G.R. No.

L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David
Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island
in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may
be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of
the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15
years of age, the son of a mechanical engineer, more mature than the average boy of his age, and
having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The visit was made on
a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in
the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating
caps scattered on the ground. These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires by means of which it may be
discharged by the use of electricity. They are intended for use in the explosion of blasting
charges of dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys picked up all
they could find, hung them on stick, of which each took end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all
three went to the home of the boy Manuel. The boys then made a series of experiments with the
caps. They trust the ends of the wires into an electric light socket and obtained no result. They
next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not
find one. Then they opened one of the caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became
frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned
and wounded, and David was struck in the face by several particles of the metal capsule, one of
which injured his right eye to such an extent as to the necessitate its removal by the surgeons
who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the
defendant's premises, nor how long they had been there when the boys found them. It appears,
however, that some months before the accident, during the construction of the defendant's plant,
detonating caps of the same size and kind as those found by the boys were used in sinking a well
at the power plant near the place where the caps were found; and it also appears that at or about
the time when these caps were found, similarly caps were in use in the construction of an
extension of defendant's street car line to Fort William McKinley. The caps when found
appeared to the boys who picked them up to have been lying for a considerable time, and from
the place where they were found would seem to have been discarded as detective or worthless
and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent
visitors from entering and walking about its premises unattended, when they felt disposed so to
do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play
sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the
uninclosed premises of the defendant, in the neighborhood of the place where the caps were
found. There is evidence that any effort ever was made to forbid these children from visiting the
defendant company's premises, although it must be assumed that the company or its employees
were aware of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing
and mechanical engineering. About a month after his accident he obtained employment as a
mechanical draftsman and continued in that employment for six months at a salary of P2.50 a
day; and it appears that he was a boy of more than average intelligence, taller and more mature
both mentally and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by
the evidence of record, and are substantially admitted by counsel. The only questions of fact
which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff
on defendant company's premises were the property of the defendant, or that they had come from
its possession and control, and that the company or some of its employees left them exposed on
its premises at the point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however,
that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this
regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively,
on the McKinley extension of the defendant company's track; that some of these caps were used
in blasting a well on the company's premises a few months before the accident; that not far from
the place where the caps were found the company has a storehouse for the materials, supplies
and so forth, used by it in its operations as a street railway and a purveyor of electric light; and
that the place, in the neighborhood of which the caps were found, was being used by the
company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for
the discharge by electricity of blasting charges by dynamite are not articles in common use by
the average citizen, and under all the circumstances, and in the absence of all evidence to the
contrary, we think that the discovery of twenty or thirty of these caps at the place where they
were found by the plaintiff on defendant's premises fairly justifies the inference that the
defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a
finding that the company or some of its employees either willfully or through an oversight left
them exposed at a point on its premises which the general public, including children at play,
where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively
proven, however, that while the workman employed in blasting the well was regularly employed
by J. G. White and Co., a firm of contractors, he did the work on the well directly and
immediately under the supervision and control of one of defendant company's foremen, and there
is no proof whatever in the record that the blasting on the McKinley extension was done by
independent contractors. Only one witness testified upon this point, and while he stated that he
understood that a part of this work was done by contract, he could not say so of his own
knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the
relations of the alleged contractor to the defendant company. The fact having been proven that
detonating caps were more or less extensively employed on work done by the defendant
company's directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference
that it was the owner of the material used in these operations and that it was responsible for
tortious or negligent acts of the agents employed therein, on the ground that this work had been
intrusted to independent contractors as to whose acts the maxim respondent superior should not
be applied. If the company did not in fact own or make use of caps such as those found on its
premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the
absence of such proof we think that the other evidence in the record sufficiently establishes the
contrary, and justifies the court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by the company or some of its
employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor,
upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and
1908 of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit
acts and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages

caused by their employees in the service of the branches in which the latter may be
employed or on account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence,
and for kindling of explosive substances which may not have been placed in a safe and
proper place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions
of these articles, and since we agree with this view of the case, it is not necessary for us to
consider the various questions as to form and the right of action (analogous to those raised in the
case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be
involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order
to establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.

It is clear that the accident could not have happened and not the fulminating caps been left
exposed at the point where they were found, or if their owner had exercised due care in keeping
them in an appropriate place; but it is equally clear that plaintiff would not have been injured had
he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled
around thereon without the express permission of the defendant, and had he not picked up and
carried away the property of the defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry
upon defendant company's premises, and the intervention of his action between the negligent act
of defendant in leaving the caps exposed on its premises and the accident which resulted in his
injury should not be held to have contributed in any wise to the accident, which should be
deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place
where they were found by the plaintiff, and this latter the proximate cause of the accident which
occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the
courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable"
cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an
injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where such infant found upon the
premises a dangerous machine, such as a turntable, left in such condition as to make it probable
that children in playing with it would be exposed to accident or injury therefrom and where the
infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question
was whether a railroad company was liable for in injury received by an infant while upon its
premises, from idle curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the principles on which these
cases turn are that "while a railroad company is not bound to the same degree of care in regard to
mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it
is not exempt from responsibility to such strangers for injuries arising from its negligence or
from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by
the same rule which governs that of adult. While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in regard to an infant of tender years.
The care and caution required of a child is according to his maturity and capacity only, and this
is to be determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held,
in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon
for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this
rule exists in favor of children who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross the premises of another can
not be predicated on the mere fact that no steps have been taken to interfere with such practice;
(4) that there is no difference between children and adults as to the circumstances that will
warrant the inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by
the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and
perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B.,
29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad
Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and
reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both English and American, formally
declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express permission or invitation, and while
there, was by accident injured by falling into a burning slack pile of whose existence he had no
knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and protection while on the premises in question,
against the unseen danger referred to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved
to the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser,
the defendant company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the
case now before us, they require us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could
have forbidden all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age,
to visit its mine, and witness its operation. It knew that the usual approach to the mine
was by a narrow path skirting its slack pit, close to its depot building, at which the people
of the village, old and young, would often assemble. It knew that children were in the
habit of frequenting that locality and playing around the shaft house in the immediate
vicinity of the slack pit. The slightest regard for the safety of these children would have
suggested that they were in danger from being so near a pit, beneath the surface of which
was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into
which a child might accidentally fall and be burned to death. Under all the circumstances,
the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps,
baited with flesh, in his own ground, so near to a highway, or to the premises of another,
that dogs passing along the highway, or kept in his neighbors premises, would probably
be attracted by their instinct into the traps, and in consequence of such act his neighbor's
dogs be so attracted and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal
into the trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is there between
an express license to the children of this village to visit the defendant's coal mine, in the
vicinity of its slack pile, and an implied license, resulting from the habit of the defendant
to permit them, without objection or warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on
the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous
rule of law that would make the owner of land liable for setting a trap thereon, baited
with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run
into it and be killed, and which would exempt him from liability for the consequence of
 leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's
child attracted to it and tempted to intermeddle with it by instincts equally strong, might
thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of
Powers vs. Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and
impulses; and others who are chargeable with a duty of care and caution toward them
must calculate upon this, and take precautions accordingly. If they leave exposed to the
observation of children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation
to visit the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license
might sometimes arise when it would not on behalf of others. Thus leaving a tempting
thing for children to play with exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one
were to throw away upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of
Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children
here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by
the restless spirit of youth, boys here as well as there will usually be found whenever the public
is permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as
does the magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or upon which
the public are expressly or impliedly permitted to enter or upon which the owner knows or ought
to know children are likely to roam about for pastime and in play, " must calculate upon this, and
take precautions accordingly." In such cases the owner of the premises can not be heard to say
that because the child has entered upon his premises without his express permission he is a
trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take
reasonable precautions to prevent the child from entering his premises at a place where he knows
or ought to know that children are accustomed to roam about of to which their childish instincts
and impulses are likely to attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure to take reasonable
precautions to guard the child against injury from unknown or unseen dangers, placed upon such
premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured,
without other fault on its part than that it had entered on the premises of a stranger without his
express invitation or permission. To hold otherwise would be expose all the children in the
community to unknown perils and unnecessary danger at the whim of the owners or occupants of
land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases — a point which
we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for
injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable
to the negligence of the defendant, we are of opinion that under all the circumstances of this case
the negligence of the defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the defendant," and, on the other hand, we are
satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents
was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff,
and that the defendant, therefore is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of
plaintiff's youth the intervention of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion which resulted in his injury should
not be held to have contributed in any wise to the accident; and it is because we can not agree
with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that
we have thought proper to discuss and to consider that doctrine at length in this decision. As was
said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult
that to entitle him to recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case." As we think we
have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases,
no fault which would relieve defendant of responsibility for injuries resulting from its negligence
can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon
defendant's uninclosed premises without express permission or invitation' but it is wholly
different question whether such youth can be said to have been free from fault when he willfully
and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the doctrine laid down in the Turntable
and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record discloses that
the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or character of the explosive
instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of
himself. The evidence of record leaves no room for doubt that, despite his denials on the witness
stand, he well knew the explosive character of the cap with which he was amusing himself. The
series of experiments made by him in his attempt to produce an explosion, as described by the
little girl who was present, admit of no other explanation. His attempt to discharge the cap by the
use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final
success of his endeavors brought about by the application of a match to the contents of the caps,
show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had
reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9
years of age, who was within him at the time when he put the match to the contents of the cap,
became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion
which might be expected from the ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say that "according to his maturity
and capacity" he exercised such and "care and caution" as might reasonably be required of him,
or that defendant or anyone else should be held civilly responsible for injuries incurred by him
under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand
the character of his own acts and their consequences; and the age at which a minor can be said to
have such ability will necessarily depends of his own acts and their consequences; and at the age
at which a minor can be said to have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by him. But some idea of the
presumed capacity of infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are conclusively presumed to
be capable of exercising certain rights and incurring certain responsibilities, though it can not be
said that these provisions of law are of much practical assistance in cases such as that at bar,
except so far as they illustrate the rule that the capacity of a minor to become responsible for his
own acts varies with the varying circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to
held criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id.,
sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females
of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided
the injury which resulted from his own deliberate act; and that the injury incurred by him must
be held to have been the direct and immediate result of his own willful and reckless act, so that
while it may be true that these injuries would not have been incurred but for the negligence act of
the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was
the proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5,
Partida 3.)

