPORATION, respondents.
Raymundo A. Armovit for private respondent in L-47379.
The Solicitor General for petitioner.
SYLLABUS
1. CIVIL LAW; OBLIGATIONS AND CONTRACTS;
LIABILITY FOR LOSS OR DAMAGE DUE TO FORCE
MAJEURE; PARTY HAVE LIABLE WHERE HIS
NEGLIGENCE WAS THE PROXIMATE CAUSE OF LOSS. —
It is clear from the appellate court's decision that based on its
findings of fact and that of the trial court's, petitioner NPC was
undoubtedly negligent because it opened the spillway gates of the
Angat Dam only at the height of typhoon "Welming" when it
knew very well that it was safer to have opened the same
gradually and earlier, as it was also undeniable that NPC knew of
the coming typhoon at least four days before it actually struck.
And even though the typhoon was an act of God or what we may
call force majeure, NPC cannot escape liability because its
negligence was the proximate cause of the loss and damage.
2. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT
OF THE COURT OF APPEALS GENERALLY NOT
DISTURBED ON APPEAL. — The question of whether or not
there was negligence on the part of NPC is a question of fact
which properly falls within the jurisdiction of the Court of
Appeals and will not be disturbed by this Court unless the same
is clearly unfounded. (Tolentino v. Court of Appeals, [150 SCRA
26, 36])
3. CIVIL LAW; CONSEQUENTIAL DAMAGE;
REDUCED IN CASE AT BAR. — While there was no
categorical statement or admission on the part of ECI that it
Page 36 of 66
bought a new crane to replace the damaged one, a sales contract
was presented to the effect that the new crane would be delivered
to it by Asian Enterprises within 60 days from the opening of the
letter of credit at the cost of P106,336.75. The offer was made by
Asian Enterprises a few days after the flood. As compared to the
amount of P106,336.75 for a brand new crane and paying the
alleged amount of P4,000.00 a day as rental for the use of a
temporary crane, which use petitioner ECI alleged to have lasted
for a period of one year, thus, totalling P120,000.00, plus the fact
that there was already a sales contract between it and Asian
Enterprises, there is no reason why ECI should opt to rent a
temporary crane for a period of one year. The appellate court also
found that the damaged crane was subsequently repaired and
reactivated and the cost of repair was P77,000.00. Therefore, it
included the said amount in the award of compensatory damages,
but not the value of the new crane. We do not find anything
erroneous in the decision of the appellate court that the
consequential damages should represent only the service of the
temporary crane for one month. A contrary ruling would result in
the unjust enrichment of ECI.
4. ID.; EXEMPLARY DAMAGES; AWARD NOT
PROPER IN ABSENCE OF BAD FAITH OR NEGLIGENCE.
— As to the question of exemplary damages, we sustain the
appellate court in eliminating the same since it found that there
was no bad faith on the part of NPC and that neither can the
latter's negligence be considered gross.
DECISION
GUTIERREZ, JR., J p:
These consolidated petitions seek to set aside the decision of the
respondent Court of Appeals which adjudged the National Power
Corporation liable for damages against Engineering
Construction, Inc. The appellate court, however, reduced the
amount of damages awarded by the trial court. Hence, both
parties filed their respective petitions: the National Power
Corporation (NPC) in G.R. No. 47379, questioning the decision
of the Court of Appeals for holding it liable for damages and the
Engineering Construction, Inc. (ECI) in G.R. No. 47481,
questioning the same decision for reducing the consequential
damages and attorney's fees and for eliminating the exemplary
damages.
The facts are succinctly summarized by the respondent Court of
Appeals, as follows:
"On August 4, 1964, plaintiff Engineering Construction, Inc.,
being a successful bidder, executed a contract in Manila with the
National Waterworks and Sewerage Authority (NAWASA),
whereby the former undertook to furnish all tools, labor,
equipment, and materials (not furnished by Owner), and to
construct the proposed 2nd Ipo-Bicti Tunnel, Intake and Outlet
Structures, and Appurtenant Structures, and Appurtenant
Features, at Norzagaray, Bulacan, and to complete said works

within eight hundred (800) calendar days from the date the
Contractor receives the formal notice to proceed (Exh. A).
"The project involved two (2) major phases: the first phase
comprising the tunnel work covering a distance of seven (7)
kilometers, passing through the mountain, from the Ipo river, a
part of Norzagaray, Bulacan, where the Ipo Dam of the defendant
National Power Corporation is located, to Bicti; the other phase
consisting of the outworks at both ends of the tunnel.
"By September 1967, the plaintiff corporation already had
completed the first major phase of the work, namely, the tunnel
excavation work. Some portions of the outworks at the Bicti site
were still under construction. As soon as the plaintiff corporation
had finished the tunnel excavation work at the Bicti site, all the
equipment no longer needed there were transferred to the Ipo site
where some projects were yet to be completed.
"The record shows that on November 4, 1967, typhoon 'Welming'
hit Central Luzon, passing through defendant's Angat Hydro-
electric Project and Dam at Ipo, Norzagaray, Bulacan. Strong
winds struck the project area, and heavy rains intermittently fell.
Due to the heavy downpour, the water in the reservoir of the
Angat Dam was rising perilously at the rate of sixty (60)
centimeters per hour. To prevent an overflow of water from the
dam, since the water level had reached the danger height of 212
meters above sea level, the defendant corporation caused the
opening of the spillway gates." (pp. 45-46, L-47379 Rollo)
The appellate court sustained the findings of the trial court that
the evidence preponderantly established the fact that due to the
negligent manner with which the spillway gates of the Angat
Dam were opened, an extraordinary large volume of water rushed
out of the gates, and hit the installations and construction works
of ECI at the Ipo site with terrific impact, as a result of which the
latter's stockpile of materials and supplies, camp facilities and
permanent structures and accessories were either washed away,
lost or destroyed.
The appellate court further found that:
"It cannot be pretended that there was no negligence or that the
appellant exercised extraordinary care in the opening of the
spillway gates of the Angat Dam. Maintainers of the dam knew
very well that it was far more safe to open them gradually. But
the spillway gates were opened only when typhoon Welming was
already at its height, in a vain effort to race against time and
prevent the overflow of water from the dam as it 'was rising
dangerously at the rate of sixty centimeters per hour.' Action
could have been taken as early as November 3, 1967, when the
water in the reservoir was still low. At that time, the gates of the
dam could have been opened in a regulated manner. Let it be
stressed that the appellant knew of the coming of the typhoon
four days before it actually hit the project area." (p. 53, L-47379
Rollo)
As to the award of damages, the appellate court held:
Page 37 of 66
"We come now to the award of damages. The appellee submitted
a list of estimated losses and damages to the tunnel project (Ipo
side) caused by the instant flooding of the Angat River (Exh. J-
1). The damages were itemized in four categories, to wit: Camp
Facilities — P55,700.00; Equipment, Parts and Plant —
P375,659.51; Materials — P107,175.80; and Permanent
Structures and accessories — P137,250.00, with an aggregate
total amount of P675,785.31. The list is supported by several
vouchers which were all submitted as Exhibits K to M-38-a, N to
O, P to U-2 and V to X-60-a (Vide: Folders Nos. 1 to 4). The
appellant did not submit proofs to traverse the aforementioned
documentary evidence. We hold that the lower court did not
commit any error in awarding P675,785.31 as actual or
compensatory damages."
"However, We cannot sustain the award of P333,200.00 as
consequential damages. This amount is broken down as follows:
P213,200.00 as and for the rentals of a crane to temporarily
replace the one 'destroyed beyond repair,' and P120,000.00 as one
month bonus which the appellee failed to realize in accordance
with the contract which the appellee had with NAWASA. Said
rental of the crane allegedly covered the period of one year at the
rate of P40.00 an hour for 16 hours a day. The evidence,
however, shows that the appellee bought a crane also a crawler
type, on November 10, 1967, six (6) days after the incident in
question (Exh. N). And according to the lower court, which
finding was never assailed, the appellee resumed its normal
construction work on the Ipo-Bicti Project after a stoppage of
only one month. There is no evidence when the appellee received
the crane from the seller, Asian Enterprise Limited. But there was
an agreement that the shipment of the goods would be effected
within 60 days from the opening of the letter of credit (Exh. N).
It appearing that the contract of sale was consummated, We must
conclude or at least assume that the crane was delivered to the
appellee within 60 days as stipulated. The appellee then could
have availed of the services of another crane for a period of only
one month (after a work stoppage of one month) at the rate of
P40.00 an hour for 16 hours a day or a total of P19,200.00 as
rental.
"But the value of the new crane cannot be included as part of
actual damages because the old was reactivated after it was
repaired. The cost of the repair was P77,000.00 as shown in item
No. 1 under the Equipment, Parts and Plants category (Exh. J-1),
which amount of repair was already included in the actual or
compensatory damages." (pp. 54-56, L-47379, Rollo)
The appellate court likewise rejected the award of unrealized
bonus from NAWASA in the amount of P120,000.00 (computed
at P4,000.00 a day in case construction is finished before the
specified time, i.e., within 800 calendar days), considering that
the incident occurred after more than three (3) years or one
thousand one hundred seventy (1,170) days. The court also
eliminated the award of exemplary damages as there was no
gross negligence on the part of NPC and reduced the amount of
attorney's fees from P50,000.00 to P30,000.00. prLL

In these consolidated petitions, NPC assails the appellate court's
decision as being erroneous on the ground that the destruction
and loss of the ECI's equipment and facilities were due to force
majeure. It argues that the rapid rise of the water level in the
reservoir of its Angat Dam due to heavy rains brought about by
the typhoon was an extraordinary occurrence that could not have
been foreseen, and thus, the subsequent release of water through
the spillway gates and its resultant effect, if any, on ECI's
equipment and facilities may rightly be attributed to force
majeure.
On the other hand, ECI assails the reduction of the consequential
damages from P333,200.00 to P19,000.00 on the grounds that the
appellate court had no basis in concluding that ECI acquired a
new Crawler-type crane and therefore, it only can claim rentals
for the temporary use of the leased crane for a period of one
month; and that the award of P4,000.00 a day or P120,000.00 a
month bonus is justified since the period limitation on ECI's
contract with NAWASA had dual effects, ie., bonus for earlier
completion and liquidated damages for delayed performance; and
in either case at the rate of P4,000.00 daily. Thus, since NPC's
negligence compelled work stoppage for a period of one month,
the said award of P120,000.00 is justified. ECI further assails the
reduction of attorney's fees and the total elimination of
exemplary damages.
Both petitions are without merit.
It is clear from the appellate court's decision that based on its
findings of fact and that of the trial court's, petitioner NPC was
undoubtedly negligent because it opened the spillway gates of the
Angat Dam only at the height of typhoon "Welming" when it
knew very well that it was safer to have opened the same
gradually and earlier, as it was also undeniable that NPC knew of
the coming typhoon at least four days before it actually struck.
And even though the typhoon was an act of God or what we may
call force majeure, NPC cannot escape liability because its
negligence was the proximate cause of the loss and damage. As
we have ruled in Juan F. Nakpil & Sons v. Court of Appeals, (144
SCRA 596, 606-607):
"Thus, if upon the happening of a fortuitous event or an act of
God, there concurs a corresponding fraud, negligence, delay or
violation or contravention in any manner of the tenor of the
obligation as provided for in Article 1170 of the Civil Code,
which results in loss or damage, the obligor cannot escape
liability.
"The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively by the
violence of nature and human agencies are to be excluded from
creating or entering into the cause of the mischief. When the
effect, the cause of which is to be considered, is found to be in
part the result of the participation of man, whether it be from
active intervention or neglect, or failure to act, the whole
occurrence is thereby humanized, as it was, and removed from
Page 38 of 66
the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-
1175).
"Thus, it has been held that when the negligence of a person
concurs with an act of God in producing a loss, such person is not
exempt from liability by showing that the immediate cause of the
damage was the act of God. To be exempt from liability for loss
because of an act of God, he must be free from any previous
negligence or misconduct by which the loss or damage may have
been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil.
129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v.
Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45
Phil. 657)."
Furthermore, the question of whether or not there was negligence
on the part of NPC is a question of fact which properly falls
within the jurisdiction of the Court of Appeals and will not be
disturbed by this Court unless the same is clearly unfounded.
Thus, in Tolentino v. Court of Appeals, (150 SCRA 26, 36) we
ruled: cdll
"Moreover, the findings of fact of the Court of Appeals are
generally final and conclusive upon the Supreme Court
(Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it
is settled that the Supreme Court is not supposed to weigh
evidence but only to determine its substantiality (Nuñez v.
Sandiganbayan, 100 SCRA 433 [1982] and will generally not
disturb said findings of fact when supported by substantial
evidence (Aytona v. Court of Appeals, 113 SCRA 575 [1985];
Collector of Customs of Manila v. Intermediate Appellate Court,
137 SCRA 3 [1985]). On the other hand substantial evidence is
defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion (Philippine Metal
Products, Inc. v. Court of Industrial Relations, 90 SCRA 135
[1979]; Police Commission v. Lood, 127 SCRA 757 [1984];
Canete v. WCC, 136 SCRA 302 [1985])."
Therefore, the respondent Court of Appeals did not err in holding
the NPC liable for damages.
Likewise, it did not err in reducing the consequential damages
from P333,200.00 to P19,000.00. As shown by the records, while
there was no categorical statement or admission on the part of
ECI that it bought a new crane to replace the damaged one, a
sales contract was presented to the effect that the new crane
would be delivered to it by Asian Enterprises within 60 days
from the opening of the letter of credit at the cost of P106,336.75.
The offer was made by Asian Enterprises a few days after the
flood. As compared to the amount of P106,336.75 for a brand
new crane and paying the alleged amount of P4,000.00 a day as
rental for the use of a temporary crane, which use petitioner ECI
alleged to have lasted for a period of one year, thus, totalling
P120,000.00, plus the fact that there was already a sales contract
between it and Asian Enterprises, there is no reason why ECI
should opt to rent a temporary crane for a period of one year. The
appellate court also found that the damaged crane was
subsequently repaired and reactivated and the cost of repair was

P77,000.00. Therefore, it included the said amount in the award
of compensatory damages, but not the value of the new crane. We
do not find anything erroneous in the decision of the appellate
court that the consequential damages should represent only the
service of the temporary crane for one month. A contrary ruling
would result in the unjust enrichment of ECI. prcd
The P120,000.00 bonus was also properly eliminated as the same
was granted by the trial court on the premise that it represented
ECI's lost opportunity "to earn the one month bonus from
NAWASA . . ." As stated earlier, the loss or damage to ECI's
equipment and facilities occurred long after the stipulated
deadline to finish the construction. No bonus, therefore, could
have been possibly earned by ECI at that point in time. The
supposed liquidated damages for failure to finish the project
within the stipulated period or the opposite of the claim for bonus
is not clearly presented in the records of these petitions. It is not
shown that NAWASA imposed them.
As to the question of exemplary damages, we sustain the
appellate court in eliminating the same since it found that there
was no bad faith on the part of NPC and that neither can the
latter's negligence be considered gross. In Dee Hua Liong
Electrical Equipment Corp. v. Reyes, (145 SCRA 713, 719) we
ruled:
"Neither may private respondent recover exemplary damages
since he is not entitled to moral or compensatory damages, and
again because the petitioner is not shown to have acted in a
wanton, fraudulent, reckless or oppressive manner (Art. 2234,
Civil Code; Yutuk v. Manila Electric Co., 2 SCRA 377; Francisco
v. Government Service Insurance System, 7 SCRA 577;
Gutierrez v. Villegas, 8 SCRA 527; Air France v. Carrascoso, 18
SCRA 155; Pan Pacific (Phil.) v. Phil. Advertising Corp., 23
SCRA 977; Marchan v. Mendoza, 24 SCRA 888)."
We also affirm the reduction of attorney's fees from P50,000.00
to P30,000.00. There are no compelling reasons why we should
set aside the appellate court's finding that the latter amount
suffices for the services rendered by ECI's counsel.
WHEREFORE, the petitions in G.R. No. 47379 and G.R. No.
47481 are both DISMISSED for LACK OF MERIT. The
decision appealed from is AFFIRMED.
SO ORDERED.
Fernan, Feliciano, Bidin and Cortes, JJ., concur.
13.THIRD DIVISION
[G.R. No. 101683. February 23, 1995.]
LBC AIR CARGO, INC., FERNANDO M. YU and JAIME
TANO, JR., petitioners, vs. HON. COURT OF APPEALS,
Fourth Division, SHERWIN MONTEROLA y OYON-
OYON, represented by PATROCENIA GRONDIANO y
Page 39 of 66
MONTEROLA, and PATROCENIA GRONDIANO y
MONTEROLA, respondents.
SYLLABUS
1. COMMERCIAL LAW; TRANSPORTATION;
COLLISION; DOCTRINE OF "LAST CLEAR CHANCE";
WHEN APPLICABLE; CASE AT BAR. — For every indication,
the proximate cause of the accident was the negligence of Tano
who, despite extremely poor visibility, hastily executed a left turn
(towards the Bislig airport road entrance) without first waiting
for the dust to settle. It was this negligent act of Tano, which had
placed his vehicle (LBC van) directly on the path of the
motorcycle coming from the opposite direction, that almost
instantaneously caused the collision to occur. Simple prudence
required him not to attempt to cross the other lane until after it
would have been safe from and clear of any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear chance" (also
referred to, at times, as "supervening negligence" or as
"discovered peril"). The doctrine, in essence, is to the effect that
where both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof (see Picart vs. Smith,
37 Phil. 809). Stated differently, the rule would also mean that an
antecedent negligence of a person does not preclude the recovery
of damages for the supervening negligence of, or bar a defense
against liability sought by, another if the latter, who had the last
fair chance, could have avoided the impending harm by the
exercise of due diligence (Pantranco North Express, Inc. vs.
Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs.
Intermediate Appellate Court, 173 SCRA 464). In the case at
bench, the victim was traveling along the land where he was
rightly supposed to be. The incident occurred in an instant. No
appreciable time had elapsed, from the moment Tano swerved to
his left to the actual impact, that could have afforded the victim a
last clear opportunity to avoid the collision. It is true, however,
that the deceased was not all that free from negligence in
evidently speeding too closely behind the vehicle he was
following. We, therefore, agree with the appellate court that there
indeed was contributory negligence on the victim's part that
could warrant a mitigation of petitioners' liability for damages.
DECISION
VITUG, J p:
In this petition for review, the application of the doctrines of
"proximate cause" and "last clear chance" is, once again, being
put to test. The petition questions the decision of the Court of
Appeals dated 18 July 1991, which has reversed that of the trial
court. cdphil
The case arose from a vehicular collision which occurred at about
11:30 in the morning of 15 November 1987. Rogelio Monterola,