And they even said that when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the
law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed
upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar
the right to recover damages from the defendant, in whole or in part, for the injuries sustained by
him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil,
391), is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence
is a source of obligation when between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced should not be the result of acts or
omissions of a third party, the latter has no obligation to repair the same, although such
 acts or omission were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his
Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person, there is no obligation
to make good upon the latter, even though such acts or omissions be imprudent or illegal,
and much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of the person who is to
be charged with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the
act or omission and the damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the damages result
immediately and directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela,
Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely
settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co.
(supra), wherein we held that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the
casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain
"define the effect to be given the negligence of its causes, though not the principal one, and we
are left to seek the theory of the civil law in the practice of other countries;" and in such cases we
declared that law in this jurisdiction to require the application of "the principle of proportional
damages," but expressly and definitely denied the right of recovery when the acts of the injured
party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event itself, without which there
could have been no accident, and those acts of the victim not entering into it, independent
of it, but contributing to his own proper hurt. For instance, the cause of the accident under
review was the displacement of the crosspiece or the failure to replace it. This produces
the event giving occasion for damages—that is, the sinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did
not contribute, although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act or omission of duty, that
would have been one of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match
to the contents of the cap, and that having "contributed to the principal occurrence, as one of its
determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of
these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of responsibility, but whether in view of
the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered
trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up
the caps in question under all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.

G.R. No. L-35283 November 5, 1932

JULIAN DEL ROSARIO, plaintiff-appellant,
vs.
MANILA ELECTRIC COMPANY, defendant-appellee.

Vicente Sotto for appellant.

Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee.

STREET, J.:

This action was instituted by Julian del Rosario for the purpose of recovering damages from the
Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a shock
from a wire used by the defendant for the transmission of electricity. The accident occurred on
Dimas-Alang Street, in the municipality of Caloocan, Province of Rizal. Damages are claimed in
the complaint in the amount of P30,000. Upon hearing the cause the trial court absolved the
defendant, and the plaintiff appealed.

Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by
the defendant on Dimas-Alang Street for the purpose of conducting electricity used in lighting
the City of Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby, first
noticed that the wire was burning and its connections smoking. In a short while the wire parted
and one of the ends of the wire fell to the ground among some shrubbery close to the way. As
soon as Noguera took cognizance of the trouble, he stepped into a garage which was located
nearby and asked Jose Soco, the timekeeper, to telephone the Malabon station of the Manila
Electric Company that an electrical wire was burning at that place. Soco transmitted the message
at 2.25 p.m. and received answer from the station to the effect that they would send an inspector.
From the testimony of the two witnesses mentioned we are justified in the conclusion that
information to the effect that the electric wire at the point mentioned had developed trouble was
received by the company's servant at the time stated. At the time that message was sent the wire
had not yet parted, but from the testimony of Demetrio Bingao, one of the witnesses for the
defense, it is clear that the end of the wire was on the ground shortly after 3 p.m.

At 4 p. m. the neighborhood school was dismissed and the children went home. Among these
was Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all
members of the second grade in the public school. These other two boys were Jose Salvador, of
the age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the
wire was down, Saturnino made a motion as if it touch it. His companion, Jose Salvador,
happened to be the son of an electrician and his father had cautioned him never to touch a broken
electrical wire, as it might have a current. Jose therefore stopped Saturnino, telling him that the
wire might be charged. Saturnino yielded to this admonition and desisted from his design, but
Alberto del Rosario, who was somewhat ahead, said, I have for some time been in the habit of
touching wires ("Yo desde hace tiempo cojo alambres"). Jose Salvador rejoined that he should
into touch wires as they carry a current, but Alberto, no doubt feeling that he was challenged in
the matter, put out his index finger and touch the wire. He immediately fell face downwards,
exclaiming "Ay! madre". The end of the wire remained in contact with his body which fell near
the post. A crowd soon collected, and some one cut the wire and disengaged the body. Upon
being taken to St. Luke's Hospital the child was pronounced dead.

The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by
the defendant company for the purpose of conducting electricity for lighting. The wire was cased
in the usual covering, but this had been burned off for some distance from the point where the
wire parted. The engineer of the company says that it was customary for the company to make a
special inspection of these wires at least once in six months, and that all of the company's
inspectors were required in their daily rounds to keep a lookout for trouble of this kind. There is
nothing in the record indicating any particular cause for the parting of the wire.lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the
breakage of this wire has not been overcome, and the defendant is in our opinion responsible for
the accident. Furthermore, when notice was received at the Malabon station at 2.25 p. m.,
somebody should have been dispatched to the scene of the trouble at once, or other measures
taken to guard the point of danger; but more than an hour and a half passed before anyone
representing the company appeared on the scene, and in the meantime this child had been
claimed as a victim.

It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to
his immature years and the natural curiosity which a child would feel to do something out of the
ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8
years does not, in our opinion, alter the case. But even supposing that contributory negligence
could in some measure be properly imputed to the deceased, — a proposition upon which the
members of the court do not all agree, — yet such negligence would not be wholly fatal to the
right of action in this case, not having been the determining cause of the accident. (Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil., 359.)

With respect to the amount of damages recoverable the majority of the members of this court are
of the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection
with the death and burial of the boy. For the rest, in accordance with the precedents cited in
Astudillo vs. Manila Electric Company (55 Phil., 427), the majority of the court are of the
opinion that the plaintiff should recover the sum of P1,000 as general damages for loss of
service.

The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant
the sum of P1,250, with costs of both instances. So ordered.

Avanceña, C.J., Malcolm, Ostrand, Villa-Real, Vickers, Imperial and Butte, JJ., concur.

Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:

I concur in so far as the defendant company is held liable for the death of the plaintiff's son, but I
dissent in so far as the decision allows the plaintiff to recover of the defendant the sum of P1,250
only.

It is well settled in this jurisdiction that an action will lie to recover damages for death caused by
the wrongful act. (Manzanares vs. Moreta, 38 Phil., 821.) The question, however, arises as to the
amount of damages recoverable in this case. In criminal cases, this court has adopted the rule of
allowing, as a matter of course, the sum of P1,000 as indemnity to the heirs of the deceased.
Following that rule, the court has allowed the plaintiff in this case to recover the sum of P1,000
as general damages for loss of service. Whatever may be the reasons for the rule followed in
criminal cases, I am of the opinion that those reasons do not obtain in fixing the amount of the
damages recoverable in the present case. The indemnity allowed in criminal case is merely
incidental to the main object sought, which is the punishment of the guilty party. In a civil action,
the principal object is the recovery of damages for wrongful death; and where, as in this case, the
defendant is a corporation, not subject to criminal prosecution for the act complained of, the
question assumes a vastly different aspect. Both in reason and in justice, there should be a
distinction between the civil liability of an ordinary person who, by wrongful act, has caused the
death of another; and the civil liability of a corporation, organized primarily for profit, which has
caused the death of a person by failure to exercise due care in the prosecution of its business. The
liability of such a corporation for damages must be regarded as a part of the risks which it
assumes when it undertakes to promote its own business; and just as it is entitled to earn
adequate profits from its business, so it should be made adequately to compensate those who
have suffered damage by its negligence.

Considering the circumstances of this case, I am of the opinion that the plaintiff should recover
the sum of P2,250 as damages.

G.R. No. L-32611 November 3, 1930

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

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.

Benj. S. Ohnick for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish &
Electric Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum
of P11,350, with interest and costs. Upon hearing the cause the trial court gave judgment in favor
of the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per
annum from March 24,1927, the date of the filing of the complaint, until satisfaction of the
judgment, with costs. From this judgment the defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which
we are here concerned, H.D. Cranston was the representative of the plaintiff in the City of
Manila. At the same time the plaintiff was the registered owner of the motor schooner
Gwendoline, which was used in the fishing trade in the Philippine Islands. In January, 1925,
Cranston decided, if practicable, to have the engine on the Gwendoline changed from a gasoline
consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the
boat. He therefore made known his desire to McLeod & Co., a firm dealing in tractors, and was
told by Mc Kellar, of said company, that he might make inquiries of the Philippine Motors
Corporations, which had its office on Ongpin Street, in the City of Manila. Cranston accordingly
repaired to the office of the Philippine Motors Corporation and had a conference with C.E.
Quest, its manager, who agreed to do the job, with the understanding that payment should be
made upon completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile
agency, but, under its charter, it had authority to deal in all sorts of machinery engines and
motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest, as
general manager, had full charge of the corporations in all its branches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline
while it lay at anchor in the Pasig River, and the work of effecting the change in the engine was
begun and conducted under the supervision of Quest, chiefly by a mechanic whom Quest took
with him to the boat. In this work Quest had the assistance of the members of the crew of the
Gwendoline, who had been directed by Cranston to place themselves under Quest's directions.

Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor
was chosen as the one most adapted to the purpose. After this appliance had been installed, the
engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the carburetor the baser
fuel, consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to
contain the mixture was placed on deck above and at a short distance from the compartment
covering the engine. This tank was connected with the carburetor by a piece of tubing, which
was apparently not well fitted at the point where it was connected with the tank. Owing to this
fact the fuel mixture leaked from the tank and dripped sown into the engine compartment. The
new fuel line and that already in use between the gasoline tank and carburetor were so fixed that
it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this
arrangement was to enable the operator to start the engine on gasoline and then, after the engine
had been operating for a few moments, to switch to the new fuel supply. lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed
that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the
lower part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared
to think lightly of the matter and said that, when the engine had gotten to running well, the
flooding would disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the
bay for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first
part of the course was covered without any untoward development, other than he fact that the
engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the
course of the trial Quest remained outside of the engine compartment and occupied himself with
making distillate, with a view to ascertaining what proportion of the two elements would give
best results in the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the
engine stopped, and connection again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to the tube connecting with the new
mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with
a mass of flames, which the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was safely effected, but 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 occured, as the court found, was
P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was
apparently at too great an elevation from the carburetor, with the result that when the fuel line
was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor, already
saturated with gasoline, burst into flames, whence the fire was quickly communicated to the
highly inflammable material near-by. Ordinarily a back fire from an engine would not be
followed by any disaster, but in this case the leak along the pipe line and the flooding of the
carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this
nature, would have taken precautions to avoid. The back fire may have been due either to the fact
that the spark was too advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being
competent to do things requiring professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was experienced in the doing of similar
work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and
the flooding of the carburetor did not convey to his mind an adequate impression of the danger of
fire. But a person skilled in that particular sort of work would, we think have been sufficiently
warned from those circumstances to cause him to take greater and adequate precautions against
the danger. In other words Quest did not use the skill that would have been exhibited by one
ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not have occured but for Quest's
carelessness or lack of skill. The test of liability is not whether the injury was accidental in a
sense, but whether Quest was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest undertook to accomplish; and even supposing
that our theory as to the exact manner in which the accident occurred might appear to be in some
respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it was
casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the
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
the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee acquires possession
and what is usually spoken of as special property in the chattel bailed. As a consequence of such
possession and special property, the bailee is given a lien for his compensation. These ideas seem
to be incompatible with the situation now under consideration. But though defendant cannot be
held liable in the supposition that the burden of proof had not been sustained by it in disproving
the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had occured, and after
Quest had ceased to be manager of the defendant corporation and had gone back to the United
States. Upon these facts, the defendant bases the contention that the action should be considered
stale. It is sufficient reply to say that the action was brought within the period limited by the
statute of limitations and the situation is not one where the defense of laches can be properly
invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of
P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.

Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. COURT OF

APPEALS and BENJAMIN C. NAPIZA, respondents.

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review on certiorari of the Decision1[1] of the Court of Appeals in CA-
G.R. CV No. 37392 affirming in toto that of the Regional Trial Court of Makati, Branch
139,2[2] which dismissed the complaint filed by petitioner Bank of the Philippine Islands
against private respondent Benjamin C. Napiza for sum of money. Sdaad

On September 3, 1987, private respondent deposited in Foreign Currency Deposit Unit

(FCDU) Savings Account No. 028-1873[3] which he maintained in petitioner banks
Buendia Avenue Extension Branch, Continental Bank Managers Check No.
000147574[4] dated August 17, 1984, payable to "cash" in the amount of Two Thousand
Five Hundred Dollars ($2,500.00) and duly endorsed by private respondent on its dorsal
side.5[5] It appears that the check belonged to a certain Henry Chan who went to the
office of private respondent and requested him to deposit the check in his dollar account
by way of accommodation and for the purpose of clearing the same. Private respondent
acceded, and agreed to deliver to Chan a signed blank withdrawal slip, with the
understanding that as soon as the check is cleared, both of them would go to the bank
to withdraw the amount of the check upon private respondents presentation to the bank
of his passbook.

Using the blank withdrawal slip given by private respondent to Chan, on October 23,
1984, one Ruben Gayon, Jr. was able to withdraw the amount of $2,541.67 from FCDU
Savings Account No. 028-187. Notably, the withdrawal slip shows that the amount was
payable to Ramon A. de Guzman and Agnes C. de Guzman and was duly initialed by
the branch assistant manager, Teresita Lindo.6[6]
On November 20, 1984, petitioner received communication from the Wells Fargo Bank
International of New York that the said check deposited by private respondent was a
counterfeit check7[7] because it was "not of the type or style of checks issued by
Continental Bank International."8[8] Consequently, Mr. Ariel Reyes, the manager of
petitioners Buendia Avenue Extension Branch, instructed one of its employees,
Benjamin D. Napiza IV, who is private respondents son, to inform his father that the
check bounced.9[9] Reyes himself sent a telegram to private respondent regarding the
dishonor of the check. In turn, private respondents son wrote to Reyes stating that the
check had been assigned "for encashment" to Ramon A. de Guzman and/or Agnes C.
de Guzman after it shall have been cleared upon instruction of Chan. He also said that
upon learning of the dishonor of the check, his father immediately tried to contact Chan
but the latter was out of town.10[10]

Private respondents son undertook to return the amount of $2,500.00 to petitioner bank.
On December 18, 1984, Reyes reminded private respondent of his sons promise and
warned that should he fail to return that amount within seven (7) days, the matter would
be referred to the banks lawyers for appropriate action to protect the banks interest.11[11]
This was followed by a letter of the banks lawyer dated April 8, 1985 demanding the
return of the $2,500.00.12[12]

In reply, private respondent wrote petitioners counsel on April 20, 198513[13] stating that
he deposited the check "for clearing purposes" only to accommodate Chan. He added:
 "Further, please take notice that said check was deposited on September
3, 1984 and withdrawn on October 23, 1984, or a total period of fifty (50)
days had elapsed at the time of withdrawal. Also, it may not be amiss to
mention here that I merely signed an authority to withdraw said deposit
subject to its clearing, the reason why the transaction is not reflected in
the passbook of the account. Besides, I did not receive its proceeds as
may be gleaned from the withdrawal slip under the captioned signature of
recipient.

If at all, my obligation on the transaction is moral in nature, which (sic) I

have been and is (sic) still exerting utmost and maximum efforts to collect
from Mr. Henry Chan who is directly liable under the circumstances. Scsdaad

xxx......xxx......xxx."

On August 12, 1986, petitioner filed a complaint against private respondent, praying for
the return of the amount of $2,500.00 or the prevailing peso equivalent plus legal
interest from date of demand to date of full payment, a sum equivalent to 20% of the
total amount due as attorney's fees, and litigation and/or costs of suit.

Private respondent filed his answer, admitting that he indeed signed a "blank"
withdrawal slip with the understanding that the amount deposited would be withdrawn
only after the check in question has been cleared. He likewise alleged that he instructed
the party to whom he issued the signed blank withdrawal slip to return it to him after the
bank drafts clearance so that he could lend that party his passbook for the purpose of
withdrawing the amount of $2,500.00. However, without his knowledge, said party was
able to withdraw the amount of $2,541.67 from his dollar savings account through
collusion with one of petitioners employees. Private respondent added that he had
"given the Plaintiff fifty one (51) days with which to clear the bank draft in question."
Petitioner should have disallowed the withdrawal because his passbook was not
presented. He claimed that petitioner had no one to blame except itself "for being
grossly negligent;" in fact, it had allegedly admitted having paid the amount in the check
"by mistake" x x x "if not altogether due to collusion and/or bad faith on the part of (its)
employees." Charging petitioner with "apparent ignorance of routine bank procedures,"
by way of counterclaim, private respondent prayed for moral damages of P100,000.00,
exemplary damages of P50,000.00 and attorneys fees of 30% of whatever amount that
would be awarded to him plus an honorarium of P500.00 per appearance in court.