a licensed driver, was traveling on board his Suzuki motorcycle
towards Mangagoy on the right lane along a dusty national road
in Bislig, Surigao del Sur. At about the same time, a cargo van of
the LBC Air Cargo Incorporated, driven by defendant Jaime
Tano, Jr., was coming from the opposite direction on its way to
the Bislig Airport. On board were passengers Fernando Yu,
Manager of LBC Air Cargo, and his son who was seated beside
Tano. When Tano was approaching the vicinity of the airport
road entrance on his left, he saw two vehicles racing against each
other from the opposite direction. Tano stopped his vehicle and
waited for the two racing vehicles to pass by. The stirred cloud of
dust made visibility extremely bad. Instead of waiting for the
dust to settle, Tano started to make a sharp left turn towards the
airport road. When he was about to reach the center of the right
lane, the motorcycle driven by Monterola suddenly emerged from
the dust and smashed head-on against the right side of the LBC
van. Monterola died from the severe injuries he sustained. cdasia
A criminal case for "homicide thru reckless imprudence" was
filed against Tano. A civil suit was likewise instituted by the heirs
of deceased Monterola against Tano, along with Fernando Yu and
LBC Air Cargo Incorporated, for the recovery of damages. The
two cases were tried jointly by the Regional Trial Court, Branch
29, of Surigao del Sur. cdasia
On 29 July 1990, the trial court dismissed both cases on the
ground that the proximate cause of the "accident" was the
negligence of deceased Rogelio Monterola.
Private respondent appealed the dismissal of the civil case to the
Court of Appeals. On 18 July 1991, the appellate court reversed
the court a quo. It held:
"WHEREFORE, the judgment appealed from is REVERSED,
and another one is hereby rendered ordering the defendants Jaime
Tano and LBC Air Cargo, Inc. to jointly and severally pay the
plaintiff Patrocinia Monterola the following the following
amounts:
"TO SHERWIN MONTEROLA:
"1. Indemnity for the death
of Rogelio Monterola P50,000.00
"2. For Moral damages 20,000.00
"To PATROCINIA GRONDIANO Y MONTEROLA:
"3. Actual damages P7,361.00
"4. Hospitals & Burial Expenses 15,000.00
"5. Attorneys Fees and expenses
of Litigation 10,000.00
"Plus the costs.
Page 40 of 66
"Actual payment of the aforementioned amounts should,
however, be reduced by twenty (20%) per cent." 1
In the instant petition for review, petitioners contend that —
"1. The Court of Appeals erred in finding that Jaime Tano,
Jr. was negligent in the driving of his vehicle and in failing to
give a signal to approaching vehicles of his intention to make a
left turn.
"2. The Court of Appeals erred in not finding that the
proximate cause of the accident was the victim's negligence in
the driving of his motorcycle in a very fast speed and thus hitting
the petitioner's cargo van." 2
The issues raised are thus essentially factual. The intrinsic merit
of, as well as cogency in, the detailed analyses made by the Court
of Appeals in arriving at its findings is at once apparent. Said the
appellate court:
"That visibility was poor when Jaime Tano made a left turn was
admitted by the latter.
"Q When these two vehicles passed by your parked vehicle,
as you said, there were clouds of dust, did I get you right?
"A Yes sir, the road was dusty.
"Q So much so that you could no longer see the vehicles
from the opposite direction following these vehicles?cdasia
"A It is not clear, sir, so I even turned on my left signal and
the headlight.
"Q What do you mean by it was not clear, you could not see
the incoming vehicles?
"A I could not see because of the cloud of dust.
"Q And it was at this juncture, when you were to follow
your theory, when you started your LBC van again and swerved
to the left leading to the Bislig airport?
"A I did not enter immediately the airport, I waited the dust
to clear a little before I drove.
"xxx xxx xxx
"Q In other words when you said that it was slightly clear,
you would like to tell the Honorable Court that you could only
clearly see big vehicles . . . but not small vehicles like a
motorcycle?
"A I could see clearly big vehicles but not small vehicles
like a motorcycle.
"Q Like the motorcycle of Rogelio Monterola?
"A Yes, sir. I could not see clearly. (Tano, tsn, April 18,
1989, pp. 26-30) (p. 15, Appellant's brief).

"Tano should not have made a left turn under the conditions
admitted by him. Under the Land Transportation and Traffic
Code, the driver of any vehicle upon a highway, before starting,
stopping or turning from a direct line, is called upon to first see
that such movement can be made in safety, and whenever the
operation of any other vehicle approaching may be affected by
such movement, shall give a signal plainly visible to the driver of
such other vehicles of the intention to make such movement (Sec.
44, R.A. 4136, as amended). This means that before a driver
turns from a direct line, in this case to the left, the driver must
first see to it that there are no approaching vehicles and, if there
are, to make the turn only if it can give a signal that is plainly
visible to the driver of such other vehicle. Tano did neither in this
case, for he recklessly made a left turn even as visibility was still
very poor, and thus failed to see the approaching motorcycle and
warn the latter of his intention to make a left turn. This is plain
and simple negligence.
"In thus making the left turn, he placed his vehicle directly at the
path of the motorcycle which, unaware of Tano's intention to
make a left turn, smashed at Tano's vehicle. It was Tano's
negligence that created the risk or the condition of danger that set
into operation the event that led to the smashedup and untimely
death of Rogelio Monterola.
"Rogelio Monterola's motorcycle would not have hit the cargo
van had Tano, in operating it, not recklessly turned left when
visibility was still poor, and instead observed the directive of the
Land Transportation Code that before doing so, he should first
see to it that such movement can be made in safety, and that
whenever any other vehicle approaching may be affected by such
movement, should give a signal plainly visible to the driver of
such other vehicle of the intention to make such movement.
"That Rogelio Monterola was running fast despite poor visibility
as evidenced by the magnitude of the damage to the vehicles is
no defense. His negligence would at most be contributory
(Article 2179, N.C.C.). Having negligently created the condition
of danger, defendants may not avoid liability by pointing to the
negligence of the former. cdasia
"xxx xxx xxx
"Tano's proven negligence created a presumption of negligence
on the part of his employer, the LBC Air Cargo Corporation, in
supervising its employees properly and adequately (Phoenix
Construction, Inc. vs. Intermediate Appellate Court, supra),
which may only be destroyed by proof of due diligence in the
selection and supervision of his employees to prevent the damage
(Article 2180, N.C.C.). No such defense was interposed by
defendants in their answer.
"We, however, fail to see Fernando Yu's liability as Manager of
LBC-Mangagoy Branch Office, there being no employer-
employee relationship between him and Jaime Tano who is a
driver of the LBC Air Cargo Inc. It was held in Philippine Rabbit
Bus Lines Inc., et al. vs. Phil. American Forwarders, Inc., 63
Page 41 of 66
SCRA 231, that the term 'Manager' in Article 2180 is used in the
sense of 'employer.' Hence, no tortuous or quasi-delictual liability
can be fastened on Fernando Yu as branch manager of LBC Air
Cargo Inc.
"Now for the amount of damages. Aside from the indemnity for
death which People v. Sazon, 189 SCRA 700), the evidence
disclose that as a result of the accident, Rogelio Monterola's
motorcycle was damaged, the repair cost of which amounted to
P7,361.00 (Exh. E-1), for the hospitalization, wake and burial
expenses, plaintiff spent P15,000.00. There is likewise no
question that by reason of Rogelio Monterola's untimely death,
his only child 14 years old Sherwin Monterola, suffered mental
anguish, fright, serious anxiety, wounded feelings and moral
shock that entitles him to moral damages which we hereby fix at
P20,000.00. Because of defendants' refusal to indemnify the
plaintiff for his father's death, the latter was compelled to litigate
and engage the services of counsel. He is therefore entitled to an
additional amount of P10,000.00 for attorney's fees and expenses
of litigation. cdasia
"Considering, however, the contributory negligence of Rogelio
Monterola in driving at a fast clip despite the fact that the road
was dusty, we reduce the aggregate amount of damages to which
the plaintiff is entitled by twenty per cent (Phoenix Construction
Inc. v. Intermediate Appellate Court, supra.)." 3
For every indication, the proximate cause of the accident was the
negligence of Tano who, despite extremely poor visibility, hastily
executed a left turn (towards the Bislig airport road entrance)
without first waiting for the dust to settle. It was this negligent
act of Tano, which had placed his vehicle (LBC van) directly on
the path of the motorcycle coming from the opposite direction,
that almost instantaneously caused the collision to occur. Simple
prudence required him not to attempt to cross the other lane until
after it would have been safe from and clear of any oncoming
vehicle.
Petitioners poorly invoke the doctrine of "last clear chance" (also
referred to, at times, as "supervening negligence" or as
"discovered peril"). The doctrine, in essence, is to the effect that
where both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear
opportunity to avoid the impeding harm and failed to do so is
chargeable with the consequences thereof (see Picart vs. Smith,
37 Phil. 809). Stated differently, the rule would also mean that an
antecedent negligence of a person does not preclude the recovery
of damages for the supervening negligence of, or bar a defense
against liability sought by, another if the latter, who had the last
fair chance, could have avoided the impending harm by the
exercise of due diligence (Pantranco North Express, Inc. vs.
Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs.
Intermediate Appellate Court, 173 SCRA 464).cdasia

In the case at bench, the victim was traveling along the lane
where he was rightly supposed to be. The incident occurred in an
instant. No appreciable time had elapsed, from the moment Tano
swerved to his left to the actual impact, that could have afforded
the victim a last clear opportunity to avoid the collision. cdrep
It is true, however, that the deceased was not all that free from
negligence in evidently speeding too closely behind the vehicle
he was following. We, therefore, agree with the appellate court
that there indeed was contributory negligence on the victim's part
that could warrant a mitigation of petitioners' liability for
damages.
WHEREFORE, the appealed decision is AFFIRMED. Costs
against petitioners.
SO ORDERED.
Feliciano, Romero, Melo and Francisco, JJ ., concur.
14.EN BANC
[G.R. No.L-12986. March 31, 1966.]
THE SPOUSES BERNABE AFRICA and SOLEDAD C.
AFRICA and the HEIRS OF DOMINGA ONG, petitioners-
appellants, vs. CALTEX (PHIL.) INC., MATEO BOQUIREN
and THE COURT OF APPEALS, respondents-appellees.
Ross, Selph, Carrascoso & Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
SYLLABUS
1. EVIDENCE; ENTRIES IN OFFICIAL RECORDS;
REQUISITES FOR ADMISSIBILITY. — There are three
requisites for admissibility of evidence under Sec. 35, Rule 123,
Rules of Court: (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, p.
393).
2. ID.; HEARSAY RULE; REPORTS NOT
CONSIDERED EXCEPTION TO HEARSAY RULE. — The
reports in question do not constitute an exception to the hearsay
rule. The facts stated therein were not acquired by the reporting
officers through official information, not having been given by
the informants pursuant to any duty to do so.
Page 42 of 66
3. ID.; ID.; REPORT SUBMITTED BY A POLICE
OFFICER IN THE PERFORMANCE OF HIS DUTIES. — The
report submitted by a police officer in the performance of his
duties on the basis of his own personal observation of the facts
reported, may properly be considered as an exception to the
hearsay rule.
4. ID.; PRESUMPTION OF NEGLIGENCE UNDER
THE DOCTRINE OF Res Ipsa Loquitur. — Where the thing
which caused the injury complained of is shown to be under the
management defendant or his servants and the accident is such as
in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords
reasonable evidence, in absence of explanation by defendant, that
the accident arose from want of care. (45 C. J. 768, p. 1193.)
5. ID.; ID.; APPLICATION OF PRINCIPLE TO THE
CASE AT BAR. — 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.
6. TORTS; INTERVENTION OF UNFORESEEN AND
UNEXPECTED CAUSE. — The intervention of an unforeseen
and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly and
proximately cooperates with the independent cause in the
resulting injury. (MacAfee et al., vs. Travers Gas Corp., et al.,
153 S. W. 2nd 442.)
7. DAMAGES; LIABILITY OF OWNER OF GASOLINE
STATION; CASE AT BAR. — A fire broke out at the Caltex
service station. It is started while gasoline was being hosed from
a tank into the underground storage. The fire spread to and
burned several neighboring houses owned by appellants. Issue:
Whether Caltex should be held liable for the damages caused to
appellants. Held: The question depends on whether the operator
of the gasoline station was an independent contractor or an agent
of Caltex. Under the license agreement the operator would pay
Caltex the purely nominal sum of P1.00 for the use of the
premises and all equipment therein. The operator could sell only
Caltex products. Maintenance of the station and its equipment
was subject to the approval, in other words control, of Caltex.
The operator could not assign or transfer his rights as license
without the consent of Caltex. Termination of the contract was a
right granted only to Caltex but not to the operator. These
provisions of the contract show that the operator was virtually an
employee of Caltex, not an independent contractor. Hence,
Caltex should be liable for damages caused to appellants.
DECISION
MAKALINTAL, J p:

This case is before us on a petition for review of the decision of
the Court of Appeals, which affirmed that of the Court of First
Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the
old Civil Code. It appears that in the afternoon of March 18, 1948
a fire broke out at the Caltex service station at the corner of
Antipolo street and Rizal Avenue, Manila. It started while
gasoline was being hosed from a tank truck into the underground
storage, right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and burned
several neighboring houses, including the personal properties and
effects inside them. Their owners, among them petitioners here,
sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the
first as alleged owner of the station and the second as its agent in
charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners
failed to prove negligence and that respondents had exercised due
care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain
reports on the fire prepared by the Manila Police and Fire
Departments and by a certain Captain Tinio of the Armed Forces
of the Philippines. Portions of the first two reports are as follows:
1. Police Department Report: —
"Investigation disclosed that at about 4:00 P.M. March 18, 1948,
while Leandro Flores was transferring gasoline from a tank truck,
plate No. T-5292 into underground tank of the Caltex Gasoline
Station located at the corner of Rizal Avenue and Antipolo Street,
this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground
tank. Due to the gasoline fumes, fire suddenly blazed. Quick
action of Leandro Flores in pulling of the gasoline hose
connecting the truck with the underground tank prevented a
terrific explosion. However, the flames scattered due to the hose
from which the gasoline was spouting. It burned the truck and the
following accessories and residences."
2. The Fire Department Report: —
In connection with their allegation that the premises was (sic)
subleased for the installation of a coca-cola and cigarette stand,
the complainants furnished this Office a copy of a photograph
taken during the fire and which is submitted herewith. It appears
in this picture that there are in the premises a coca-cola cooler
and a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed
between the gasoline pumps and the underground tanks."
The report of Captain Tinio reproduced information given by a
certain Benito Morales regarding the history of the gasoline
Page 43 of 66
station and what the chief of the fire department had told him on
the same subject.
The foregoing reports were ruled out as "double hearsay" by the
Court of Appeals and hence inadmissible. This ruling is now
assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report
(Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the
hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript
of the hearing of September 17, 1953 (pp. 167-170) shows that
the reports in question, when offered as evidence, were objected
to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and
impertinent." Indeed, in the court's resolution only Exhibits J, K,
K-5 and X-6 were admitted without objection; the admission of
the others, including the disputed ones, carried no such
explanation.
On the second point, although Detective Capacillo did take the
witness stand, he was not examined and he did not testify as to
the facts mentioned in his alleged report (signed by Detective
Zapanta.) All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence." and that he brought the report
with him. There was nothing, therefore on which he need be
cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves, that
is, without further testimonial evidence on their contents, fall
within the scope of section 35, Rule 123 which provides that
"entries in official records made in the performance of his duty
by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated."
There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or by
another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined
by law; and (c) that the public officer or other person had
sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information.
(Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 383.)