Private respondent also filed a motion for admission of a third party complaint against
Chan. He alleged that "thru strategem and/or manipulation," Chan was able to withdraw
the amount of $2,500.00 even without private respondents passbook. Thus, private
respondent prayed that third party defendant Chan be made to refund to him the
amount withdrawn and to pay attorneys fees of P5,000.00 plus P300.00 honorarium per
appearance.
Petitioner filed a comment on the motion for leave of court to admit the third party
complaint, wherein it asserted that per paragraph 2 of the Rules and Regulations
governing BPI savings accounts, private respondent alone was liable "for the value of
the credit given on account of the draft or check deposited." It contended that private
respondent was estopped from disclaiming liability because he himself authorized the
withdrawal of the amount by signing the withdrawal slip. Petitioner prayed for the denial
of the said motion so as not to unduly delay the disposition of the main case asserting
that private respondents claim could be ventilated in another case.

Private respondent replied that for the parties to obtain complete relief and to avoid
multiplicity of suits, the motion to admit third party complaint should be granted.
Meanwhile, the trial court issued orders on August 25, 1987 and October 28, 1987
directing private respondent to actively participate in locating Chan. After private
respondent failed to comply, the trial court, on May 18, 1988, dismissed the third party
complaint without prejudice.

On November 4, 1991, a decision was rendered dismissing the complaint. The lower
court held that petitioner could not hold private respondent liable based on the checks
face value alone. To so hold him liable "would render inutile the requirement of
clearance from the drawee bank before the value of a particular foreign check or draft
can be credited to the account of a depositor making such deposit." The lower court
further held that "it was incumbent upon the petitioner to credit the value of the check in
question to the account of the private respondent only upon receipt of the notice of final
payment and should not have authorized the withdrawal from the latters account of the
value or proceeds of the check." Having admitted that it committed a "mistake" in not
waiting for the clearance of the check before authorizing the withdrawal of its value or
proceeds, petitioner should suffer the resultant loss. Supremax

On appeal, the Court of Appeals affirmed the lower courts decision. The appellate court
held that petitioner committed "clear gross negligence" in allowing Ruben Gayon, Jr. to
withdraw the money without presenting private respondents passbook and, before the
check was cleared and in crediting the amount indicated therein in private respondents
account. It stressed that the mere deposit of a check in private respondents account did
not mean that the check was already private respondents property. The check still had
to be cleared and its proceeds can only be withdrawn upon presentation of a passbook
in accordance with the banks rules and regulations. Furthermore, petitioners contention
that private respondent warranted the checks genuineness by endorsing it is untenable
for it would render useless the clearance requirement. Likewise, the requirement of
presentation of a passbook to ascertain the propriety of the accounting reflected would
be a meaningless exercise. After all, these requirements are designed to protect the
bank from deception or fraud.

The Court of Appeals cited the case of Roman Catholic Bishop of Malolos, Inc. v.
IAC,14[14] where this Court stated that a personal check is not legal tender or money, and
held that the check deposited in this case must be cleared before its value could be
properly transferred to private respondent's account.

Without filing a motion for the reconsideration of the Court of Appeals Decision,
petitioner filed this petition for review on certiorari, raising the following issues:

1.......WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER

HIS WARRANTIES AS A GENERAL INDORSER.

2.......WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED

BETWEEN RESPONDENT NAPIZA AND RUBEN GAYON.

3.......WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT

IN ALLOWING THE WITHDRAWAL.

Petitioner claims that private respondent, having affixed his signature at the dorsal side
of the check, should be liable for the amount stated therein in accordance with the
following provision of the Negotiable Instruments Law (Act No. 2031):

"SEC. 66. Liability of general indorser. Every indorser who indorses

without qualification, warrants to all subsequent holders in due course

(a)......The matters and things mentioned in subdivisions (a), (b), and (c) of
the next preceding section; and

(b)......That the instrument is at the time of his indorsement, valid and

subsisting.

And, in addition, he engages that on due presentment, it shall be accepted

or paid, or both, as the case may be, according to its tenor, and that if it be
dishonored, and the necessary proceedings on dishonor be duly taken, he
will pay the amount thereof to the holder, or to any subsequent indorser
who may be compelled to pay it."

Section 65, on the other hand, provides for the following warranties of a person
negotiating an instrument by delivery or by qualified indorsement: (a) that the instrument
is genuine and in all respects what it purports to be; (b) that he has a good title to it, and
(c) that all prior parties had capacity to contract.15[15] In People v. Maniego,16[16] this
Court described the liabilities of an indorser as follows: Juris

"Appellants contention that as mere indorser, she may not be liable on

account of the dishonor of the checks indorsed by her, is likewise
untenable. Under the law, the holder or last indorsee of a negotiable
instrument has the right to enforce payment of the instrument for the full
amount thereof against all parties liable thereon. Among the parties liable
thereon is an indorser of the instrument, i.e., a person placing his
signature upon an instrument otherwise than as a maker, drawer or
acceptor * * unless he clearly indicated by appropriate words his intention
to be bound in some other capacity. Such an indorser who indorses
without qualification, inter alia engages that on due presentment, * * (the
instrument) shall be accepted or paid, or both, as the case may be,
according to its tenor, and that if it be dishonored, and the necessary
proceedings on dishonor be duly taken, he will pay the amount thereof to
the holder, or any subsequent indorser who may be compelled to pay it.
Maniego may also be deemed an accommodation party in the light of the
facts, i.e., a person who has signed the instrument as maker, drawer,
acceptor, or indorser, without receiving value therefor, and for the purpose
of lending his name to some other person. As such, she is under the law
liable on the instrument to a holder for value, notwithstanding such holder
at the time of taking the instrument knew * * (her) to be only an
accommodation party, although she has the right, after paying the holder,
to obtain reimbursement from the party accommodated, since the relation
between them is in effect that of principal and surety, the accommodation
party being the surety."

It is thus clear that ordinarily private respondent may be held liable as an indorser of the
check or even as an accommodation party.17[17] However, to hold private respondent
liable for the amount of the check he deposited by the strict application of the law and
without considering the attending circumstances in the case would result in an injustice
and in the erosion of the public trust in the banking system. The interest of justice thus
demands looking into the events that led to the encashment of the check.
Petitioner asserts that by signing the withdrawal slip, private respondent "presented the
opportunity for the withdrawal of the amount in question." Petitioner relied "on the
genuine signature on the withdrawal slip, the personality of private respondents son and
the lapse of more than fifty (50) days from date of deposit of the Continental Bank draft,
without the same being returned yet."18[18] We hold, however, that the propriety of the
withdrawal should be gauged by compliance with the rules thereon that both petitioner
bank and its depositors are duty-bound to observe.

In the passbook that petitioner issued to private respondent, the following rules on
withdrawal of deposits appear:

"4.......Withdrawals must be made by the depositor personally but in some

exceptional circumstances, the Bank may allow withdrawal by another
upon the depositors written authority duly authenticated; and neither a
deposit nor a withdrawal will be permitted except upon the presentation of
the depositors savings passbook, in which the amount deposited
withdrawn shall be entered only by the Bank.

5.......Withdrawals may be made by draft, mail or telegraphic transfer in

currency of the account at the request of the depositor in writing on the
withdrawal slip or by authenticated cable. Such request must indicate the
name of the payee/s, amount and the place where the funds are to be
paid. Any stamp, transmission and other charges related to such
withdrawals shall be for the account of the depositor and shall be paid by
him/her upon demand. Withdrawals may also be made in the form of
travellers checks and in pesos. Withdrawals in the form of notes/bills are
allowed subject however, to their (availability).

6.......Deposits shall not be subject to withdrawal by check, and may be

withdrawn only in the manner above provided, upon presentation of the
depositors savings passbook and with the withdrawal form supplied by the
Bank at the counter."19[19] Scjuris

Under these rules, to be able to withdraw from the savings account deposit under the
Philippine foreign currency deposit system, two requisites must be presented to
petitioner bank by the person withdrawing an amount: (a) a duly filled-up withdrawal
slip, and (b) the depositors passbook. Private respondent admits that he signed a blank
withdrawal slip ostensibly in violation of Rule No. 6 requiring that the request for
withdrawal must name the payee, the amount to be withdrawn and the place where
such withdrawal should be made. That the withdrawal slip was in fact a blank one with
only private respondents two signatures affixed on the proper spaces is buttressed by
petitioners allegation in the instant petition that had private respondent indicated therein
the person authorized to receive the money, then Ruben Gayon, Jr. could not have
withdrawn any amount. Petitioner contends that "(i)n failing to do so (i.e., naming his
authorized agent), he practically authorized any possessor thereof to write any amount
and to collect the same."20[20]

Such contention would have been valid if not for the fact that the withdrawal slip itself
indicates a special instruction that the amount is payable to "Ramon A. de Guzman &/or
Agnes C. de Guzman." Such being the case, petitioners personnel should have been
duly warned that Gayon, who was also employed in petitioners Buendia Ave. Extension
branch,21[21] was not the proper payee of the proceeds of the check. Otherwise, either
Ramon or Agnes de Guzman should have issued another authority to Gayon for such
withdrawal. Of course, at the dorsal side of the withdrawal slip is an "authority to
withdraw" naming Gayon the person who can withdraw the amount indicated in the
check. Private respondent does not deny having signed such authority. However,
considering petitioners clear admission that the withdrawal slip was a blank one except
for private respondents signature, the unavoidable conclusion is that the typewritten
name of "Ruben C. Gayon, Jr." was intercalated and thereafter it was signed by Gayon
or whoever was allowed by petitioner to withdraw the amount. Under these facts, there
could not have been a principal-agent relationship between private respondent and
Gayon so as to render the former liable for the amount withdrawn.

Moreover, the withdrawal slip contains a boxed warning that states: "This receipt must
be signed and presented with the corresponding foreign currency savings passbook by
the depositor in person. For withdrawals thru a representative, depositor should
accomplish the authority at the back." The requirement of presentation of the passbook
when withdrawing an amount cannot be given mere lip service even though the person
making the withdrawal is authorized by the depositor to do so. This is clear from Rule
No. 6 set out by petitioner so that, for the protection of the banks interest and as a
reminder to the depositor, the withdrawal shall be entered in the depositors passbook.
The fact that private respondents passbook was not presented during the withdrawal is
evidenced by the entries therein showing that the last transaction that he made with the
bank was on September 3, 1984, the date he deposited the controversial check in the
amount of $2,500.00.22[22]
In allowing the withdrawal, petitioner likewise overlooked another rule that is printed in
the passbook. Thus:

"2.......All deposits will be received as current funds and will be repaid in

the same manner; provided, however, that deposits of drafts, checks,
money orders, etc. will be accepted as subject to collection only and
credited to the account only upon receipt of the notice of final payment.
Collection charges by the Banks foreign correspondent in effecting such
collection shall be for the account of the depositor. If the account has
sufficient balance, the collection shall be debited by the Bank against the
account. If, for any reason, the proceeds of the deposited checks, drafts,
money orders, etc., cannot be collected or if the Bank is required to return
such proceeds, the provisional entry therefor made by the Bank in the
savings passbook and its records shall be deemed automatically
cancelled regardless of the time that has elapsed, and whether or not the
defective items can be returned to the depositor; and the Bank is hereby
authorized to execute immediately the necessary corrections,
amendments or changes in its record, as well as on the savings passbook
at the first opportunity to reflect such cancellation." (Italics and underlining
supplied.) Jurissc

As correctly held by the Court of Appeals, in depositing the check in his name, private
respondent did not become the outright owner of the amount stated therein. Under the
above rule, by depositing the check with petitioner, private respondent was, in a way,
merely designating petitioner as the collecting bank. This is in consonance with the rule
that a negotiable instrument, such as a check, whether a managers check or ordinary
check, is not legal tender.23[23] As such, after receiving the deposit, under its own rules,
petitioner shall credit the amount in private respondents account or infuse value thereon
only after the drawee bank shall have paid the amount of the check or the check has
been cleared for deposit. Again, this is in accordance with ordinary banking practices
and with this Courts pronouncement that "the collecting bank or last endorser generally
suffers the loss because it has the duty to ascertain the genuineness of all prior
endorsements considering that the act of presenting the check for payment to the
drawee is an assertion that the party making the presentment has done its duty to
ascertain the genuineness of the endorsements."24[24] The rule finds more meaning in
this case where the check involved is drawn on a foreign bank and therefore collection
is more difficult than when the drawee bank is a local one even though the check in
question is a managers check.25[25] Misjuris

In Banco Atlantico v. Auditor General,26[26] Banco Atlantico, a commercial bank in

Madrid, Spain, paid the amounts represented in three (3) checks to Virginia Boncan, the
finance officer of the Philippine Embassy in Madrid. The bank did so without previously
clearing the checks with the drawee bank, the Philippine National Bank in New York, on
account of the "special treatment" that Boncan received from the personnel of Banco
Atlanticos foreign department. The Court held that the encashment of the checks
without prior clearance is "contrary to normal or ordinary banking practice specially so
where the drawee bank is a foreign bank and the amounts involved were large."
Accordingly, the Court approved the Auditor Generals denial of Banco Atlanticos claim
for payment of the value of the checks that was withdrawn by Boncan.

Said ruling brings to light the fact that the banking business is affected with public
interest. By the nature of its functions, a bank is under obligation to treat the accounts of
its depositors "with meticulous care, always having in mind the fiduciary nature of their
relationship."27[27] As such, in dealing with its depositors, a bank should exercise its
functions not only with the diligence of a good father of a family but it should do so with
the highest degree of care.28[28]

In the case at bar, petitioner, in allowing the withdrawal of private respondents deposit,
failed to exercise the diligence of a good father of a family. In total disregard of its own
rules, petitioners personnel negligently handled private respondents account to
petitioners detriment. As this Court once said on this matter:

"Negligence is the omission to do something which a reasonable man,

guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and
reasonable man would do. The seventy-eight (78)-year-old, yet still
relevant, case of Picart v. Smith, provides the test by which to determine
the existence of negligence in a particular case which may be stated as
 follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would
have used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet pater-familias 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."29[29]

Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely
over and above the aggregate amount of private respondents dollar deposits that had
yet to be cleared. The banks ledger on private respondents account shows that before
he deposited $2,500.00, private respondent had a balance of only $750.00. 30[30] Upon
private respondents deposit of $2,500.00 on September 3, 1984, that amount was
credited in his ledger as a deposit resulting in the corresponding total balance of
$3,250.00.31[31] On September 10, 1984, the amount of $600.00 and the additional
charges of $10.00 were indicated therein as withdrawn thereby leaving a balance of
$2,640.00. On September 30, 1984, an interest of $11.59 was reflected in the ledger
and on October 23, 1984, the amount of $2,541.67 was entered as withdrawn with a
balance of $109.92.32[32] On November 19, 1984 the word "hold" was written beside the
balance of $109.92.33[33] That must have been the time when Reyes, petitioners branch
manager, was informed unofficially of the fact that the check deposited was a
counterfeit, but petitioners Buendia Ave. Extension Branch received a copy of the
communication thereon from Wells Fargo Bank International in New York the following
day, November 20, 1984.34[34] According to Reyes, Wells Fargo Bank International
handled the clearing of checks drawn against U.S. banks that were deposited with
petitioner.35[35] Jjlex

From these facts on record, it is at once apparent that petitioners personnel allowed the
withdrawal of an amount bigger than the original deposit of $750.00 and the value of the
check deposited in the amount of $2,500.00 although they had not yet received notice
from the clearing bank in the United States on whether or not the check was funded.
Reyes contention that after the lapse of the 35-day period the amount of a deposited
check could be withdrawn even in the absence of a clearance thereon, otherwise it
could take a long time before a depositor could make a withdrawal, 36[36] is untenable.
Said practice amounts to a disregard of the clearance requirement of the banking
system.

While it is true that private respondents having signed a blank withdrawal slip set in
motion the events that resulted in the withdrawal and encashment of the counterfeit
check, the negligence of petitioners personnel was the proximate cause of the loss that
petitioner sustained. Proximate cause, which is determined by a mixed consideration of
logic, common sense, policy and precedent, is "that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred."37[37] The proximate cause of the
withdrawal and eventual loss of the amount of $2,500.00 on petitioners part was its
personnels negligence in allowing such withdrawal in disregard of its own rules and the
clearing requirement in the banking system. In so doing, petitioner assumed the risk of
incurring a loss on account of a forged or counterfeit foreign check and hence, it should
suffer the resulting damage.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision of the
Court of Appeals in CA-G.R. CV No. 37392 is AFFIRMED.

SO ORDERED. Newmiso

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

G.R. No. L-7760 October 1, 1914

E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.

Bruce, Lawrence, Ross & Block for defendant.

MORELAND, J.:

This is an action brought to recover damages for injuries sustained in an accident which occurred
in Caloocan on the night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the city of
Manila and its suburbs, including the municipality of Caloocan. The plaintiff's residence in
Caloocan fronts on the street along which defendant's tracks run, so that to enter his premises
from the street plaintiff is obliged to cross defendant's tracks. On the night mentioned plaintiff
drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped
forward, and fell, causing the vehicle with the rails, resulting in a sudden stop, threw plaintiff
from the vehicle and caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not
only the rails were above-ground, but that the ties upon which the rails rested projected from
one-third to one-half of their depth out of the ground, thus making the tops of the rails some 5 or
6 inches or more above the level of the street.

It is admitted that the defendant was negligent in maintaining its tracks as described, but it is
contended that the plaintiff was also negligent in that he was intoxicated to such an extent at the
time of the accident that he was unable to take care of himself properly and that such intoxication
was the primary cause of the accident.