Of the three requisites just stated, only the last need be
considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired
by them through official information? As to some facts the
sources thereof are not even identified. Others are attributed to
Leopoldo Medina, referred to as an employee at the gas station
where the fire occurred; to Leandro Flores, driver of the tank
truck from which gasoline was being transferred at the time to
the underground tank of the station; and to respondent Mateo
Boquiren, who could not, according to Exhibit V-Africa, give any
reason as to the origin of the fire. To qualify their statements as
"official information acquired by the officers who prepared the
reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to
give such statements for record. 1
The reports in question do not constitute an exception to the
hearsay rule: the facts stated therein were not acquired by the
reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause
and origin of the fire, the doctrine of res ipsa loquitur should
apply so as to presume negligence on the part of appellees. Both
the trial court and the appellate court refused to apply the
doctrine in the instant case on the grounds that "as to (its)
applicability . . . in the Philippines, there seems to 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." The question deserves more than
such summary dismissal. The doctrine has actually been applied
in this jurisdiction in the case of Espiritu vs. Philippine Power
and Development Co. (C.A. G. R. No. L-324O-R, September 20,
1949), wherein the decision of the Court of Appeals was penned
by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
"In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the municipalities
of Bay and Calauan, in the province of Laguna, with clear
weather and without any wind blowing, an electric transmission
wire, installed and maintained by the defendant Philippine Power
and Development Co., Inc. alongside the road, suddenly parted,
and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full
shock of 4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed through
his body and caused extensive and serious multiple burns from
skull to legs, leaving the bone exposed in some parts and causing
intense pain and wounds that were not completely healed when
the case was tried on June 18, 1947, over one year after the
mishap."
Page 44 of 66
The defendant therein disclaimed liability on the ground that the
plaintiff had failed to show any specific act of negligence but the
appellate court overruled the defense under the doctrine of res
ipsa loquitur. The court said:
"The first point is directed against the sufficiency of plaintiff's
evidence to place appellant on its defense. While it is the rule, as
contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principle
that 'Where the thing which caused injury, without fault of the
injured person, is under the exclusive control of the defendant
and the injury is such as in the ordinary course of things does not
occur if those having such control use proper care, it affords
reasonable evidence, in the absence of the explanation that the
injury arose from defendant's want of care.'
"And the burden of evidence is shifted to him to establish that he
has observed due care and diligence. (San Juan Light & Transit
Co. vs. Requena, 224 U.S. 89, 56 L. ed. 68 ). This rule is known
by the name of res ipsa loquitur (the transaction speaks for itself),
and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the
highway, and the electric wire was under the sole control of
defendant company. In the ordinary course of events, electric
wires do not part suddenly in fair weather and injure people,
unless they are subjected to unusual strain and stress or there are
defects in their installation, maintenance and supervision; just as
barrels do not ordinarily roll out of the warehouse windows to
injure passersby unless some one was negligent. (Byrne vs.
Boadle, 2 H & Co. 22; 159 Eng. Reprint 299, the leading case
that established that rule). Consequently, in the absence of
contributory negligence (which is admittedly not present) the fact
that the wire snapped suffices to raise a reasonable presumption
of negligence in the installation, care and maintenance.
Thereafter, as observed by Chief Baron Pollock, if there are any
facts inconsistent with negligence, it is for the defendant to
prove.'"
It is true of course that decisions of the Court of Appeals do not
lay down doctrines binding on the Supreme Court, but we do not
consider this a reason for not applying the particular doctrine of
res ipsa loquitur in the case at bar. Gasoline is a high]y
combustible material, in the storage and sale of which extreme
care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of
man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447;
"Arthur O. Jones is the owner of a building in the city of
Hammon which in the year 1934 was leased to the Shell
Petroleum Corporation for a gasoline filling station. On October
8, 1934, during the term of the lease, while gasoline was being
transferred, from the tank wagon, also operated by the Shell
Petroleum Corporation, to the underground tank of the station, a
fire started with resulting damages to the building owned by

Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for $427.82. The
Court of Appeals for the First Circuit reversed this judgment, on
the ground the testimony failed to show with reasonable certainty
any negligence on the part of the Shell Petroleum Corporation or
any of its agents or employees. Plaintiff applied to this Court for
a Writ of Review which was granted, and the case is now before
us for decision."
In resolving the issue of negligence, the Supreme Court of
Louisiana held:
"Plaintiff's petition contains two distinct charges of negligence —
one relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.
"Other than an expert to asses the damages caused plaintiff's
building by the fire, no witnesses were placed on the stand by the
defendant.
"Taking up plaintiff's charge of negligence relating to the cause
of the fire, we find it established by the record that the filling
station and the tank truck were under the control of the defendant
and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started
in the underground tank attached to the filling station while it was
being filled from the tank truck and while both the tank and the
truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck,
and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance
of defendants failure to explain the cause of the fire or to show its
lack of knowledge of the cause, plaintiff has evoked the doctrine
of res ipsa loquitur. There are many cases in which the doctrine
may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown
to be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not
happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C. J.
#768, p. 1193).
"This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied
are the following, viz.; Maus vs. Broderick, 51 La. Ann. 1153, 25
So. 977; Hebert vs. Lake Charles Ice etc., Co., 111 La. 522, 35
So.731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis vs.
Vicksburg, etc., R. Co., 115 La. 53, 38 So.892; Bents, vs. Page,
115 La. 560, 39 So. 599."
Page 45 of 66
The principle enunciated in the aforequoted case applies with
equal force here. The gasoline station, with all its appliances,
equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire
started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the
Manila Police Department (Exh. X-1 Africa) the following
appears:
"Investigation of the basic complaint disclosed that the Caltex
Gasoline Station complained of occupies a lot approximately 10
m x 10 m at the southwest corner of Rizal Avenue and Antipolo.
The location is within a very busy business district near the
Obrero Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around
throughout the day until late at night. The circumstances put the
gasoline station in a situation primarily prejudicial to its
operation because the passersby, those waiting for buses or
transportation, those waiting to cross the streets and others
loafing around have to occupy not only the sidewalks but also
portion of the gasoline station itself. Whatever be the activities of
these people smoking or lighting a cigarette cannot be excluded
and this constitute a secondary hazard to its operation which in
turn endangers the entire neighborhood to conflagration.
"Furthermore, aside from precautions already taken by its
operator the concrete walls south and west adjoining the
neighborhood are only 2 1/2 meters high at most and cannot
avoid the flames from leaping over it in case of fire.
"Records show that there have been two cases of fire which
caused not only material damages but desperation and also panic
in the neighborhood.
"Although the soft drinks stand had been eliminated, this
gasoline service station is also used by its operator as a garage
and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this already
small but crowded gasoline station."
The foregoing report, having been submitted by a police officer
in the performance of his duties on the basis of his own personal
observation of the facts reported, may properly be considered as
an exception to the hearsay rule. Those facts, descriptive of the
location and objective circumstances surrounding the operation
of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their
face they called for more stringent measures of caution than those
which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this
than the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank wagon
who, alone and without assistance, was transferring the contents

thereof into the underground storage when the fire broke out. He
said: "Before loading the underground tank there were no people,
but while the loading was going on, there were people who went
to drink coca-cola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He added that
when the tank was almost filled he went to the tank truck to close
the valve, and while he had his back turned to the "manhole" he
heard someone shout "fire."
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission on
the part of defendants, namely, their failure to provide a concrete
wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2 1/2 meters high, and beyond
that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense
heat. Defendants' negligence, therefore, was not only with respect
to the cause of the fire but also with respect to the spread thereof
to the neighboring houses.
There is an admission on the part of Boquiren in his amended
answer to the second amended complaint that "the fire was
caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline
station and negligently threw a lighted match in the premises."
No evidence on this point was adduced, but assuming the
allegation to be true — certainly any unfavorable inference from
the admission may be taken against Boquiren — it does not
extenuate his negligence. A decision of the Supreme Court of
Texas, upon facts analogous to those of the present case, states
the rule which we find acceptable here: "It is the rule that those
who distribute a dangerous article or agent owe a degree of
protection to the public proportionate to and commensurate with
a danger involved . . . we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct
actively and continuously operate to bring about harm to another,
the fact that the active and substantially simultaneous operation
of the effects of a third person's innocent, tortious or criminal act
is also a substantial factor in bringing about the harm, does not
protect the actor from liability.' (Restatement of the Law of Torts,
vol. 2, p. 1184, #439. Stated in another way, 'The intervention of
an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause
in the resulting injury.' (MacAfee et al. vs. Traver's Gas Corp., et
al., 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the
facts not controverted, is one of law and hence may be passed
upon by this Court. These facts are: 1) Boquiren made an
admission that he was an agent of Caltex; (2) at the time of the
fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the
Page 46 of 66
management of the station; (4) the delivery truck used in
delivering gasoline to the station had the name CALTEX painted
on it; and (5) the license to store gasoline at the station was in the
name of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit
Y-Africa).
In Boquiren's amended answer to the second amended complaint,
he denied that he directed one of his drivers to remove gasoline
from the truck into the tank and alleged that the "alleged driver, if
one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the
gasoline station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion
to dismiss appellants' second amended complaint the ground
alleged was that it stated no cause of action since under the
allegations thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A motion to
dismiss on this ground is deemed to be an admission of the facts
alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the
equipment therein, but claims that the business conducted at the
service station in question was owned and operated by Boquiren.
But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There
must have been one in existence at that time. Instead, what was
presented was a license agreement manifestly tailored for
purposes of this case, since it was entered into shortly before the
expiration of the one- year period it was intended to operate. This
so-called license agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1, 1948 so
as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the
conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that
Caltex "shall not be liable for any injury to person or property
while in the property herein licensed, it being understood and
agreed that LICENSEE (Boquiren) is not an employee,
representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can
hardly be considered an independent contractor. Under that
agreement Boquiren would pay Caltex the purely nominal sum of
P1.00 for the use of the premises and all the equipment therein.
He could sell only Caltex products. Maintenance of the station
and its equipment was subject to the approval, in other words
control, of Caltex. Boquiren could not assign or transfer his rights
as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948,
and thereafter until terminated by Caltex upon two days prior
written notice. Caltex could at any time cancel and terminate the
agreement in case Boquiren ceased to sell Caltex products, or did
not conduct the business with due diligence, in the judgment of
Caltex. Termination of the contract was therefore a right granted

only to Caltex but not to Boquiren. These provisions of the
contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of
the former.
"Taking into consideration the fact that the operator owed his
position to the company and the latter could remove him or
terminate his services at will; that the service station belonged to
the company and bore its tradename and the operator sold only
the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold by
the operator was fixed by the company and not by the operator;
and that the receipts signed by the operator indicated that he was
a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent
contractor should not be disturbed.
"To determine the nature of a contract courts do not have or are
not bound to rely upon the name or title given it by the
contracting parties, should there be a controversy as to what they
really had intended to enter into, but the way the contracting
parties do or perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and should such
performance conflict with the name or title given the contract by
the parties, the former must prevail over the latter." Shell
Company of the Philippines, Ltd. vs. Firemen's Insurance
Company of Newark, New Jersey, 100 Phil. 757).
"The written contract was apparently drawn for the purpose of
creating the apparent relationship of employer and independent
contractor, and of avoiding liability for the negligence of the
employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct the
method by which the work contracted for should be performed.
By reserving the right to terminate the contract at will, it retained
the means of compelling submission to its orders. Having elected
to assume control and to direct the means and methods by which
the work has to be performed, it must be held liable for the
negligence of those performing service under its direction. We
think the evidence was sufficient to sustain the verdict of the
jury." (Gulf Refining Company vs. Rogers 57 S.W. 2d 183).
Caltex further argues that the gasoline stored in the station
belonged to Boquiren. But no cash invoices were presented to
show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of
P9,005.80, after deducting the amount of P2,000.00 collected by
them on the insurance of the house. The deduction is now
challenged as erroneous on the ground that Article 2207 of the
new Civil Code, which provides for the subrogation of the
Page 47 of 66
insurer to the rights of the insured, was not yet in effect when the
loss took place. However, regardless of the silence of the law on
this point at that time, the amount that should be recovered must
be measured by the damages actually suffered, otherwise the
principle prohibiting unjust enrichment would be violated. With
respect to the claim of the heirs of Ong, P7,500.00 was adjudged
by the lower court on the basis of the assessed value of the
property destroyed namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was
worth P4,000.00. We agree that the court erred, since it is of
common knowledge that the assessment for taxation purposes is
not an accurate gauge of fair market value, and in this case
should not prevail over positive evidence of such value. The heirs
of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents- appellees are held liable solidarily to appellants, and
ordered to pay them the aforesaid sums of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the
complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L.,
Barrera, Regala, Bengzon, J.P. and Zaldivar, JJ., concur.
Dizon, J., took no part.
Footnotes
1. Thus, for instance, the record of a justice of the peace of
marriage certificates transmitted to him by the corresponding
priest is admissible. The justice of the peace has no personal
knowledge of the marriage, but it was reported to him by a priest
whose duty it was, under the law, to make the report for record
purposes. Similarly, the tax records of provincial assessor are
admissible even if the assessments were made by subordinates.
So also, are entries of marriages made by a municipal treasurer in
his official record, because he acquires knowledge thereof by
virtue of a statutory duty on the part of those authorized to
solemnize marriages to send a copy of each marriage contract
solemnized them to the local civil registrar. (See Moran,
Comments on the Rules of Court, Vol. 3 [1957] pp. 389- 395.)
15. THIRD DIVISION
[G.R. No. 52732. August 29, 1988.]
F.F. CRUZ and CO., INC., petitioner, vs. THE COURT OF
APPEALS, GREGORIO MABLE as substituted by his wife
LUZ ALMONTE MABLE and children DOMING,
LEONIDAS, LIGAYA, ELENA, GREGORIO, JR.,
SALOME, ANTONIO, and BERNARDO all surnamed
MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.
SYLLABUS

1. CIVIL LAW; DAMAGES; DOCTRINE OF RES IPSA
LOQUITOR, APPLIED; NEGLIGENCE NOT PRESUMED. —
The facts of the case call for the application of the doctrine,
considering that in the normal course of operations of a furniture
manufacturing shop, combustible material such as wood chips,
sawdust, paint, varnish and fuel and lubricants for machinery
may be found thereon. It must also be noted that negligence or
want of care on the part of petitioner or its employees was not
merely presumed. Even without applying the doctrine of res ipsa
loquitur, petitioner's failure to construct a firewall in accordance
with city ordinances would suffice to support a finding of
negligence.
2. REMEDIAL LAW; EVIDENCE; FACTUAL
FINDINGS OF THE COURT OF APPEALS GENERALLY
NOT DISTURBED. — Since the amount of the loss sustained by
private respondents constitutes a finding of fact, such finding by
the Court of Appeals should not be disturbed by this Court more
so when there is no showing of arbitrariness.
3. CIVIL LAW; DAMAGES; DEFICIENCY BETWEEN
AMOUNT INDEMNIFIED BY INSURER AND THE
AMOUNT OF LOSS SUSTAINED MAY BE RECOVERED
FROM PERSON CAUSING THE LOSS. — Private respondents
have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents.
Hence, the Court holds that in accordance with Article 2207 of
the Civil Code the amount of P35,000.00 should be deducted
from the amount awarded as damages. Having been indemnified
by their insurer, private respondents are only entitled to recover
the deficiency from petitioner.
4. ID.; SUBROGATION; INSURER ENTITLED
THERETO UNDER ART. 2207. — The insurer, if it is so
minded, may seek reimbursement of the amount it indemnified
private respondents from petitioner. This is the essence of its
right to be subrogated to the rights of the insured, as expressly
provided in Article 2207. Upon payment of the loss incurred by
the insured, the insurer is entitled to be subrogated pro tanto to
any right of action which the insured may have against the third
person whose negligence or wrongful act caused the loss
[Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-
27427, April 7, 1976, 70 SCRA 323.]
5. ID.; ID.; EXERCISE OF RIGHT, DISCRETIONARY;
INSURER, REAL PARTY IN INTEREST WITH REGARD TO
INDEMNITY AWARDED TO THE INSURED. — Under Article
2207, the real party in interest with regard to the indemnity
received by the insured is the insurer [Phil. Air Lines, Inc. v.
Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the
insurer should exercise the rights of the insured to which it had
been subrogated lies solely within the former's sound discretion.
Since the insurer is not a party to the case, its identity is not of
record and no claim is made on its behalf, the private
respondent's insurer has to claim his right to reimbursement of
the P35,000.00 paid to the insured.
Page 48 of 66
DECISION
CORTES, J p:
This petition to review the decision of the Court of Appeals puts
in issue the application of the common law doctrine of res ipsa
loquitur. prcd
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City
was situated adjacent to the residence of private respondents.
Sometime in August 1971, private respondent Gregorio Mable
first approached Eric Cruz, petitioner's plant manager, to request
that a firewall be constructed between the shop and private
respondents' residence. The request was repeated several times
but they fell on deaf ears. In the early morning of September 6,
1974, fire broke out in petitioner's shop. Petitioner's employees,
who slept in the shop premises, tried to put out the fire, but their
efforts proved futile. The fire spread to private respondents'
house. Both the shop and the house were razed to the ground.
The cause of the conflagration was never discovered. The
National Bureau of Investigation found specimens from the
burned structures negative for the presence of inflammable
substances.
Subsequently, private respondents collected P35,000.00 on the
insurance on their house and the contents thereof.
On January 23, 1975, private respondents filed an action for
damages against petitioner, praying for a judgment in their favor
awarding P150,000.00 as actual damages, P50,000.00 as moral
damages, P25,000.00 as exemplary damages, P20,000.00 as
attorney's fees and costs. The Court of First Instance held for
private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of
plaintiffs, and against the defendant:
1. Ordering the defendant to pay to the plaintiffs the
amount of P80,000.00 for damages suffered by said plaintiffs for
the loss of their house, with interest of 6% from the date of the
filing of the Complaint on January 23, 1975, until fully paid;
2. Ordering the defendant to pay to the plaintiffs the sum
of P50,000.00 for the loss of plaintiffs' furnitures, religious
images, silverwares, chinawares, jewelries, books, kitchen
utensils, clothing and other valuables, with interest of 6% from
date of the filing of the Complaint on January 23, 1975, until
fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum
of P5,000.00 as moral damages, P2,000.00 as exemplary
damages, and P5,000.00 as and by way of attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit.
[CA Decision, pp. 1-2; Rollo, pp. 29-30.]

On appeal, the Court of Appeals, in a decision promulgated on
November 19, 1979, affirmed the decision of the trial court but
reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is
affirmed. The damages to be awarded to plaintiff should be
reduced to P70,000.00 for the house and P50,000.00 for the
furniture and other fixtures with legal interest from the date of
the filing of the complaint until full payment thereof [CA
Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but
was denied in a resolution dated February 18, 1980. Hence,
petitioner filed the instant petition for review on February 22,
1980.
After the comment and reply were filed, the Court resolved to
deny the petition for lack of merit on June 11, 1980. However,
petitioner filed a motion for reconsideration, which was granted,
and the petition was given due course on September 12, 1980.
After the parties filed their memoranda, the case was submitted
for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private
respondents recovered on the insurance on their house, from the
award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts
of the instant case.
The pivotal issue in this case is the applicability of the common
law doctrine of res ipsa loquitur, the issue of damages being
merely consequential. In view thereof, the errors assigned by
petitioner shall be discussed in the reverse order. prcd
1. The doctrine of res ipsa loquitur, whose application to
the instant case petitioner objects to, may be stated as follows:
Where the thing which caused the injury complained of is shown
to be under the management of the defendant or his servants and
the accident is such as in the ordinary course of things does not
happen if those who have its management or control use proper
care, it affords reasonable evidence, in the absence of explanation
by the defendant, that the accident arose from want of care.
[Africa v. Caltex (Phil.), Inc., G.R. No.L-12986, March 31, 1966,
16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service
station while gasoline from a tank truck was being unloaded into
an underground storage tank through a hose and the fire spread to
and burned neighboring houses, this Court, applying the doctrine
of res ipsa loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of the
doctrine, considering that in the normal course of operations of a
Page 49 of 66
furniture manufacturing shop, combustible material such as wood
chips, sawdust, paint, varnish and fuel and lubricants for
machinery may be found thereon.
It must also be noted that negligence or want of care on the part
of petitioner or its employees was not merely presumed. The
Court of Appeals found that petitioner failed to construct a
firewall between its shop and the residence of private
respondents as required by a city ordinance; that the fire could
have been caused by a heated motor or a lit cigarette; that
gasoline and alcohol were used and stored in the shop; and that
workers sometimes smoked inside the shop [CA Decision, p. 5;
Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance with city
ordinances would suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission on
the part of defendants, namely, their failure to provide a concrete
wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond
that height it consisted merely of galvanized iron sheets, which
would predictably crumble and melt when subjected to intense
heat. Defendant's negligence, therefore, was not only with respect
to the cause of the fire but also with respect to the spread thereof
to the neighboring houses. [Africa Y. Caltex (Phil.) Inc., supra;
Emphasis supplied.]
In the instant case, with more reason should petitioner be found
guilty of negligence since it had failed to construct a firewall
between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The
failure to comply with an ordinance providing for safety
regulations had been ruled by the Court as an act of negligence
[Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA
181.]
The Court of Appeals, therefore, had more than adequate basis to
find petitioner liable for the loss sustained by private
respondents. cdll
2. Since the amount of the loss sustained by private
respondents constitutes a finding of fact, such finding by the
Court of Appeals should not be disturbed by this Court [M.D.
Transit & Taxi Co., Inc. v. Court of Appeals, G.R. No. L-23882,
February 17, 1968, 22 SCRA 559], more so when there is no
showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals, were
in agreement as to the value of private respondents' furniture and
fixtures and personal effects lost in the fire (i.e. P50,000.00).
With regard to the house, the Court of Appeals reduced the award
to P70,000.00 from P80,000.00. Such cannot be categorized as
arbitrary considering that the evidence shows that the house was
built in 1951 for P40,000.00 and, according to private

respondents, its reconstruction would cost P246,000.00.
Considering the appreciation in value of real estate and the
diminution of the real value of the peso, the valuation of the
house at P70,000.00 at time it was razed cannot be said to be
excessive.
3. While this Court finds that petitioner is liable for
damages to private respondents as found by the Court of Appeals,
the fact that private respondents have been indemnified by their
insurer in the amount of P35,000.00 for the damage caused to
their house and its contents has not escaped the attention of the
Court. Hence, the Court holds that in accordance with Article
2207 of the Civil Code the amount of P35,000.00 should be
deducted from the amount awarded as damages. Said article
provides:
Art. 2207. If the plaintiff's property has been insured, and
he has received indemnity from the insurance company for the
injury or loss arising out of the wrong or breach of contract
complained of, the insurance company is subrogated to the rights
of the insured against the wrongdoer or the person who violated
the contract. If the amount paid by the insurance company does
not fully cover the injury or loss, the aggrieved party shall be
entitled to recover the deficiency from the person causing the loss
or injury. (Emphasis supplied.)
The law is clear and needs no interpretation. Having been
indemnified by their insurer, private respondents are only entitled
to recover the deficiency from petitioner. LLphil
On the other hand, the insurer, if it is so minded, may seek
reimbursement of the amount it indemnified private respondents
from petitioner. This is the essence of its right to be subrogated to
the rights of the insured, as expressly provided in Article 2207.
Upon payment of the loss incurred by the insured, the insurer is
entitled to be subrogated pro tanto to any right of action which
the insured may have against the third person whose negligence
or wrongful act caused the loss [Fireman's Fund Insurance Co. v.
Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA
323.]
Under Article 2207, the real party in interest with regard to the
indemnity received by the insured is the insurer [Phil. Air Lines,
Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or
not the insurer should exercise the rights of the insured to which
it had been subrogated lies solely within the former's sound
discretion. Since the insurer is not a party to the case, its identity
is not of record and no claim is made on its behalf, the private
respondent's insurer has to claim his right to reimbursement of
the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the
Court of Appeals is hereby AFFIRMED with the following
modifications as to the damages awarded for the loss of private
respondents' house, considering their receipt of P35,000.00 from
their insurer: (1) the damages awarded for the loss of the house is
reduced to P35,000.00; and (2) the right of the insurer to
Page 50 of 66
subrogation and thus seek reimbursement from petitioner for the
P35,000.00 it had paid private respondents is recognized.
SO ORDERED.prLL
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
16.THIRD DIVISION
[G.R. No. 118231. July 5, 1996.]
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN,
petitioners, vs. COURT OF APPEALS, SPOUSES QUEDO
D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
Paras & Associates for petitioners.
Frederick E. Bustamante for private respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; AS A
GENERAL RULE, ONLY QUESTIONS OF LAW MAY BE
RAISED IN A PETITION FOR REVIEW ON CERTIORARI;
EXCEPTIONS. — While the rule is that only questions of law
may be raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings of the
trial court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts.
2. ID.; EVIDENCE; CREDIBILITY OF WITNESSES;
EVEN WHEN A WITNESS IS FOUND TO HAVE
DELIBERATELY FALSIFIED IN SOME MATERIAL
PARTICULARS, IT IS NOT REQUIRED THAT THE WHOLE
OF HIS UNCORROBORATED TESTIMONY BE REJECTED,
BUT SUCH PORTIONS THEREOF DEEMED WORTHY OF
BELIEF BE CREDITED. — The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber
in private respondent Villegas' abdomen, and that she sent it to a
laboratory and then to Cebu City for examination by a
pathologist. Not even the Pathologist's Report, although devoid
of any mention of a piece of rubber, could alter what Dr. Kho
saw. Furthermore, Dr. Kho's knowledge of the piece of rubber
could not be based on other than first hand knowledge for, as she
asserted before the trial court. The petitioners emphasize that the
private respondents never reconciled Dr. Kho's testimony with
Dr. Batiquin's claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said that
there was a piece of rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not objected to, and hence, the
same is admissible but it carries no probative value.
Nevertheless, assuming otherwise, Dr. Batiquin's statement
cannot belie the fact that Dr. Kho found a piece of rubber near
private respondent Villegas's uterus. And even if we were to
doubt Dr. Kho as to what she did to the piece of rubber, i.e.,
whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber

from private respondent Villegas' abdomen. On this score, it is
perfectly reasonable to believe the testimony of a witness with
respect to some facts and disbelieve his testimony with respect to
other facts. And it has been aptly said that even when a witness is
found to have deliberately falsified in some material particulars,
it is not required that the whole of his uncorroborated testimony
be rejected, but such portions thereof deemed worthy of belief
may be credited.
3. ID.; ID.; ID.; POSITIVE TESTIMONY IS STRONGER
THAN NEGATIVE TESTIMONY. — It is here worth nothing
that the trial court paid heed to the following portions of Dr.
Batiquin's testimony: that no rubber drain was used in the
operation, and that there was neither any tear on Dr. Batiquin's
gloves after the operation nor blood smears on her hands upon
removing her gloves. Moreover, the trial court pointed out that
the absence of a rubber drain was corroborated by Dr. Doris Sy,
Dr. Batiquin's assistant during the operation on private
respondent Villegas. But the trial court failed to recognize that
the assertions of Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony. Of course, as the petitioners
advocate, such positive testimony must come from a credible
source, which leads us to the second assigned error. While the
petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a reading of the said testimony reveals no such
infirmity and establishes Dr. Kho as a credible witness. Dr. Kho
was frank throughout her turn on the witness stand. Furthermore,
no motive to state any untruth was ever imputed against Dr. Kho,
leaving her trustworthiness unimpaired. The trial court's
following declaration shows that while it was critical of the lack
of care with which Dr. Kho handled the piece of rubber, it was
not prepared to doubt Dr. Kho's credibility, thus only supporting
out appraisal of Dr. Kho's trustworthiness. Considering that we
have assessed Dr. Kho to be a credible witness, her positive
testimony [that a piece of rubber was indeed found in private
respondent Villegas' abdomen] prevails over the negative
testimony in favor of the petitioners.
4. ID.; ID.; ID.; DOCTRINE OF RES IPSA LOQUITUR;
APPLICABLE IN CASE AT BAR. — In the instant case, all the
requisites for recourse to the doctrine of res ipsa loquitur are
present. First, the entire proceedings of the cesarean section were
under the exclusive control of Dr. Batiquin. In this light, the
private respondents were bereft of direct evidence as to the actual
culprit or the exact cause of the foreign object finding its way
into private respondent Villegas's body, which, needless to say,
does not occur unless through the intervention of negligence.
Second, since aside from the cesarean section, private respondent
Villegas underwent no other operation which could have caused
the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the
cesarean section performed by Dr. Batiquin. The petitioners, in
this regard, failed to overcome the presumption of negligence
arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a piece
Page 51 of 66
of rubber in private respondent Villegas' abdomen and for all the
adverse effects thereof.
DECISION
DAVIDE, JR., J p:
Throughout history, patients have consigned their fates and lives
to the skill of their doctors. For a breach of this trust, men have
been quick to demand retribution. Some 4,000 years ago, the
Code of Hammurabi 1 then already provided: "If a physician
make a deep incision upon a man with his bronze lancet and
cause the man's death, or operate on the eye socket of a man with
his bronze lancet and destroy the man's eyes, they shall cut off
his hand." 2 Subsequently, Hippocrates 3 wrote what was to
become part of the healer's oath: "I will follow that method of
treatment which according to my ability and judgment, I consider
for the benefit of my patents, and abstain from whatever is
deleterious and mischievous . . . While I continue to keep this
oath unviolated may it be granted me to enjoy life and practice
the art, respected by all men at all times but should I trespass and
violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession is the preservation of
life and maintenance of the health of the people. 4
Needless to say then, when a physician strays from his sacred
duty and endangers instead the life of his patient, he must be
made to answer therefor. Although society today cannot and will
not tolerate the punishment meted out by the ancients, neither
will it and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision 5 of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision 6 of 21 December 1990 of Branch 30 of the
Regional Trial Court (RTC) of Negros Oriental in Civil Case No.
9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental
Provincial Hospital, Dumaguete City from January 9, 1978 to
September 1989. Between 1987 and September, 1989 she was
also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin
for prenatal care as the latter's private patient sometime before
September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin with the
assistance of Dr. Doris Teresita Sy who was also a Resident
Physician at the same Hospital, C.I. and O.R. Nurse Arlene
Diones and some student nurses performed a simple cesarean
section on Mrs. Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas delivered her first
Child, Rachel Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until September 27,