The trial court held that both parties were negligent, but that the plaintiff's negligence was not as
great as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep.,
359) apportioned the damages and awarded plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus: "Accepting the findings of the trial court
that both plaintiff and defendant were guilty of negligence, the only question to be considered is
whether the negligence of plaintiff contributed t the 'principal occurrence' or 'only to his own
injury.' If the former, he cannot recover; if the latter, the trial court was correct in apportioning
the damages."

The questioned as stated by plaintiff is as follows: "The main question at issue is whether or not
the plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the
primary cause of the accident then, of course, he cannot recover; if his negligence had nothing to
do with the accident but contributed to his injury, then the court was right in apportioning the
damages, but if there was no negligence on the part of the plaintiff, then he should be awarded
damages adequates to the injury sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was its failure
properly to maintain the track; plaintiff's negligence was his intoxication; the 'principal
occurrence' was plaintiff's fall from his calesa. It seems clear that plaintiff's intoxication
contributed to the fall; if he had been sober, it can hardly be doubted that he would have crossed
the track safely, as he had done a hundred times before."

While both parties appealed from the decision, the defendant on the ground that it was not liable
and the plaintiff on the ground that the damages were insufficient according to the evidence, and
while the plaintiff made a motion for a new trial upon the statutory grounds and took proper
exception to the denial thereof, thus conferring upon this court jurisdiction to determine the
question of fact, nevertheless, not all of the testimony taken on the trial, so far as can be gathered
from the record, has been brought to this court. There seems to have been two hearings, one on
the 31st of August and the other on the 28th of September. The evidence taken on the first
hearing is here; that taken on the second is not. Not all the evidence taken on the hearings being
before the court, we must refuse, under our rules, to consider even that evidence which is here;
and, in the decision of this case, we are, therefore, relegated to the facts stated in the opinion of
the court and the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing
in the opinion which sustains the conclusion of the court that the plaintiff was negligent with
reference to the accident which is the basis of this action. Mere intoxication establish a want of
ordinary care. It is but a circumstance to be considered with the other evidence tending to prove
negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want
of ordinary care or prudence can be imputed to him, and no greater degree of care is required
than by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it
is immaterial whether he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H &
T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R. Co.
vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific
R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in
its opinion upon which may be predicated the finding that the plaintiff did not use ordinary care
and prudence and that the intoxication contributed to the injury complained of? After showing
clearly and forcibly the negligence of the defendant in leaving its tracks in the condition in which
they were on the night of the injury, the court has the following to say, and it is all that can be
found in its opinion, with reference to the negligence of the plaintiff: "With respect to the
condition in which Mr. Wright was on returning to his house on the night in question, the
testimony of Doctor Kneedler, who was the physician who attended him an hour after the
accident, demonstrates that he was intoxicated. . . . .

If the defendant or its employees were negligent by reason of having left the rails and a
part of the ties uncovered in a street where there is a large amount of travel, the plaintiff
was no less negligent, he not having abstained from his custom of taking more wine than
 he could carry without disturbing his judgment and his self-control, he knowing that he
had to drive a horse and wagon and to cross railroad tracks which were to a certain extent
dangerous by reason of the rails being elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to drive
his conveyance while in a drunken condition, he would certainly have avoided the
damages which he received, although the company, on its part, was negligent in
maintaining its tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages resulting to
the plaintiff, although the plaintiff, in the judgment of the court, contributed in greater
proportion to the damages that did the defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that
the plaintiff was negligent. The conclusion that if he had been sober he would not have been
injured is not warranted by the facts as found. It is impossible to say that a sober man would not
have fallen from the vehicle under the conditions described. A horse crossing the railroad tracks
with not only the rails but a portion of the ties themselves aboveground, stumbling by reason of
the unsure footing and falling, the vehicle crashing against the rails with such force as to break a
wheel, this might be sufficient to throw a person from the vehicle no matter what his condition;
and to conclude that, under such circumstances, a sober man would not have fallen while a
drunken man did, is to draw a conclusion which enters the realm of speculation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question
presented by the appellant company with reference to the applicability of the case of Rakes vs. A.
G. & P. Co., above; and we do not find facts in the opinion of the court below which justify a
larger verdict than the one found.

Arellano, C.J., Torres and Araullo, JJ., concur.

Separate Opinions

CARSON, J., dissenting:

I dissent. I think, in the first place, that before pronouncing judgment the parties should have an
opportunity, if they so desire, to correct the manifestly accidental omission from the record of a
part of the transcript of the record. It is very clear that when the case was submitted, and the brief
filed, both parties were under the mistaken impression that all the evidence was in the record.

I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge,
these findings sufficiently establish the negligence of the plaintiff.1awphil.net
The trail judge expressly found that —

If the plaintiff had been prudent on the night in question and had not attempted to drive
his conveyance while in a drunken condition, he would certainly have avoided the
damages which he received, although the company, on its part was negligent in
maintaining its tracks in a bad condition for travel.

This is a finding of fact — the fact of negligence — and I know of no rule which requires the
trial court to set forth not only the ultimate facts found by it, but also all the evidentiary facts on
which such conclusions are based. The finding is not in conflict with the other facts found by the
trial judge, and though it is not fully sustained thereby, we must assume, if we decline to
examine the record, that there were evidentiary facts disclosed at the trial which were sufficient
to sustain the finding if negligence. "The statement of facts must contain only those facts which
are essential to a clear understanding of the issues presented and the facts involved." (Act No.
190, sec. 133.)

The facts required to be found are the ultimate facts forming the issues presented by the
pleadings, and which constitute the fundation for a judgment, and not those that are
merely evidentiary facts, or to set forth and explain the means or processes by which he
arrived at such findings. Neither evidence, argument, nor comment has any legitimate
place in findings of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)

G.R. No. 6659 September 1, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
BAGGAY, JR., defendant-appellant.

Roman Lacson, for appellant.

Acting Attorney-General Harvey, for appellee.

TORRES, J.:

This is an appeal by the defendant from the judgment rendered on April 28, 1910, whereby he
was declared exempt from criminal liability but was obliged to indemnify the heirs if the
murdered woman, Bil-liingan, in the sum of P1,000, to pay the costs in the case and to be
confined in an institution for the insane until further order of the court.

About the 4th of October, 1909, several persons were assembled in the defendant's house in the
township of Penarrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service
called "buni" according to the Tinguian custom, when he, the non-Christian Baggay, without
provocation suddenly attacked the woman Bil-liingan with a bolo, inflicting a serious wound on
her head from which she expired immediately; and with the same bolo he like wise inflicted
various wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own
mother, named Dioalan.
For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February
15, charging the non-Christian Baggay, jr., with murder, because of the violent death of the
woman Bil-liingan. This cause was instituted separately from the other, No. 1109, for lesiones.
After trial and proof that the defendant was suffering from mental aberration, the judge on April
28 rendered the judgment cited above, whereupon the defendant's counsel appealed to this court.

By another writing of June 27, the same counsel asked for immediate suspension of execution of
the judgment, because it had been appealed and had not become final. He also requested
annulment of the sale at public auction of the property attached by the sheriff or his deputy under
order of the court, for making indemnification with the defendant's property in accordance with
said judgment, as the attachment had been executed upon the property of the non-Christian
woman named Dioalan and of other persons, and not upon that of the defendant.

In opposition thereto, the provincial fiscal on the 30th of the same month requested in writing
that the appeal from this judgment filed by the counsel for the defense be not admitted or carried
forward, representing that it was out of order as having been submitted beyond the limit; for the
very day said judgment was rendered, April 28, 1910, the accused's counsel, Sotero Serrano, was
verbally notified thereof, and it is therefore untrue that he was notified only on June 17 of said
year, on which date he read and examined the case and without the clerk's knowledge signed the
same, making it appear that he was notified on that date, June 17, what he had known since April
28 of the judgment, of which the judge had verbally informed him, although the latter did not
then have him sign it.

In reply to this motion of the provincial fiscal, the defense requested that the appeal filed be
admitted and carried for ward, representing that, when the court verbally announced his decision
to defendant's counsel, the judgment had not yet been entered, and therefore neither the
defendant nor his counsel could be notified thereof in legal form until said date, June 17.

Passing upon this motion on August 2, 1910, the court declared said appeal out of order and
dismissed it; and, furthermore, denied the petition for suspension of judgment, as said judgment
had become final.

Thereupon, counsel for the defendant resorted to this court with a petition praying that a writ be
issued directing said judge, Chanco, to admit the appeal and forward it, at the same time
annulling all action taken for execution of the judgments rendered in the causes for murder and
for lesiones. After consideration thereof, the Attorney-General, on behalf of said judge and of the
provincial fiscal, requested that this remedy be declared out of order, as the issuance of such writ
against the judge of the Court of First Instance of Ilocos Sur, and much more against the
provincial fiscal, was not in accordance with law; but this court by order of November 15 saw fit
to declare said remedy of mandamus to be in order and issued a written order directing the judge
of the Court of First Instance to immediately admit the appeal filed in these two causes and to
forward all the records to this higher court. At the same time he was instructed to refrain
absolutely from executing said judgments or causing them to be executed while said appeals
were pending, a prohibition that was extended to the provincial sheriff, his agents and
representatives, until further order from this court. Upon notification of the foregoing and in
compliance therewith, the judge by order of November 22 admitted the appeal filed by counsel
for the defense both in the cause for murder and in that for lesiones.