1988 during which period of confinement she was regularly
visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas
checked out of the Hospital . . . and on the same day she paid Dr.
Batiquin, thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer
abdominal pains and complained of being feverish. She also
gradually lost her appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain medicines . . .
which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate
by Dr. Batiquin on October 31, 1988 . . . certifying to her
physical fitness to return to her work on November 7, 1988. So
on the second week of November, 1988 Mrs. Villegas returned to
her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered
Mrs. Villegas no end and despite the medications administered by
Dr. Batiquin. When the pains become unbearable and she was
rapidly losing weight she consulted Dr. Ma. Salud Kho at the
Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho
examined Mrs. Villegas at the Holy Child's Hospital on January
20, 1989 she found Mrs. Villegas to be feverish, pale and was
breathing fast. Upon examination she felt an abdominal mass one
finger below the umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas ' chest,
abdomen and kidney. She also took blood tests of Plaintiff. A
blood count showed that Mrs. Villegas had [an] infection inside
her abdominal cavity. The results of all those examinations
impelled Dr. Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found
whitish-yellow discharge inside, an ovarian cyst on each of the
left and right ovaries which gave out pus, dirt and pus behind the
uterus, and a piece of rubber materials on the right side of the
uterus embedded on [sic] the ovarian cyst. 2 inches by 3/4 inch in
size. This piece of rubber material which Dr. Kho described as a
"foreign body" looked like a piece of a "rubber glove" . . . and
which is [sic] also "rubber-drain like . . . It could have been a torn
section of a surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the infection of
the ovaries and consequently of all the discomfort suffered by
Mrs. Villegas after her delivery on September 21, 1988. 7
The piece of rubber allegedly found near private respondent
Flotilde Villegas's uterus was not presented in court, and although
Dr. Ma. Salud Kho testified that she sent it to a pathologist in
Cebu City for examination, 8 it was not mentioned in the
pathologist's Surgical Pathology Report. 9
Page 52 of 66
Aside from Dr. Kho's testimony, the evidence which mentioned
the piece of rubber are a Medical Certificate, 10 a Progress
Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a
Physician's Discharge Summary. 14 The trial court, however,
regarded these documentary evidence as mere hearsay, "there
being no showing that the person or persons who prepared them
are deceased or unable to testify on the facts therein stated . . .
Except for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other than Dr.
Kho, and she merely affixed her signature on some of them to
express her agreement thereto . . . " 15 The trial court also
refused to give weight to Dr. Kho's testimony regarding the
subject piece of rubber as Dr. Kho "may not have had first-hand
knowledge" thereof, 16 as could be gleaned from her statement,
thus:
A . . . I have heard somebody that [sic] say [sic] there is
[sic] a foreign body that goes with the tissues but unluckily I
don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that
when she confronted Dr. Kho regarding the piece of rubber, "Dr.
Kho answered that there was rubber indeed but that she threw it
away. " 18 This statement, the trial court noted, was never denied
nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that
offending "rubber" — (1) that it was sent to the Pathologist in
Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to Defendant. The failure of the
Plaintiffs to reconcile these two different versions serve only to
weaken their claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private respondents'
documentary evidence, deemed Dr. Kho's positive testimony to
definitely establish that a piece of rubber was found near private
respondent Villegas's uterus. Thus, the Court of Appeals reversed
the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is
established by preponderance of evidence. The trial court itself
had narrated what happened to appellant Flotilde after the
caesarean operation made by appellee doctor . . . After the second
operation, appellant Flotilde became well and healthy. Appellant
Flotilde's troubles were caused by the infection due to the
"rubber" that was left inside her abdomen. Both appellants
testified that after the operation made by appellee doctor, they did
not go to any other doctor until they finally decided to see
another doctor in January, 1989 when she was not getting any
better under the care of appellee Dr. Batiquin . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided
when to close the operating area; that she examined the portion
she operated on before closing the same . . . Had she exercised

due diligence, appellee Dr. Batiquin would have found the rubber
and removed it before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00
[deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical
expenses together with doctor's fees in the total amount
P9,900.00 (Exhs. G and G-2)] for the second operation that saved
her life.
For the miseries appellants endured for more than three (3)
months, due to the negligence of appellee Dr. Batiquin, they are
entitled to moral damages in the amount of P100,000.00;
exemplary damages in the amount of P20,000.00 and attorney's
fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children
because her uterus and ovaries were removed by Dr. Kho is not
taken into consideration as it is not shown that the removal of
said organs were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is that the rubber
left by appellee cause infection, placed the life of appellant
Flotilde in jeopardy and caused appellants fear, worry and
anxiety . . .
WHEREFORE, the appealed judgment, dismissing the complaint
for damages is REVERSED and SET ASIDE. Another judgment
is hereby entered ordering defendants-appellees to pay plaintiffs-
appellants the amount of P17,000.00 as and for actual damages;
P100,000.00 as and for moral damages; P20,000.00 as and for
exemplary damages; and P25,000.00 as and for attorney's fees
plus the cost of litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to this Court
claiming that the appellate court; (1) committed grave abuse of
discretion by resorting to findings of fact not supported by the
evidence on record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a
petition for review on certiorari, there are exceptions, among
which are when the factual findings of the trial court and the
appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate
court misapprehended the facts. 22
After deciphering the cryptic petition, we find that the focal point
of the instant appeal is the appreciation of Dr. Kho's testimony.
The petitioner contend that the Court of Appeals misappreciated
the following portion of Dr. Kho's testimony:
Page 53 of 66
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind,
just in case this would turn out to be a medico-legal case, I have
heard somebody that [sic] says [sic] there is [sic] a foreign body
that goes with the tissues but unluckily I don't know where the
rubber was. It was not in the Lab, it was not in Cebu. 23
(emphasis supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber
was based on hearsay. The Court of Appeals, on the other hand,
concluded that the underscored phrase was taken out of context
by the trial court. According to the Court of Appeals, the trial
court should have likewise considered the other portions of Dr.
Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow
discharge inside the abdomen, there was an ovarian cyst on the
left and side and there was also an ovarian cyst on the right
which, on opening up or freeing it up from the uterus, turned out
to be pus. Both ovaries turned out . . . to have pus. And the,
cleaning up the uterus, at the back of the uterus it was very dirty,
it was full of pus. And there was a [piece of] rubber we found a
[piece of] rubber on the right side. 24
We agree with the Court of Appeals. The phrase relied upon by
the trial court does not negate the fact that Dr. Kho saw a piece of
rubber in private respondent Villegas's abdomen, and that she
sent it to a laboratory and then to Cebu City for examination by a
pathologist. 25 Not even the Pathologist's Report, although
devoid of any mention of a piece of rubber, could alter what Dr.
Kho saw. Furthermore, Dr. Kho's knowledge of the piece of
rubber could not be based on other than first hand knowledge for,
as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents never
reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the
witness stand that when Dr. Batiquin confronted Dr. Kho about
the foreign body, the latter said that there was a piece of rubber
but that she threw it away. Although hearsay, Dr. Batiquin's claim
was not objected to, and hence, the same is admissible 27 but it
carries no probative value. 28 Nevertheless, assuming otherwise,
Dr. Batiquin's statement cannot belie the fact that Dr. Kho found
a piece of rubber near private respondent Villegas uterus. And
even if we were to doubt Dr. Kho as to what she did to the piece
of rubber, i.e., whether she threw it away or sent it to Cebu City,
we are not justified in distrusting her as to her recovery of a piece

of rubber from private respondent Villegas's abdomen. On this
score, it is perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve his testimony
with respect to other facts. And it has been aptly said that even
when a witness it found to have deliberately falsified in some
material particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions thereof
deemed worthy of belief may be credited. 29
It is here worth nothing that the trial court paid heed to the
following portions of Dr. Batiquin's testimony: that no rubber
drain was used in the operation, 30 and that there was neither any
tear on Dr. Batiquin's gloves after the operation nor blood smears
on her hands upon removing her gloves. 31 Moreover, the trial
court pointed out that the absence of a rubber drain was
corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the
operation on private respondent Villegas. 32 But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy
were denials or negative testimonies. Well-settled is the rule that
positive testimony is stronger than negative testimony. 33 Of
course, as the petitioners advocate, such positive testimony must
come from a credible source, which leads us to the second
assigned error.
While the petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a reading of the said testimony
reveals no such infirmity and establishes Dr. Kho as a credible
witness. Dr. Kho was frank throughout her turn on the witness
stand. Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness unimpaired.
34 The trial court's following declaration shows that while it was
critical of the lack of care with which Dr. Kho handled the piece
of rubber, it was not prepared to doubt Dr. Kho's credibility, thus
only supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified
about her findings, but it can also be said that she did not take the
most appropriate precaution to preserve that "piece of rubber" as
an eloquent evidence of what she would reveal should there be a
"legal problem" which she claim[s] to have anticipated. 35
Considering that we have assessed Dr. Kho to be a credible
witness, her positive testimony [that a piece of rubber was indeed
found in private respondent Villegas's abdomen] prevails over the
negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court
has had occasion to delve into the nature and operation of this
doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing
which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of
things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want
of care." Or as Black's Law Dictionary puts it:
Page 54 of 66
Res ipsa loquitur. The thing speaks for itself. Rebuttable
presumption or inference that defendant was negligent, which
arises upon proof that [the] instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res
ipsa loquitur is [a] rule of evidence whereby negligence of [the]
alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the]
absence of negligence it would not have occurred and that thing
which caused injury is shown to have been under [the]
management and control of [the] alleged wrongdoer . . . Under
[this] doctrine . . . the happening of an injury permits an
inference of negligence where the plaintiff produces substantial
evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the
ordinary course of things would not happen if reasonable care
had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence. The
doctrine is not a rule of substantive law, but merely a mode of
proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a particular case, is
not intended to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely
determines and regulates what shall the prima facie evidence
thereof and facilitates the burden of plaintiff of proving a breach
of the duty of due care. The doctrine can be invoked when and
only when, under the circumstances involved direct evidence is
absent and not readily available. 36
In the instant case, all the requisites for recourse to the doctrine
are present. First, the entire proceedings of the caesarean section
were under the exclusive control of Dr. Batiquin. In this light, the
private respondents were bereft of direct evidence as to the actual
culprit or the exact cause of the foreign object finding its way
into private respondent Villegas's body, which, needless to say,
does not occur unless through the intervention of negligence.
Second, since aside from the caesarean section, private
respondent Villegas underwent no other operation which could
have caused the offending piece of rubber to appear in her uterus,
it stands to reason that such could only have been a by-product of
the cesarean section performed by Dr. Batiquin. The petitioners,
in this regard, failed to overcome the presumption of negligence
arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a piece
of rubber in private respondent Villegas's abdomen and for all the
adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital
role the medical profession plays in the lives of the people, 37

and State's compelling interest to enact measures to protect the
public from " the potentially deadly effects of incompetence and
ignorance in those who would undertake to treat our bodies and
minds for disease or trauma." 38 Indeed, a physician is bound to
serve the interest of his patients "with the greatest of solicitude,
giving them always his best talent and skill. " 39 Through her
tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in
contravention of the legal standards set forth for professionals, in
the general, 40 and members of the medical profession, 41 in
particular.
WHEREFORE, the challenged decision of 11 May 1994 of the
Court of Appeals in CA-G.R. CV No. 30851 is hereby
AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
Narvasa, C .J ., Melo, Francisco and Panganiban, JJ ., concur.
17.[G.R. No. 45985. May 18, 1990.]
CHINA AIR LINES, LTD., petitioner, vs. COURT OF
APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES,
INC. and ROBERTO ESPIRITU, respondents.
[G.R. No. 46036. May 18, 1990.]
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU,
petitioners, vs. COURT OF APPEALS, JOSE PAGSIBIGAN
and CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air Lines,
Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R.
No. 46036.
Syquia Law Offices for Jose Pagsibigan.
DECISION
REGALADO, J p:
These consolidated petitions seek the review of the decision of
respondent court in CA-G.R. No. 53023-R entitled "Jose E.
Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and
Page 55 of 66
Roberto Espiritu, Defendants-Appellants; China Air Lines, Ltd.,
Defendant-Appellee," 1 the dispositive portion of which declares:
"WHEREFORE, except for a modification of the judgment in the
sense that the award of P20,000.00 in favor of the plaintiff shall
be in the concept of nominal damages instead of exemplary
damages, and that defendant China Air Lines, Ltd. shall likewise
be liable with its two co-defendants in a joint and solidary
capacity, the judgment appealed from is hereby affirmed in all
other respects, without costs." 2
The challenged decision of respondent court contains a synthesis
of the facts that spawned these cases and the judgment of the
court a quo which it affirmed with modifications, thus: LLphil
"On June 4, 1968, plaintiff Jose E. Pagsibigan, then vice-
president and general manager of Rentokil (Phils .) Inc., a local
firm dealing in insecticides, pesticides and related services
appurtenant thereto, purchased a plane ticket for a Manila-Taipei-
Hongkong-Manila flight from the Transaire Travel Agency. The
said agency, through its Cecille Baron, contacted the Manila
Hotel branch of defendant Philippine Air Lines which at that time
was a sales and ticketing agent of defendant China Air Lines. On
June 6, 1968, PAL, through its ticketing clerk defendant Roberto
Espiritu, cut and issued CAL Ticket No. 017991 for a Manila-
Taipei-Hongkong-Manila flight. According to the plane ticket,
the plaintiff was booked on CAL CI Flight No. 812 to depart
from Manila for Taipei on June 10, 1968 at 1720 hours (5:20
p.m.), Exhibit A.
"On June 10, 1968, one hour before the scheduled time of the
flight as stated in his ticket, the plaintiff arrived at the airport to
check in for CI Flight No. 812. Upon arriving at the airport, the
plaintiff was informed that the plane he was supposed to take for
Taipei had left at 10:20 in the morning of that day. The PAL
employees at the airport made appropriate arrangements for the
plaintiff to take PAL's flight to Taipei the following day, June 11,
1968. The plaintiff took said flight and arrived in Taipei around
noontime of the said date.
"On July 8, 1968, the plaintiff, through counsel, made formal
demand on defendant PAL for moral damages in not less than
P125,000.00 for what the plaintiff allegedly suffered as a result
of his failure to take the flight as stated in his plane ticket.
(Exhibit E) After a series of negotiations among the plaintiff,
PAL and CAL failed to reach an amicable settlement, the plaintiff
instituted this action in the Court of First Instance of Rizal on
September 22, 1969. In his complaint, plaintiff prays for the
recovery of P125,000.00 as moral damages and P25,000.00 for
and as attorney's fees. The moral damages allegedly arose from
the gross negligence of defendant Roberto Espiritu in stating on
the plane ticket that the time of departure was 1720 hours, instead
of 1020 hours which was the correct time of departure in the
revised summer schedule of CAL. Plaintiff claims that by reason
of his failure to take the plane, he suffered besmirched reputation,
embarrassment, mental anguish, wounded feelings and sleepless
nights, inasmuch as when he went to the airport, he was

accompanied by his business associates, close friends and
relatives. He further averred that his trip to Taipei was for the
purpose of conferring with a certain Peng Siong Lim, president
of the Union Taiwan Chemical Corporation, scheduled at 9:00
a.m. on June 11, 1968.
"Defendant Philippine Air Lines alleges in its answer that the
departure time indicated by Espiritu in the ticket was furnished
and confirmed by the reservation office of defendant China Air
Lines. It further avers that CAL had not informed PAL's Manila
Hotel Branch of the revised schedule of its flight, nor provided it
with revised timetable; that when the travel agency sought to
purchase the ticket for the plaintiff on CAL CI Flight No. 812 for
June 10, 1968, Espiritu who was then the ticketing clerk on duty,
checked with the reservation office of CAL on the availability of
space, the date and the time of said flight; that CAL's Dory Chan
informed Espiritu that the departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the afternoon of said date. PAL
asserted a cross-claim against CAL for attorney's fees and for
reimbursement of whatever amount the court may adjudge PAL
to be liable to the plaintiff. Defendant Espiritu adopted the
defenses of his co-defendant PAL.
"Defendant China Air Lines, for its part, disclaims liability for
the negligence and incompetence of the employees of PAL. It
avers that it had revised its schedule since April 1, 1968, the same
to be effective on April 20, 1968, and the said revised schedule
was adopted only after proper petition with and approval of the
Civil Aeronautics Board of which all airlines, including
defendant PAL, were notified; that both printed copies of the
international timetable and of the mimeographed notices of the
official schedule and flight departure schedules were distributed
to all its sales agents, including PAL; that after the effectivity of
the new time schedules, PAL's Manila Hotel office had been
issuing and selling tickets based on the revised time schedule;
and that, assuming that the plaintiff is entitled to recover
damages, the liability is on PAL and not on CAL. A cross-claim
was likewise asserted by CAL against its co-defendant PAL.
"After due trial, the Court a quo rendered judgment laying the
blame for the erroneous entry in the ticket as to the time of
departure to defendant Roberto Espiritu, ticketing agent of
defendant PAL, and that no employee of CAL contributed to such
erroneous entry. It was further ruled that the plaintiff had no
reason to claim moral damages but may be entitled to recover
exemplary damages. The dispositive portion of the decision
makes the following adjudication:
'WHEREFORE, premises considered, judgment is hereby
rendered sentencing the defendants Philippine Air Lines, Inc. and
Roberto Espiritu, to pay to plaintiff Jose Pagsibigan jointly and
severally, by way of exemplary damages, the sum of Twenty
Thousand Pesos (P20,000.00) plus Two Thousand Pesos
(P2,000.00) as reimbursement for attorney's fees and the costs.
'The complaint is dismissed with respect to the defendant China
Air Lines, Ltd. The cross-claim filed by defendant PAL and
Page 56 of 66
Espiritu against defendant CAL as well as the cross-claim filed
by the defendant CAL against defendant PAL and Espiritu are
also hereby dismissed.' " 3
From said decision of the court below, all the parties, except
China Air Lines, Ltd. appealed to respondent court which,
however, sustained the ruling of the trial court denying
Pagsibigan's claim for moral damages. It concluded that Roberto
Espiritu did not act with malice or in bad faith in making a wrong
entry of the time of departure on the ticket, and that the mistake
committed by Espiritu appears to be an honest one done in good
faith.
Respondent court also ruled out the claim for exemplary damages
for lack of legal basis. Nonetheless, as earlier noted, it awarded
Pagsibigan P20,000.00 as nominal damages, under Article 2221
of the Civil Code, for the vindication of a legal wrong committed
against him. cdphil
As regards the liability of the parties, respondent court held:
"There can be little question as to the liability of PAL and
Espiritu for the damage caused to the plaintiff due to the
erroneous entry in the plane ticket made by the latter. They seek
to justify the erroneous statement as to the time of departure on
the ground that such was the time given by Dory Chan to Espiritu
when the latter called up for the reservation in favor of plaintiff.
Aside from the fact that Dory Chan had vigorously disclaimed
having given such information to Espiritu, We are convinced that,
as the trial court had found, CAL had no share in the error
committed by Espiritu in indicating the time of departure of
Flight No. 812. PAL had shown through the testimony of Carmen
Ibazeta Gallaga, ticket representative of PAL at the Manila Hotel
Office, that they received circulars and timetables of airlines in
the PAL main office. It further appears that on two occasions,
defendant PAL cut and issued tickets for CAL based on the new
schedule even before June 10, 1968. As a matter of fact, the other
entries of time departures in the ticket issued to the plaintiff are
in accordance with the revised schedule, and that the only error
therein was with respect to the departure from Manila on June 10,
1968.
"However, in proving that the fault lied with Espiritu, defendant
CAL derives no solace nor gains an advantage. It may not claim
exemption from liability by reason thereof. Espiritu was an
employee of PAL and whatever negligence was committed by
him is attributable to PAL. It is an admitted fact that PAL is an
authorized agent of CAL. In this relationship, the responsibility
of defendant PAL for the tortious act of its agent or representative
is inescapable. . . .
xxx xxx xxx
"A similar principle is recognized in our Civil Code in its Art.
2180 . . . . Unlike in the doctrine of respondeat superior, however,
the Civil Code permits the employer to escape this liability upon
proof of having observed all the diligence of a good father of a

family to prevent the damage. We find the evidence of defendant
CAL to be insufficient to overcome the presumption of
negligence on its part for the act done by defendant Roberto
Espiritu. (Emphasis supplied).
"The liability for the damage sustained by the plaintiff should,
therefore, be borne by all of the defendants in a joint and solidary
capacity (Art. 2194). The liability of an employer under Art. 2180
is primary and direct. . . .
xxx xxx xxx
"It appearing that defendant CAL, as employer or principal, did
not contribute to the negligence committed by defendants PAL
and Roberto Espiritu, its liability to the plaintiff could be passed
on to said defendants. Defendant CAL, however, did not take an
appeal and did not, therefore, take exception to the dismissal of
its cross-claim against defendants PAL and Espiritu. This serves
as an obstacle for a rendition of judgment favorable to CAL on
its said counterclaim." 4
In its petition for review on certiorari in G.R. No. L-45985,
petitioner China Air Lines, Ltd. (CAL) relied on the following
grounds:
1. A principal can not be held liable, much less solidarily,
for the negligence of the sub-agent, where the former never
participated in, ratified or authorized the latter's act or omission.
2. Dismissal of the cross-claim of petitioner against the
private respondents Philippine Air Lines, Inc. and Roberto
Espiritu will not prevent the release of the petitioner from
liability to the private respondent Pagsibigan.
3. The award of damages was unwarranted both legally
and factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and
Roberto Espiritu made the following submissions in G.R. No L-
46036, to wit:
1. The respondent Court of Appeals erred in not holding
that respondent China Air Lines, Ltd., being the principal, is
solely liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding
respondent Pagsibigan the sum of P20,000.00 as nominal
damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way of
refutation, that CAL,'s liability is based on breach of contract of
transportation which was the proximate result of the negligence
and/or error committed by PAL and Espiritu; that even assuming
that CAL has no share in the negligence of PAL and Espiritu, the
liability of CAL does not cease upon proof that it exercised all
the diligence of a good father of a family in the selection and
supervision of its employees. Traversing such contentions, CAL
argues that it can not be made liable under Article 2180 of the
Page 57 of 66
Civil Code because of the absence of employer-employee
relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan
claims that PAL is liable under Article 1909 of the said code
which holds an agent responsible not only for fraud but also for
negligence which shall be judged with more or less rigor by the
courts, according to whether the agency was or was not for a
compensation. PAL, however, maintains that for lack of privity
with Pagsibigan, the suit for breach of contract should have been
directed against CAL. LibLex
What surfaces as a procedural maneuver taken by respondent
Pagsibigan in the course of the proceedings in these cases has
confused the real issues in the controversy subject of both
petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing two
remedies at the same time, that is, to enforce the civil liability of
CAL for breach of contract and, likewise, to recover from PAL
and Espiritu for tort or culpa aquiliana. What he has overlooked
is the proscription against double recovery under Article 2177 of
the Civil Code which, while not preventing recourse to any
appropriate remedy, prevents double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies,
the true nature of the action instituted by respondent Pagsibigan
must be determined. A careful perusal of the complaint of
respondent Pagsibigan will readily disclose that the allegations
thereof clearly and unmistakably make out a case for a quasi-
delict in this wise:
"4. That at all pertinent times particularly in June of 1968,
defendant China Air Lines Ltd. has been operating regular
scheduled flights to and from Manila, and has offered
accommodations thereon through, among others, defendant PAL
as its authorized sales agent and/or ticketing agent, such that
China Airlines Ltd. is here impleaded as being the principal of
defendant PAL;
"5. That at all pertinent times, particularly in June of 1968,
defendant Roberto Espiritu has been in the employ of defendant
PAL at its sales counter at the PAL Manila Hotel branch office
and is here impleaded as defendant as being the proximate
malfeasor in this cause of action;
xxx xxx xxx
"12. That plaintiff missed the initial Manila-Taipei leg (CI
Flight 812) on June 10, 1968, as set forth in his ticket (Annex 'A')
solely and exclusively by reason of gross incompetence and
inexcusable negligence amounting to bad faith of defendant PAL
— acting, through its sales representative, the defendant Roberto
Espiritu, of its Manila Hotel branch office — in the discharge of
its duties as sales agent and/or ticketing agent for defendant
China Airlines Ltd. as principal.

"13. That as a direct result of culpable incompetence and
negligence of defendant Roberto Espiritu as sales representative
of defendant PAL, plaintiff was unable to attend to previously
scheduled business commitments in Taipei . . . resulting in direct
and indirect prejudice to plaintiff that has yet to be fully
assessed;" (Emphasis supplied) 7
xxx xxx xxx
Had the intention of respondent Pagsibigan been to maintain an
action based on breach of contract of carriage, he could have
sued CAL alone considering that PAL is not a real party to the
contract. Moreover, in cases of such nature, the aggrieved party
does not have to prove that the common carrier was at fault or
was negligent. All he has to prove is the existence of the contract
and the fact of its non-performance by the carrier. 8
The records disclose that the trial court delved much into the
issues of who was at fault, and its decision is primarily anchored
on its factual findings regarding the civil liability arising from
culpa aquiliana of the erring party, to this effect:
"Plaintiff said that the erroneous entry in his ticket which made it
appear that his CAL flight of June 10, 1968 was to be at 5:20 in
the afternoon was due to the fault or negligence of PAL's Roberto
Espiritu, a co-defendant herein, as well as the employees of the
defendant CAL. In making CAL co-responsible, plaintiff appears
to rely on the doctrine that the principal is responsible for the act
of an agent done within the scope of the agency.
"There is no proof extant that any of the employees of CAL had
contributed to the erroneous entry in plaintiff's CAL ticket for
Taipei which placed his time of departure to 5:20 o'clock in the
afternoon of June 10, 1968. Only defendant Roberto Espiritu
appears to be solely and exclusively responsible for such error
and therefor the conclusion becomes inevitable that CAL must be
absolved from any blame because defendant Roberto Espiritu
who committed the error is not an employee or agent of the
defendant CAL." 9
It, therefore, becomes evident that respondent Pagsibigan, having
sensed that he can not hold CAL liable on a quasi-delict, decided
on appeal to instead make a sinistral detour, so to speak, by
claiming that his action against CAL is based on a breach of
contract of carriage. cdrep
We can not permit respondent Pagsibigan to change his theory at
this stage; it would be unfair to the adverse party who would
have no more opportunity to present further evidence, material to
the new theory, which it could have done had it been aware
earlier of the new theory at the time of the hearing before the trial
court. 10
There is indeed no basis whatsoever to hold CAL liable on a
quasi-delict or culpa aquiliana. As hereinbefore stated, the court a
quo absolved CAL of any liability for fault or negligence. This
finding was shared by respondent court when it concluded that
Page 58 of 66
defendant CAL did not contribute to the negligence committed
by therein defendants-appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving
that it observed due diligence in the selection and supervision of
its employees. This argument is obviously misplaced. CAL is not
the employer of PAL or Espiritu. In Duavit vs. The Hon. Court of
Appeals, et al., 11 we have stressed the need of first establishing
the existence of an employer-employee relationship before an
employer may be vicariously liable under Article 2180 of the
Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on
the theory that the former is merely an agent of CAL and that the
suit should have been directed against CAL alone. There is no
question that the contractual relation between both air lines is one
of agency. Suffice it to say, however, that in an action premised
on the employee's negligence, whereby respondent Pagsibigan
seeks recovery for the resulting damages from both PAL and
Espiritu without qualification, what is sought to be imposed is the
direct and primary liability of PAL as an employer under said
Article 2180.
When an injury is caused by the negligence of an employee, there
instantly arises a presumption of law that there was negligence on
the part of the employer either in the selection of the employee or
in the supervision over him after such selection. The
presumption, however, may be rebutted by a clear showing on
the part of the employer that it has exercised the care and
diligence of a good father of a family in the selection and
supervision of his employee. 12
Hence, to escape solidary liability for the quasi-delict committed
by Espiritu, it is imperative that PAL must adduce sufficient
proof that it exercised such degree of care. PAL failed to
overcome the presumption. As found by respondent court, CAL
had revised its schedule of flights since April 1, 1968; that after
the Civil Aeronautics Board had approved the revised schedule of
flights, PAL was duly informed thereof and, in fact, PAL's Manila
Hotel branch office had been issuing and selling tickets based on
the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general
proposition, an agent who duly acts as such is not personally
liable to third persons. However, there are admitted exceptions,
as in this case where the agent is being sued for damages arising
from a tort committed by his employee.
The respondent court found that the mistake committed by
Espiritu was done in good faith. While there is no evidence that
he acted with malice, we can not entirely condone his actuations.
As an employee of PAL, the nature of his functions requires him
to observe for the protection of the interests of another person
that degree of care, precaution and vigilance which the
circumstances justly demand. He committed a clear neglect of
duty.

Ergo, for his negligence, Espiritu is primarily liable to respondent
Pagsibigan under Article 2176 of the Civil Code. For the failure
of PAL to rebut the legal presumption of negligence in the
selection and supervision of its employee, it is also primarily
liable under Article 2180 of the same code which explicitly
provides that employers shall be liable for the damages caused by
their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.
Under the aforesaid provision, all that is required is that the
employee, by his negligence, committed a quasi-delict which
caused damage to another, and this suffices to hold the employer
primarily and solidarily responsible for the tortious act of the
employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the
offended party's claim. 13
On the issue of damages, we agree, except as to the amount, that
nominal damages may be awarded to respondent Pagsibigan to
vindicate the legal wrong committed against him. It appearing
that the wrong committed was immediately rectified when PAL
promptly booked him for the next morning's flight to Taipei
where he arrived before noon of June 11, 1968 and was able to
attend his scheduled conference, and considering the concept and
purpose of nominal damages, the award of P20,000.00 must
accordingly be reduced to an amount equal or at least
commensurate to the injury sustained.
WHEREFORE, the decision of respondent Court of Appeals is
MODIFIED accordingly. China Air Lines, Ltd. is hereby
absolved from liability. Philippine Air Lines, Inc. and Roberto
Espiritu are declared jointly and severally liable to pay the sum
of P10,000.00 by way of nominal damages, without prejudice to
the right of Philippine Air Lines, Inc. to recover from Roberto
Espiritu reimbursement of the damages that it may pay
respondent Jose Pagsibigan.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
18.EN BANC
[G.R. No.L-26810. August 31, 1970.]
ROSARIO SANTOS VDA. DE BONIFACIO, VIRGINIA
BONIFACIO, ROSALINDA BONIFACIO, ROMEO
BONIFACIO, ZENAIDA BONIFACIO, GENEROSO
BONIFACIO, ANDRES BONIFACIO, JOSE BONIFACIO,
JOVITO BONIFACIO, JR., CORAZON BONIFACIO,
ALBERTO CONCEPCION, AGUSTIN ANGELES and
ELISA ANGELES, plaintiffs-appellees, vs. B. L. T. BUS CO.,
INC., as Successors of LAGUNA TAYABAS BUS COMPANY
and SERGIO DE LUNA, defendants-appellants.
Leandro Sevilla & Ramon C. Aquino for plaintiffs-appellees.
Page 59 of 66
Domingo E. de Lara & Associates for defendants-appellants.
Damages; Negligence; Duty of driver to be watchful of others
using the same road.—A driver should be especially watchful in
anticipation of others who may be using the highway; and his
failure to keep a proper lookout for persons and objects in the
line to be traversed constitutes negligence. Evidence; Testimonial
evidence; Must be credible in itself.—Evidence to be believed,
must not only proceed from the mouth of a credible witness, but
it must be credible in itself. Damages; Negligence; Driver may
assume that another driver will return to his proper lane.—A
motorist who is properly proceeding on his own side of the
highway, even after he sees an approaching motorist coming
toward him on the wrong side, is generally entitled to assume that
the other motorist will return to his proper lane of traffic. Same;
Same; Employer‟s liability for negligence of employees;
Defense of due diligence in supervision of employees will not
prosper where employer was lax in supervision and maintenance
of vehicles.—The defense of due diligence of a good father of a
family will not help an employer where it is shown that it was
guilty of inexcusable laxity in the supervision of its driver and in
the maintenance of its vehicles. Evidence; Presentation of
evidence; Party presenting document must explain alteration
during presentation of document, not afterwards.—The rule
requires that a party, producing a writing as genuine but which is
found altered after its execution, in a part material to the question
in dispute, should account for the alteration, and, if he does that,
he may give the writing in evidence, but not otherwise. In other
words, a party presenting the writing should have accounted for
the alteration when he introduced the paper in evidence, and not
endeavor to explain the alteration afterwards. Damages; Interests;
Discretionary with court.—The grant of interest in damage suits
involving crimes and quasi-delicts is discretionary with the court.
Interests may be awarded despite the lack of prayer for interest in
the plaintiff‟s complaint. Judicial ethics; Judge; Disqualification;
Counsel was former classmate of judge, not a ground for
disqualification.—That one of the counsels in a case was a
classmate of the trial judge is not a legal ground for
disqualification of said judge. To allow it would unnecessarily
burden other trial judges to whom the case would be transferred.
Ultimately, confusion would result, if a judge would be barred
from sitting in a case whenever one of his former classmates
appeared. Same; Same; Same; Bias not proved by close scrutiny
of defense evidence.—That the judge would question defense
witnesses more closely than those of the plaintiffs is but natural,
since defendant‟s evidence varies from proof already on record.
It is no proof of bias. APPEAL from a judgment of the Court of
First Instance of Rizal. Makasiar, J.,
DECISION
REYES, J.B.L., J p:
Direct appeal to the Supreme Court (lodged prior to the
enactment of Republic Act No. 5440) from the judgment of the