The question raised on the appeal filed in this case by counsel for the insane defendant, Baggay,
jr., is solely whether he, notwithstanding that he was held exempt from criminal liability, has
nevertheless incurred civil liability, with obligation to indemnify the heirs of the murdered
woman and to pay the costs.

Article 17 of the Penal Code states:

Every person criminally liable for a crime or misdemeanor is also civilly liable.

Article 18 of the same code says:

The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does
not include exemption from civil liability, which shall be enforced, subject to the
following:

(1) In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic
or imbecile, or a person under 9 years of age, or over this age and under 15, who has not
acted with the exercise of judgment, are those who have them under their authority, legal
guardianship or power, unless they prove that there was no blame or negligence on their
part.

Should there be no person having them under his authority, legal guardian, or power, if
such person be insolvent, the said lunatics, imbeciles, or minors shall answer with their
own property, excepting that part which is exempted for their support in accordance with
the civil law.

True it is that civil liability accompanies criminal liability, because every person liable criminally
for a crime or misdemeanor is also liable for reparation of damage and for indemnification of the
harm done, but there may be civil liability because of acts ordinarily punishable, although the
law has declared their perpetrators exempt from criminal liability. Such is the case of a lunatic or
insane person who, in spite of his irresponsibility on account of the deplorable condition of his
deranged mind, is still reasonably and justly liable with his property for the consequences of his
acts, even though they be performed unwittingly, for the reason that his fellows ought not to
suffer for the disastrous results of his harmful acts more than is necessary, in spite of his
unfortunate condition. Law and society are under obligation to protect him during his illness and
so when he is declared to be liable with his property for reparation and indemnification, he is still
entitled to the benefit of what is necessary for his decent maintenance, but this protection does
not exclude liability for damage caused to those who may have the misfortune to suffer the
consequences of his acts.

According to the law, the persons in the first place liable. are those who have the insane party
under their care or guardianship, unless they prove that there was no blame or negligence on
their part; but if the demented person or imbecile lack a guardian or some person charged with
his care, if the latter be insolvent, then his own property must meet the civil liability of
indemnifying or repairing the damage done, and for this reason judges and courts in rendering
judgment in a criminal cause prosecuted against an insane or demented person, even when they
hold the accused exempt from criminal liability, must fix the civil liability of the persons charged
with watching over and caring for him or the liability of the demented person him self with his
property for reparation of the damage and indemnification for the harm done, unless the offended
party or the heirs of the person murdered expressly renounce such reparation or indemnification.

Therefore, the judgment appealed from being in accordance with law, affirmation thereof is
proper, and it is hereby affirmed, with costs against the appellant.

Mapa, Johnson, Carson and Moreland, JJ., concur.

SECOND DIVISION
[G.R. No. L-8110. June 30, 1956.]
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMEN’S
COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and
GERONIMO MA. COLL, Respondents.

DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmen’s
Compensation Commissioner confirming the referee’s award of compensation to the heirs of Pedro
Mamador for his accidental death.
Only the right to compensation is disputed; chan roblesvirtualawlibrary not the amount.
“It appears,” says the award, “that on August 23, 1951, at 6: 00 a.m. in Bo. Sumangga, Mogpog,
chanroblesvirtuallawlibrary

Marinduque, the deceased Mamador together with other laborers of the Respondent-corporation,
(Marinduque Iron Mines Agents Inc.) boarded a truck belonging to the latter, which was then
driven by one Procopio Macunat, also employed by the corporation, and on its way to their place
of work at the mine camp at Talantunan, while trying to overtake another truck on the company
road, it turned over and hit a coconut tree, resulting in the death of said Mamador and injury to the
others.”
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased.
(Criminal Case No. 1491). He has paid nothing however, to the latter.
In his first proposition Petitioner challenges the validity of the proceedings before the
Commission, asserting it had not been given the opportunity to cross-examine the opposing
witnesses. According to Respondents.
“The records show that pursuant to a request made by this Commission on March 28, 1953 to
investigate the above-entitled case, the Public Defender of Boac, Marinduque, notified Respondent
Geronimo Ma. Coll and the general manager of the Respondent company, Mr. Eric Lenze, to
appear before him in an investigation, first on May 12, 1953, when neither of them appeared, and
the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The sworn testimony
of Mr. Ma. Coll was then taken down in a question and answer method. On August 18, 1953, thru
Referee Ramon Villaflor, this Commission wrote the Respondent company to comment on the
enclosed copy of the sworn declaration of Ma. Coll. The Respondent company, thru its Vice
President, denied its liability under the Workmen’s Compensation Act, as amended. In an
investigation conducted on February 8, 1954 by the undersigned referee, the Respondent company
thru Mr. Lenze who was assisted by counsel, was allowed to examine the records of the case
including the sworn declaration of Ma. Coll and was given all the opportunity to rebut the same
by additional evidence.”
In our opinion, Petitioner’s grievance does not rest on any sound basis, because it was given notice,
and therefore had the chance, to examine (and cross-examine) the witnesses against it. The statute
even permits the Commissioner (or his referee) to take testimony without notice (section 48 Act
3428 as amended) provided of course such ex parte evidence is reduced to writing, and the adverse
party is afforded opportunity to examine and rebut the same which was done in this instance.
Anyway we are not shown how its failure to cross-examine the witnesses prejudiced the
Petitioner’s position.
In its second proposition, Petitioner maintains that this claim is barred by section 6 of the
Workmen’s Compensation Law, because (a) Macunat was prosecuted and required to indemnify
the heirs of the deceased and (b) an amicable settlement was concluded between said heirs and
Macunat.
Section 6 provides as follows: chanroblesvirtuallawlibrary

“Sec. 6. Liability of third parties. — In case an employee suffers an injury for which compensation
is due under this Act by any other person besides his employer, it shall be optional with such
injured employee either to claim compensation from his employer, under this Act, or sue such
other person for damages, in accordance with law; and in case compensation is claimed and
chan roblesvirtualawlibrary

allowed in accordance with this Act, the employer who paid such compensation or was found
liable to pay the same, shall succeed the injured employee to the right of recovering from such
person what he paid: Provided, That in case the employer recovers from such third person
chanroblesvirtuallawlibrary

damages in excess of those paid or allowed under this Act, such excess shall be delivered to the
injured employee or any other person entitled thereto, after deduction of the expenses of the
employer and the costs of the proceedings. The sum paid by the employer for compensation or the
amount of compensation to which the employee or his dependents are entitled, shall not be
admissible as evidence in any damage suit or action.”
It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome constituted an
election by the employee (or his heirs) to sue the third person, such election having the effect of
releasing the employer. However, Criminal Case No. 1491 was not a suit for damages against the
third person, it being alleged, without contradiction that the heirs did not intervene therein and
have not so far received the indemnity ordered by the court. At any rate, we have already decided
in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal prosecution of the
“other person” does not affect the liability of the employer to pay compensation. 2
As to the alleged “amicable settlement,” it consists of an affidavit wherein, for the sum of 150
pesos, Mamador’s widow promised “to forgive Macunat for the wrong committed and not to bring
him before the authorities for prosecution.” Upon making such promise — Petitioner argues —
she elected one of the remedies, (against the third person) and is barred from the other remedy
(against the employer). The contention may not be sustained, inasmuch as all the widow promised
was to forego the offender’s criminal prosecution. Note further that a question may be raised
whether she could bind the other heirs of the deceased.
The most important aspect of this appeal, is the effect of the deceased’s having violated the
employer’s prohibition against laborers riding the haulage trucks. Petitioner claims such violation
was the laborer’s “notorious negligence” which, under the law, precludes recovery. The
Commission has not declared that the prohibition was known to Mamador. Yet the employer does
not point out in the record evidence to that effect. Supposing Mamador knew the prohibition, said
the referee, “can we truthfully say that he boarded the fatal truck with full apprehension of the
existence of the danger, if any at all, that an ordinary prudent man would try to avoid? I do not
believe so, and even in the presence of doubt, the same must be resolved in his favor. Unless of
course, we can attribute to him a desire to end his life. Nowhere in the records of this case can we
find the slightest insinuation of that desire.”
There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence,
ordinarily. It couldn’t be, because transportation by truck is not dangerous per se. It is argued that
there was notorious negligence in this particular instance because there was the employer’s
prohibition. Does violation of this order constitute negligence? Many courts hold that violation of
a statute or ordinance constitutes negligence per se. Others consider the circumstances.
However there is practical unanimity in the proposition that violation of a rule promulgated by a
Commission or board is not negligence per se; but it may be evidence of negligence. (C.J.S.,
chan roblesvirtualawlibrary

Vol. 65, p. 427.)