Court of First Instance of Rizal (Pasig), in its Civil Case No.
8275, sentencing the defendants-appellants, B. L. T. Bus Co.,
Inc., and its driver Sergio de Luna, to pay jointly and severally to
the plaintiffs-appellees, as damages arising from a vehicular
accident, the total amount of P240,905.72, with interest from the
filing of the complaint.
Said Civil Case 8275 was filed pursuant to a reservation made by
the plaintiffs to file a civil action separately from the criminal
case instituted against the B. L. T. B. bus driver Sergio de Luna
in the Court of First Instance of Laguna, for homicide and
multiple physical injuries and damage to property through
reckless imprudence, in connection with the same vehicular
accident. The Laguna Court had convicted de Luna of the
criminal charge, but the judgment, was appealed and is pending
in the Court of Appeals.
Of the detailed findings of facts of the trial court, we affirm the
following as either non-controverted or preponderantly
established by the evidence:
"Before February 27, 1964, Jovito Bonifacio, Sr., together with
his wife (plaintiff Rosario Santos de Bonifacio) and neighbor
Agustin Angeles, used to bathe in the Pansol hot springs at Los
Baños, Laguna, twice a week. They made such trips in his 1962
Mercedes Benz car with plaintiff Alberto Concepcion as his
driver, a duly licensed driver since 1946.
"About 4:00 o'clock in the morning of February 27, 1964, the
four of them left Barrio Sumilang, Pasig, bound for the Pansol
hot springs in Los Baños, Laguna. Jovito, Sr. was seated beside
his driver Alberto Concepcion; while Agustin Angeles was seated
on the left side of the rear seat with plaintiff Rosario Santos Vda.
de Bonifacio to his right. Alberto Concepcion was driving the car
on the right lane facing Los Baños at the rate of 30 miles per hour
because the concrete road was slippery as it was then drizzling.
After going down the overpass or bridge and negotiating the
curve after the said bridge at Barrio Landayan, San Pedro
Tunasan, Laguna, Alberto Concepcion saw a cargo truck parked
on the left portion of the concrete highway without any parking
lights. It was about 5:20 a.m., still dark and raining. While he was
about 15 meters from the said parked cargo truck, he saw for the
first time the oncoming LTB passenger bus No. 136 bearing 1964
plate No. PUB-1276, about 200 meters away from him and about
185 meters behind the parked cargo truck. Said bus was then
driven at a very fast clip by the defendant Sergio de Luna.
Because he was on his right lane, Alberto Concepcion continued
on his way at the rate of 30 miles per hour. The parked truck was
entirely on the left lane and about one (1) meter from the center,
of the concrete highway. His Mercedes Benz was passing
alongside the parked truck and about 70 cm. from the center of
the road. Just as he was about to pass beyond the parked truck,
the oncoming LTB bus suddenly swerved to its left towards the
right lane of the Mercedes Benz and collided with the Mercedes
Benz. The place of collision was about 10 meters from the parked
truck. The impact caused the Mercedes car to swerve to the right
shoulder of the road facing Los Baños, as Alberto slammed his
Page 60 of 66
brakes, and the Mercedes car stopped on the right shoulder,
which is about two meters wide: while the LTB bus made a
complete U-turn and finally stopped on the left lane of the
concrete highway facing Los Baños or the direction where it
came from. It was filled with about 40 passengers then (see
pictures Exhs. H, I, J, K, L, M, and SS or 13 and 26, pp. 92-94,
391, 576, rec.). The left front part of the Mercedes Benz was
smashed (see pictures Exhs. H and I, p. 92, rec.). The violent
impact threw Jovito Bonifacio, Sr. out of the car onto the right
shoulder of the road facing Los Baños, causing his instantaneous
death (Exhs. J. K. L and M, pp, 93-94, rec.)while the other
passengers, the driving [sic] Alberto Concepcion, Mrs. Rosario
Santos Vda. de Bonifacio, and Agustin Angeles, lost
consciousness and were seriously injured. They recovered
consciousness in the Manila Sanitarium and Hospital in Pasay
City to where they were brought that same morning of the
incident." (Decision, Rec. on App., pp. 116-119)
As is usual in cases of this kind, three main issues arise:
(1) Who of the drivers of the colliding vehicles was at fault?
(2) Is the employer of the guilty driver responsible for the
fault of the latter?
(3) Are the damages awarded reasonable?
Taking up the questions seriatim, we find that the court below
correctly held that the proximate cause of the accident was the
negligence of the L.T.B. bus driver, de Luna, who failed to take
the necessary precautions demanded by the circumstances. He
admitted that when the mishap occurred, it was still dark, and as
it was raining, requisite prudence required that de Luna should be
more careful than usual, and slacken his pace, for the wet
highway could be expected to be slippery. Even assuming that
the presence of the parked cargo truck did constitute an
emergency, although it was in plain view, still, if de Luna had not
been driving unreasonably fast, his bus would not have skidded
to the left and invaded the lane of the oncoming car when he
applied his brakes. His having failed to see the parked cargo
truck until he was only 50 meters from it also justifies the
inference that he was inattentive to his responsibility as a driver.
That he did not know that anyone else was using the road is no
defense to his negligent operation of his vehicle, since he should
be especially watchful in anticipation of others who may be using
the highway; and his failure to keep a proper lookout for persons
and objects in the line to be traversed constitutes negligence (7
Am. Jur. 2d 901). Furthermore, in intruding into the lane reserved
for vehicles coming from the opposite direction, it was
incumbent upon the bus driver to make sure that be could do so
without danger.
Confirmatory of the foregoing considerations is the fact that de
Luna himself admitted, in the statement, Exhibit "A," taken by
the chief of police, and subscribed and sworn to before the Mayor
of San Pedro, Laguna, at 8:00 o'clock in the same morning of the
accident, and while the facts were fresh in his mind, that when he

(de Luna) noticed the parked cargo truck he slammed on his
brakes and because of this, the bus skidded to the left and hit the
Mercedes Benz car (". . . ang ginawa ko po ay nagpreno ako ng
aking sasakyang minamaneho at dahil po dito ay umislayd ang
aking trak na papuntang kaliwa, subalit siya po namang pagdaan
ng isang awtong Mercedes Benz na aking nabunggo . . .")
The version at the trial of defendant-appellant Sergio de Luna,
and his witnesses, is that when the former saw the parked cargo
truck he slowed down, swerved a little to the left, then
completely stopped his vehicle; that right then, the Mercedes
Benz car hit his bus, with such force that the bus turned to the
direction where it came from. Not only is this version belied by
de Luna's original and spontaneous statement to the San Pedro
Police, but it was infirmed by physical facts.
It is incredible, and contrary to common experience and
observation, that the bus, admittedly three (3) times bigger than
the car, and loaded with about forty(40) passengers, could be
turned around while standing still by the impact of the much
smaller car. Nor was his swerving to the left justifiable if he were
in control of his vehicle, since he had a clear view of the left lane
and the oncoming Mercedes Benz from the driver's seat of the
bus. Evidence, to be believed, must not only proceed from the
mouth of a credible witness, but it must be credible in itself
(People v. Baquiran, L-20153, 29 June 1967, 20 SCRA 451).
There was no negligence on the part of the driver of the
Mercedes car, Alberto Concepcion.
"A motorist who is properly proceeding on his own side of the
highway, even after he sees an approaching motorist coming
toward him on the wrong side, is generally entitled to assume that
the other motorist will return to his proper lane of traffic, . . ." (8
Am. Jur. 2d 319)
That the L.T.B. bus was damaged near the front right wheel and
fender proves that the Mercedes was already very close to the
place of collision when it occurred, so that the car driver had no
chance to evade it. Nor did said driver, Concepcion, possess any
means of knowing that the bus intruding into his line of travel
was skidding out of control, and could not draw back to its
proper lane.
Appellants pretend that the Mercedes car was proceeding at
reckless speed, but this charge rests on nothing more substantial
than an alleged statement by Mrs. Bonifacio at the hospital that
her driver was driving fast. The court below, in our opinion,
correctly discredited this evidence, for at the time it was
supposedly made, Mrs. Bonifacio was still in a state of shock,
with visitors barred by doctor's orders; and, moreover, defense
witness, ex-Cpl. Casantusan, did not even take down or report the
pretended statement, notwithstanding its patent importance; there
was no corroboration thereof, and it was contradicted by the car
driver and by Mrs. Bonifacio herself. The rule, too well-known to
require citation of authorities, is that in the absence of clear error
(and none is shown in the present instance) a trial court's estimate
Page 61 of 66
on the credibility of witnesses, whose demeanor it had
unparalleled opportunity to observe, will not be disturbed on
appeal.
At any rate, so long as the Mercedes car remained in its proper
lane, its speed could not have been the proximate cause of the
mishap.
On the second issue posed, the rule under Article 2180 of the
Civil Code of the Philippines makes an employer liable for
damage caused by his employee in the discharge of his duties,
unless the former adequately proves having exercised due care in
the selection and supervision of the employee.
Appellant company defends that it had observed all the diligence
of a good father of a family to prevent damage, conformably to
the last paragraph of said Article 2180. It adduced evidence to
show that in hiring driver de Luna, the latter was tested on his
proficiency as a driver; that he passed the test given by the
company's board of examiners, composed of the office manager,
the medical director, the chief of the legal department and the job
superintendent, aside from the orientation test given by
experienced drivers along the different lines of the company; that
the company issued service manuals to its employees, aside from
memorandum circulars and duty orders to govern the conduct of
its drivers; that it assigns inspectors interlinked with one another
along the different lines of the company to see to it that the rules
and regulations are complied with by all the drivers; that it metes
out penalties, such as fines, to erring drivers; that it maintains
shops at different stations where several mechanics are assigned
to see to it that no truck leaves on the line without being
thoroughly checked; that it keeps a summary of service records
of its drivers to help in determining their efficiency and fitness;
that it conducts seminars on safe-driving and prevention of
accidents; that it had received an award of appreciation in 1963
by the National Traffic Safety Committee; that it used the best
available brake lining on Bus No. 136 and that said bus was
completely checked for road worthiness the day before the
accident.
Yet the evidence of appellant company also established facts that
demolished its very defense of "diligence of a good father of a
family," for it plainly shows inexcusable laxity in the supervision
of its driver and in the maintenance of its vehicles. Salient among
these facts are the following:
(a) Defense witness Cuevas asserted that the brake lining of
the bus was changed on 10 January 1964, over a month prior to
the accident, although brake linings last about 30 days only. The
change in lining was overdue but the appellant bus company tried
to hide this fact. Said the trial court:
". . . The job sheet for the change of brake lining appears dated
Jan. 10, 1964, in ink. There was an attempt to change it by
crossing out "Jan." and super-imposing the word "Feb." in pencil
(see page 598, rec.). There was an attempt to make "Feb. 10,
1964" as altered appear as the correct date — instead of January

10, 1964 — by not arranging chronologically the various orders
and/or job sheets for said bus No. 136 in said folder, Exh. 27, and
by placing the said small job sheet as page 11 of the said folder,
Exhibit 27, which has for its first page an order for bus No. 136
dated February 13, 1964 (p. 1 of Exhibit 27 or Exh. 25-B, p. 290,
rec.)." (Rec. on Appeal, p. 132.)
By resorting to these documentary alterations, the company
indicated its awareness that its case is weak or unfounded and
from that may be inferred that its case of appellant lacks truth and
merit. 1 The claim on appeal that the alteration in the writing
was innocent, or that the company should have been given an
opportunity to explain because it was caught unaware that the
court below would take the incident against them as it did, is
untenable. The rule requires that a party, producing a writing as
genuine but which as found altered after its execution, in a part
material to the question in dispute, should account for the
alteration, and if "he do that, he may give the writing in evidence,
but not otherwise." (Section 32, Rule 132, Revised Rules of
Court.) In other words, the company should have accounted for
the alteration when it introduced the job sheet in evidence, and
not endeavor to explain the alteration afterwards.
(b) The record of driver de Luna shows that, on the average,
he was at the wheel and on the road for eleven (11) hours and
thirty-five (35) minutes per day, from Paete to Manila and back,
and Paete to San Antonio and back, starting before dawn until the
evening. He has been in the Paete-Manila route for four (4) years
(T.s.n., 22 November 1965, pages 38-39). He was paid by the
hour, so that the more time he drove, the greater compensation he
received. That employer company thus abetted, obviously for the
sake of greater profit, the gruelling schedule, unmindful of the
harmful consequence that excessive working time would register
upon the driver's health, and, particularly, on his reflexes. The
pay-off came when driver de Luna, because of his accumulated
fatigue and inattentiveness failed to notice seasonably the
presence of the parked cargo truck upon his lane of traffic,
impelling him to brake suddenly in an effort to avoid hitting it,
The braking made the bus slide and encroach upon the other lane,
resulting in its collision with the oncoming automobile.
(c) Sergio de Luna had repeatedly violated company rules.
Despite his numerous infractions, 31 in all since 1951, and
including a collision with a carretela, the company took no more
drastic action against him other than repeated warnings and
imposing token fines, which on the whole amounts to tolerance
of the violations or laxity or negligence in the enforcement of the
company rules.
(d) On its bus involved in the accident (No. 136), the
appellant company was also negligent. The bus was last
overhauled on 26 January 1963 but was usually overhauled every
six months; its overhauling therefore, was overdue by six
months. In addition, as heretofore observed, its brake linings
were last changed on 10 January 1964, but were usually changed
every 30 days; the changing was therefore, overdue by one (1)
month and seventeen (17) days at the time of the mishap, and
Page 62 of 66
must have contributed to the driver's inability to control the
skidding that led to the collision.
In the face of these plain instances of lax supervision, the trial
court has aptly remarked:
"The mere issuance of numerous rules and regulations, without
the corresponding periodic checks as to whether such rules and
regulations are being complied with, is not sufficient to exempt
the defendant bus firm from liability arising from the negligence
of its employees. Neither the establishment of maintenance and
repair shops, which do not regularly service its buses, would
suffice to demonstrate the diligence of the employer in the
selection and supervision of its employees and in servicing and
maintaining the buses in good running condition."
The minor errors charged against the appealed decision do not
suffice to overrule the findings of negligence of both the driver
and the company, measured by the requirements of ordinary
diligence. Appellants' complaint in their brief, that the lower
court applied the law requiring carriers to observe extraordinary
diligence with respect to passengers, and not ordinary diligence
with respect to third parties as in the present case, is without
basis.
On the question of damages, the trial court properly took into
account that the late Jovito Bonifacio, Sr., was already a
successful businessman when his life was cut short, at the age of
49, by the highway accident. He was treasurer of Bonifacio
Bros., Inc., a firm owned by himself and his brother, and which is
engaged in the business of repairing motor vehicles. The assets of
said firm in 1962 were worth P1,059,754.53; it had 102
employees receiving a salary of P1,800.00 or more, per annum;
in 1963, its assets were worth P995,885.78 (Exhibits "KK-2" &
"KK-3"). In April, 1963, the deceased founded J. Bonifacio
Bros., Inc., which also engaged in the same line of business, with
principal office at 267 P. Casal, Manila, and of which he was
president at ,the time of his demise. The deceased had a net
income of P33,738.62 and P24,000.00 in 1962 and 1963,
respectively. 2 The lower court, therefore, fairly assessed that,
had he lived to the age of 55, he would have earned a total net
income of P144,000.00. The six-year life expectancy allowed by
the trial court is shorter than that shown by insurance mortality
tables, but the award was not appealed.
Bonifacio's family incurred expenses of P13,764.05, as follows;
coffin — P600.00; burial lot — P90.00; cost of publication of
death notices — P720.00; tomb — P4,850.00; food and gasoline
during vigil — P1,782.00; other expenses — P500.00;
compensation to a private investigator to look into the record of
defendant driver Sergio de Luna — P222.05; and damage to
Mercedes Benz car, not covered by insurance — P5,000.00.
Defendants-appellants question the actual and litigation expenses
because they were paid by the firm J. Bonifacio Bros., Inc.,
arguing that said firm, not the plaintiffs, has the right to claim the
damages by virtue of subrogation, per Articles 1302 and 1303 of
 Page 63 of 66

the Civil Code. This is a defense that, even if true (which we
need not rule upon) should have been invoked in the court below,
and its interposition comes too late on appeal. Moreover, such a
technical defense deserves scant consideration, because the firm
is a family corporation and a subrogation of parties will neither
diminish the expenses nor exculpate defendants-appellants from
liability therefor.
unconscionable, as appellants aver, but are justified, considering
all the circumstances of the case.
Interest on the various damages at 6% per annum since the filing
of the suit was also awarded, despite the lack of prayer for
interest in the plaintiffs' complaint. The grant of interest is not
necessarily error, for under the Civil Code —

Plaintiff-appellee Rosario Santos Vda. de Bonifacio regained "ART. 2211. In crimes and quasi-delicts, interest as a part of
consciousness at the Manila Sanitarium and Hospital. She the damages may, in a proper case, be adjudicated in the
suffered a lacerated wound in the frontal region of her head, discretion of the court."
contusion on the left side of her face, fracture of the distal portion
The findings and conclusions of negligence on the part of the
of her left ulna and dislocation of the left femur. She was
defendants-appellants, and not on the part of the plaintiffs-
confined in the hospital from 27 February 1964 to 15 March
appellees, show the lack of merit of the last assignment of error
1964. Her hospital bills and compensation for special nurses
about the denial of appellants' counterclaim for the fees of their
amounted to P1,658.48. During her confinement, she failed to
own counsel.
receive her salary, amounting to P608.00.
Appellants stress that the trial court should be held disqualified
Driver Alberto Concepcion of the Mercedes Benz car, sustained
because the counsel for plaintiffs-appellees had been a classmate
compound fractures; his right foot was in a plaster cast for six (6)
of the trial judge. Admittedly, this is not a legal ground for
months and one (1) week; his left leg was under traction and
disqualification. To allow it would unnecessarily burden other
hanging for two (2) weeks, his left hip-bone dislocated. He was
trial judges to whom the case would be transferred. Ultimately,
confined in the hospital for one (1) month and four (4) days. Up
confusion would result, for under the rule advocated, a judge
to the time the lower court rendered its decision on 30 July 1966,
would be barred from sitting in a case whenever one of his
Concepcion had to go in crutches to the hospital, for treatment.
former classmates (and he could have many) appeared. Nor have
His medical expenses amounted to P1,777.21. As a driver of the
the appellants successfully shown here that bias distorted the
deceased Jovito Bonifacio, Sr., he was paid a weekly salary of
judgment or conduct of the challenged trier of the case. That he
P50.00, with free meals, which remuneration may be estimated to
should question defense witnesses more closely than those of the
be P4,000.00 yearly (T.s.n., 22 October 1964, page 10) . He was
plaintiffs is but natural, since defendants' evidence varies from
40 years old at the time of the accident and there is no indication
proof already on record. A desire to get at the truth is no proof of
as to when he would be able to drive again. If he would be
bias or prejudice.
permanently incapacitated from driving again, he may, in the
future, be able to find a different calling or gainful occupation. FINDING NO REVERSIBLE ERROR, the decision appealed
The award of P15,000.00, as compensatory damages, is fair and from is hereby affirmed. Costs against the appellants.
reasonable.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando,
Agustin Angeles suffered a broken right wrist, a crack in the top Teehankee and Villamor, JJ., concur.
left part of his head, sunken left eye, and a wound in the left
cheek. He regained consciousness at the hospital only after 11 Barredo and Makasiar, JJ., did not take part.
days from the time of the accident. He was confined for 18 days,
and billed for P1,097.98. Due to the accident, his memory and 19.FIRST DIVISION
vision were impaired; he now walks with a cane; his bowel
[G.R. No. 96781. October 1, 1993.]
movement and urination are now abnormal and irregular; he
cannot freely move his right arm. He was 76 years old at the time EMILIANO MANUEL and SUPERLINES
of the accident, but despite his age, he used to repair watches, TRANSPORTATION CO., INC., petitioners, vs.
with an suffrage monthly income of P250.00. He cannot repair HONORABLE COURT OF APPEALS, ERNESTO A.
watches anymore. The lower court granted him compensatory RAMOS substituted by Goyena Z. Ramos, Grace, David,
damages for P3,000.00. Jobet, Portia and Banjo, all surnamed RAMOS; and
GOYENA ZANAROSA-RAMOS, for herself and as
For their shock, worry and anguish, the court below awarded
Guardian Ad Litem for the minors JOBET, BANJO, DAVID
moral damages to the plaintiffs-members of the family of the
and GRACE, all surnamed RAMOS; FERNANDO
deceased Jovito Bonifacio, Sr. in the sum of P20,000.00; to
ABCEDE, SR., for himself and as Guardian Ad Litem for
Rosaria Santos Vda. de Bonifacio, the sum of P10,000.00; to
minor FERNANDO G. ABCEDE, JR.; MIGUEL JERNZ
Alberto Concepcion and Agustin Angeles, the sum of P5,000.00
MAGO, as Guardian Ad Litem for minor ARLEEN R.
each. It also granted the family group and each of the aforenamed
MAGO, and ANACLETA J. ZANAROSA, respondents.
plaintiffs P5,000.00, as exemplary damages. The quantum of
moral and exemplary damages thus awarded is not

Benito P. Fabie for petitioners.
Costante Banayos for private respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS;
REGULAR PERFORMANCE OF OFFICIAL DUTIES;
UNREBUTTED IN CASE AT BAR. — Petitioners questioned
the accuracy of the pictures and sketches submitted by private
respondents as evidence that the Superlines bus encroached on
the lane of the Scout car. According to them, the sketch made by
the police investigator showing the skid marks of the bus, is
inadmissible as evidence because it was prepared the day after
the incident and the alleged "tell-tale" skid marks and other
details had already been obliterated by the heavy downpour
which lasted for at least an hour after the accident. Likewise, they
claim that the policeman who prepared the sketch was not the
police officer assigned to conduct the investigation. While it may
be accepted that some of the skid marks may have been erased by
the "heavy downpour" on or about the time of the accident, it
remains a possibility that not all skid marks were washed away.
The strong presumption of regularity in the performance of
official duty (Rule 131, Sec. 3(m), 1989 Rules on Evidence)
erases, in the absence of evidence to the contrary, any suspicions
that the police investigator just invented the skid marks indicated
in his report.
2. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF
APPEALS; RULE; REASONS THEREFOR. — This Court has
followed a well-entrenched principle that the factual findings of
the Court of Appeals are normally given great weight, more so
when said findings tally with the findings of the trial court and
are supported by the evidence (Francisco v. Magbitang, 173
SCRA 382 [1989]); New Owners/Management of TML
Garments, Inc. v. Zaragoza, 170 SCRA 563-564 [1989]). The
reason for this entrenched principle is given in Chemplex
(Phils.), Inc., et al. v. Ramon C. Pamatian, et al., 57 SCRA 408
[1974], thus: "This Court is not a trier of facts, and it is beyond
its function to make its own findings of certain vital facts
different from those of the trial court, especially on the basis of
the conflicting claims of the parties and without the evidence
being properly before it. For this Court to make such factual
conclusions is entirely unjustified - first, because if material facts
are controverted, as in this case, and they are issues being
litigated before the lower court, the petition for certiorari would
not be in aid of the appellate jurisdiction of this Court; and,
secondly, because it preempts the primary function of the lower
court, namely, to try the case on the merits, receive all the
evidence to be presented by the parties, and only then come to a
definite decision, including either the maintenance or the
discharge of the preliminary injunction it has issued."
3. COMMERCIAL LAW; TRANSPORTATION; COLLISION;
ISSUE OF UNLICENSED DRIVER; CANNOT EXEMPT THE
PARTY'S AT FAULT FROM LIABILITY. — The evidence with
respect to the issue that Fernando Abcede, Jr. who was not duly
Page 64 of 66
licensed, was the one driving the Scout car at the time of the
accident, could not simply exempt petitioners' liability because
they were the parties at fault for encroaching on the Scout car's
lane. Nevertheless, the witnesses presented by petitioners who
allegedly saw "the younger Abcede pined behind the driver's
wheels," testified on matters that transpired after the accident.
Discrediting this allegation, the Court of Appeals noted that none
of the aforesaid witnesses actually saw the younger Abcede
driving the car and that the younger Abcede could have simply
been thrown off his seat toward the steering wheel.
4. CIVIL LAW; MORAL DAMAGES; PROPER IN CASE OF A
CRIMINAL OFFENSE RESULTING IN PHYSICAL
INJURIES. — Appellants, likewise, contested the awarded
damages as excessive and unsubstantiated. The trial court's
findings show otherwise, as can be gleaned from the following
excerpt of its decision: "Plaintiffs were able to prove their
injuries and submitted evidence to show expenses for their
treatment, hospitalization and incidental disbursement, having a
total amount of P12,204.86 which had admittedly (sic)
shouldered by plaintiff Ernesto Ramos. Considering the nature of
the injuries as shown by the respective Medical Certificates said
amount is very reasonable. It was also shown that the Scout car is
a total wreck, the value of which was estimated to be P20,000.00
which may be the same amount to put (sic) into a running
condition. We consider, likewise said amount reasonable taking
into account its brand (International Harvester Scout car). The
above mentioned damages are considered actual or compensatory
(Par. 1 Art. 2197 in relation to Art. 2199, New Civil Code).
Evidence was also adduced showing that as a result of the
incident and the resultant injuries there had been an impairment
on the earning capacity of some of the plaintiffs (Fernando
Abcede, Sr., Anacleta Zanarosa, Ernesto Ramos and Goyena
Ramos) which are recoverable pursuant to Article 2205 of the
New Civil Code. Considering the nature of their injuries one
month each loss of income seem reasonable. Attorney's fees and
expenses of litigation is also proper. Since the act complained of
falls under the aegis of quasi-delict (culpa aquiliana), moral
damages is likewise available to plaintiffs pursuant to Article
2219 also of the New Civil Code." In addition, moral damages
may be recovered if they are the proximate results of defendant's
wrongful acts or omission as in this case (Banson vs. CA, 175
SCRA 297 [1989]).
DECISION
QUIASON, J p:
This is an appeal by certiorari under Rule 45 of the Revised
Rules of Court from the decision of the Court of Appeals in CA-
G.R. CV No. 11780, and its Resolution dated January 8, 1991,
denying petitioners' motion for reconsideration. The decision
subject of the appeal was an affirmation of the judgment of the
Court of First Instance of Camarines Norte, in Civil Case No.
3020 and whose dispositive portion states: cdphil

"PREMISES CONSIDERED, judgment is hereby rendered: (1)
finding the defendant Emiliano Manuel negligent, reckless and
imprudent in the operation of Superlines Bus No. 406, which was
the proximate cause of the injuries suffered by the plaintiffs and
damage of the Scout Car in which they were riding; (2) ordering
the said defendant, jointly and solidarily, with the defendant
Superlines Bus Co., Inc. to pay plaintiffs the amounts of
P49,954.86, as itemized elsewhere in this decision and the costs.
"It appearing that the defendants Superlines Transportation Co.,
Inc. is insured with the defendant Perla Compania de Seguros,
which has admitted such insurance, the latter is hereby ordered to
pay the former the amounts so stated up to the extent of its
insurance coverage" (Rollo, pp. 70-71).
The operative facts culled from the decision of the Court of
Appeals are as follows:
Private respondents were passengers of an International
Harvester Scout Car (Scout car) owned by respondent Ramos,
which left Manila for Camarines Norte in the morning of
December 27, 1977 with respondent Fernando Abcede, Sr. as the
driver of the vehicle. cdll
There was a drizzle at about 4:10 P.M. when the Scout car, which
was negotiating the zigzag road in Bo. Paraiso, Sta. Elena,
Camarines Norte, was hit on its left side by a bus. The bus was
owned by petitioner Superlines Transportation, Co., Inc. and was
driven by petitioner Emiliano Manuel. Due to the impact, the
Scout car was thrown backwards against a protective railing.
Were it not for the railing, the Scout car would have fallen into a
deep ravine. All its ten occupants, which included four children,
were injured, seven of the victims sustained serious physical
injuries (Rollo, p. 28).
Emiliano Manuel, the driver of the bus, was prosecuted for
multiple physical injuries through reckless imprudence in the
Municipal Court of Sta. Elena, Camarines Norte. As he could not
be found after he ceased reporting for work a few days following
the incident, the private respondents filed the instant action for
damages based on quasi-delict.
After trial, the court a quo rendered judgment against petitioners
and Perla Compania de Seguros, that covered the insurance of the
bus. The court ordered them to pay, jointly and severally, the
amount of P49,954.86 in damages to respondents.
On appeal, the Court of Appeals, affirmed the decision of the trial
court.
In their appeal before us, petitioners contend that it was Fernando
Abcede, Jr., driver of the Scout car, who was at fault. Besides,
petitioners claim that Fernando Abcede, Jr., who was only 19-
years old at the time of the incident, did not have a driver's
license (Rollo, p. 10).
Page 65 of 66
Proof of this, according to petitioners, was that: LibLex
"Immediately after the accident, the bus conductor Cesar Pica
and passengers, including Maximino Jaro, alighted from the bus.
A woman passenger of the IH Scout car, Mrs. Ramos, was heard
saying: 'Iyan na nga ba ang sinasabi ko, napakalakas ang loob,'
referring to young man, Fernando Abcede, Jr. who was the driver
of the IH Scout car (tsn., p. 43, November 19, 1979; tsn, p. 23-A.
February 7, 1980) . . ." (Rollo, p. 75).
Likewise, petitioners questioned the accuracy of the pictures and
sketches submitted by private respondents as evidence that the
Superlines bus encroached on the lane of the Scout car.
According to them, the sketch made by the police investigator
showing the skid marks of the bus, is inadmissible as evidence
because it was prepared the day after the incident and the alleged
"tell-tale" skid marks and other details had already been
obliterated by the heavy downpour which lasted for at least an
hour after the accident (Rollo, p. 87). Likewise, they claim that
the policeman who prepared the sketch was not the police officer
assigned to conduct the investigation (Rollo, pp. 88-89).
While it may be accepted that some of the skid marks may have
been erased by the "heavy downpour" on or about the time of the
accident, it remains a possibility that not all skid marks were
washed away. The strong presumption of regularity in the
performance of official duty (Rule 131, Sec. 3(m), 1989 Rules on
Evidence) erases, in the absence of evidence to the contrary, any
suspicions that the police investigator just invented the skid
marks indicated in his report. cdll
Granting, however, that the skid marks in the questioned sketch
were inaccurate, nonetheless, the finding of the Court of Appeals
that the collision took place within the lane of the Scout car was
supported by other conclusive evidence. "Indeed, a trail of
broken glass which was scattered along the car's side of the road,
whereas the bus lane was entirely clear of debris (Exhibit "L-1",
p. 34, Records, pp. 56-65; TSN, Session of March 14, 1979)"
(Rollo, p. 31).
Furthermore, the fact that the Scout car was found after the
impact at rest against the guard railing shows that it must have
been hit and thrown backwards by the bus (Rollo, p. 103). The
physical evidence do not show that the Superlines Bus while
travelling at high speed, usurped a portion of the lane occupied
by the Scout car before hitting it on its left side. On collision, the
impact due to the force exerted by a heavier and bigger passenger
bus on the smaller and lighter Scout car, heavily damaged the
latter and threw it against the guard railing.
Petitioners' contention that the Scout car must have been moved
backwards is not only a speculation but is contrary to human
experience. There was no reason to move it backwards against
the guard railing. If the purpose was to clear the road, all that was
done was to leave it where it was at the time of the collision,
which was well inside its assigned lane. Besides, even petitioners
accept the fact that when the police arrived at the scene of the
 Page 66 of 66

accident, they found no one thereat (Rollo, p. 13). This further
weakens the possibility that some persons moved the Scout car to
rest on the guard railing.
The evidence with respect to the issue that Fernando Abcede, Jr.
who was not duly licensed, was the one driving the Scout car at
the time of the accident, could not simply exempt petitioners'
liability because they were the parties at fault for encroaching on
the Scout car's lane (Rollo, pp. 29-30).
Nevertheless, the witnesses presented by petitioners who
allegedly saw "the younger Abcede pinned behind the driver's
wheels," testified on matters that transpired after the accident.
Discrediting this allegation, the Court of Appeals noted that none
of the aforesaid witnesses actually saw the younger Abcede
driving the car and that the younger Abcede could have simply
been thrown off his seat toward the steering wheel (Rollo, p. 29).
LexLib
Be that as it may, this Court has followed a well-entrenched
principle that the factual findings of the Court of Appeals are
normally given great weight, more so when said findings tally
with the findings of the trial court and are supported by the
evidence (Francisco v. Magbitang, 173 SCRA 382 [1989]); New
Owners/Management of TML Garments, Inc. v. Zaragoza, 170
SCRA 563-564 [1989]).
Medical Certificates (Exhs. A to J and their submarkings) said
amount is very reasonable. It was also shown that the Scout car is
a total wreck, the value of which was estimated to be P20,000.00
which may be the same amount to put (sic) into a running
condition. We consider, likewise said amount reasonable taking
into account its brand (International Harvester Scout car). The
above mentioned damages are considered actual or compensatory
(Par. 1 Art. 2197 in relation to Art. 2199, New Civil Code).
Evidence was also adduced showing that as a result of the
incident and the resultant injuries there had been an impairment
on the earning capacity of some of the plaintiffs (Fernando
Abcede, Sr., Anacleta Zanarosa, Ernesto Ramos and Goyena
Ramos) which are recoverable pursuant to Article 2205 of the
New Civil Code. Considering the nature of their injuries one
month each loss of income seem reasonable. Attorney's fees and
expenses of litigation is also proper. Since the act complained of
falls under the aegis of quasi-delict (culpa aquiliana), moral
damages is likewise available to plaintiffs pursuant to Article
2219 also of the New Civil Code" (Rollo, pp. 113-114). cdll
In addition, moral damages may be recovered if they are the
proximate results of defendant's wrongful acts or omission as in
this case (Banson vs. CA, 175 SCRA 297 [1989]).
WHEREFORE, the petition is DENIED and the Decision of the
Court of Appeals is AFFIRMED, with costs against petitioners.

The reason for this entrenched principle is given in Chemplex SO ORDERED.

(Phils.), Inc., et al. v. Ramon C. Pamatian, et al, 57 SCRA 408
[1974], thus: Cruz, Davide, Jr. and Bellosillo, JJ ., concur.

"This Court is not a trier of facts, and it is beyond its function to Griño-Aquino, J ., is on leave.
make its own findings of certain vital facts different from those
of the trial court, especially on the basis of the conflicting claims
of the parties and without the evidence being properly before it.
For this Court to make such factual conclusions is entirely
unjustified — first, because if material facts are controverted, as
in this case, and they are issues being litigated before the lower
court, the petition for certiorari would not be in aid of the
appellate jurisdiction of this Court; and, secondly, because it
preempts the primary function of the lower court, namely, to try
the case on the merits, receive all the evidence to be presented by
the parties, and only then come to a definite decision, including
either the maintenance or the discharge of the preliminary
injunction it has issued." LLpr

Appellants, likewise, contested the awarded damages as

excessive and unsubstantiated. The trial court's findings show
otherwise, as can be gleaned from the following excerpt of its
decision:

"Plaintiffs were able to prove their injuries and submitted

evidence to show expenses for their treatment, hospitalization
and incidental disbursement (Exhs. AA to HH and their
submarkings), having a total amount of P12,204.86 which had
admittedly (sic) shouldered by plaintiff Ernesto Ramos.
Considering the nature of the injuries as shown by the respective