This order of the employer (prohibition rather) couldn’t be of a greater obligation than the rule of
a Commission or board. And the referee correctly considered this violation as possible evidence
of negligence; but it declared that under the circumstance, the laborer could not be declared to
chan roblesv irtualawlibrary

have acted with negligence. Correctly, it is believed, since the prohibition had nothing to do with
personal safety of the riders.
Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding.
Nevertheless, even granting there was negligence, it surely was not “notorious” negligence, which
we have interpreted to mean the same thing as “gross” negligence 3 — implying “conscious
indifference to consequences” “pursuing a course of conduct which would naturally and probably
result in injury” “utter disregard of consequences.” (38 Am. Jur., 691) Getting or accepting a free
ride on the company’s haulage truck couldn’t be gross negligence, because as the referee found,
“no danger or risk was apparent.”
There being no other material point raised in the petition for review, the award of compensation is
hereby affirmed, with costs against Petitioner.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.

Separate Opinions

MONTEMAYOR, J.:
I concur in the result. I believe that the injury suffered herein was not in the course of the
employments, neither did it arise out of it, but this question does not seem to have been raised
below or in the appeal.

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.

DECISION

DAVIDE, JR., J.:

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 Hammurabii[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."ii[2] Subsequently,
Hippocratesiii[3] wrote what was to become part of the healer's oath: "I will follow that method
of treatment which according to my ability and judgment, I consider for the benefit of my
patients, and abstain from whatever is deleterious and mischievous . . . . While I continue to keep
this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men
at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession is the preservation of life and maintenance of the
health of the people.iv[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 decisionv[5] of the Court of Appeals of 11 May 1994 in CA-
G.R. CV No. 30851, which reversed the decisionvi[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 result 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.vii[7]

The piece of rubber allegedly found near private respondent Flotilde Villegas' 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,viii[8] it was not mentioned in the pathologist's Surgical Pathology
Report.ix[9]

Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical
Certificate,x[10] a Progress Record,xi[11] an Anesthesia Record,xii[12] a Nurse's
Record,xiii[13] and a Physician's Discharge Summary.xiv[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 . . . ."xv[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,xvi[16] as could be gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with
the tissues but unluckily I don't know where the rubber was.xvii[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."xviii[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.xix[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' 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 cesarean
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.xx[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 amounts of P17,000.00 as and for actual damages; P100,000.00 as and
for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the cost of litigation.

SO ORDERED.xxi[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.xxii[22]

After deciphering the cryptic petition, we find that the focal point of the instant appeal is the
appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals
misappreciated the following portion of Dr. Kho's testimony:

Q What is the purpose of the examination?

A Just in case, I was just thinking at the back of my mind, just in case this would turn out to
be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign body
that goes with the tissues but unluckily I don't know where the rubber was. It was not in the Lab,
it was not in Cebu.xxiii[23] (Italics supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's
knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other
hand, concluded that the underscored phrase was taken out of context by the trial court.
According to the Court of Appeals, the trial court should have likewise considered the other
portions of Dr. Kho's testimony, especially the following:

Q So you did actually conduct the operation on her?

A Yes, I did.

Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there
was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on
opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out . . . to
have pus. And then, cleaning up the uterus, at the back of the uterus it was very dirty, it was full
of pus. And there was a [piece of] rubber, we found a [piece of] rubber on the right side.xxiv[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' abdomen, and that she
sent it to a laboratory and then to Cebu City for examination by a pathologist.xxv[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.xxvi[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 admissiblexxvii[27] but
it carries no probative value.xxviii[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' 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.xxix[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,xxx[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.xxxi[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.xxxii[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.xxxiii[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.xxxiv[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.xxxv[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' 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:

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 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 be prima facie evidence thereof and facilitates the burden of plaintiff of
proving a breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily available.xxxvi[36]

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire
proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this
light, the private respondents were bereft of direct evidence as to the actual culprit or the exact
cause of the foreign object finding its way into private respondent Villegas' body, which,
needless to say, does not occur unless through the intervention of negligence. Second, since aside
from the cesarean section, private respondent Villegas underwent no other operation which could
have caused the offending piece of rubber to appear in her uterus, it stands to reason that such
could only have been a by-product of the cesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the presumption of negligence arising from resort
to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind
a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession plays
in the lives of the people,xxxvii[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."xxxviii[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."xxxix[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,xl[40] and
members of the medical profession,xli[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., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS
MULTI-INDEMNITY CORPORATION, respondents.

Edralin S. Mateo for petitioner.

Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.

Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055,
entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and set aside the decision 3 of the Regional Trial
Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter claims
of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for reconsideration, for lack of merit.

The findings of fact by the trial court which were adopted by the appellate court are as follows: 5

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck with Plate
No. SU-730 which was parked along the right side of the National Highway; that defendant's truck bearing Plate No.
PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized
at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that he spent TEN
THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he recuperates from said injuries; that because of
said injuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00);
and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00).

As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and plaintiff's
evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf of the plaintiff was
set aside to give a chance to the defendant to file his answer and later on, a third-party complaint.

Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law law of the driver of said
truck; that the truck allegedly being repaired was parked, occupying almost half of the right lane towards Solano, Nueva
Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in
installing the early warning device, hence the driver of the parked car should be liable for damages sustained by the
truck of the herein defendant in the amount of more than P20,000.00; that plaintiff being a mere bystander and
hitchhiker must suffer all the damages he incurred. By way of counterclaim defendant alleged that due to plaintiffs
baseless complaint he was constrained to engage the services of counsel for P5,000.00 and P200.00 per court
appearance; that he suffered sleepless nights, humiliation, wounded feelings which may be estimated at P30.000.00.

On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi Indemnity
Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the third-party
defendant is liable to the former for contribution, indemnity and subrogation by virtue of their contract under Insurance
Policy No. 11723 which covers the insurer's liability for damages arising from death, bodily injuries and damage to
property.

Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a valid and
existing insurance policy, its liability shall in no case exceed the limit defined under the terms and conditions stated
therein; that the complaint is premature as no claim has been submitted to the third party defendant as prescribed
under the Insurance Code; that the accident in question was approximately caused by the carelessness and gross
 negligence of the plaintiff-, that by reason of the third-party complaint, third-party defendant was constrained to engage
the services of counsel for a fee of P3,000.00.

Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked
as a truck helper and while working as such, he sustained injuries as a result of the bumping of the cargo truck they
were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED
PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00)
per trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he
supported his family sufficiently, but after getting injured, his family is now being supported by his parents and brother.

GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident is
insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under vehicle
policy No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim the insurance company paid him
the sum of P18,000.00 for the damages sustained by this truck but not the third party liability.

DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of Bagabag,
Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of a driver; that before leaving, he checked the truck.
The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro Layugan,
plaintiff, while the same was at a stop position. From the evidence presented, it has been established clearly that the
injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The police report confirmed the
allegation of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision dislodged the jack from
the parked truck and pinned the plaintiff to the ground. As a result thereof, plaintiff sustained injuries on his left forearm
and left foot. The left leg of the plaintiff from below the knee was later on amputated (Exh. "C") when gangrene had set
in, thereby rendering him incapacitated for work depriving him of his income. (pp. 118 to 120, Record on Appeal.)

xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the dispositive part of which reads as
follows: 6

WHEREFORE, premises considered, the defendant is hereby ordered:

a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages;

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and

d) To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify the
defendant/third party plaintiff-.

a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and

b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the third-party
complaint, and the counter- claims of both appellants. 7

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN
REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.

2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE DOCTRINE OF
"RES IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.

The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent under the
doctrine of Res ipsa loquitur (The thing speaks for itself).<äre||anº•1àw> Corollary thereto, is the question as to who is negligent, if the
doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this Court in a petition
for review by certiorari. 9

Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to great respect and will
not ordinarily be disturbed by this Court. 10 For if we have to review every question of fact elevated to us, we would hardly have any more
time left for the weightier issues compelling and deserving our preferential attention.11 Be that as it may, this rule is not inflexible. Surely
there are established exceptions 12 —when the Court should review and rectify the findings of fact of the lower court, such as:

1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3)
there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of
the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are
contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8)
the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the
findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record.

Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule.

From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of Appeals inferred that because of its weight the
truck could not have been driven to the shoulder of the road and concluded that the same was parked on a portion of the road 14 at the time
of the accident. Consequently, the respondent court inferred that the mishap was due to the negligence of the driver of the parked truck.15
The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture. How the
respondent court could have reversed the finding of the trial court that a warning device was installed 16 escapes us because it is evident
from the record that really such a device, in the form of a lighted kerosene lamp, was installed by the driver of the parked truck three to four
meters from the rear of his parked truck.17 We see this negative finding of the respondent appellate court as a misreading of the facts and
the evidence on record and directly contravening the positive finding of the trial court that an early warning device was in proper place when
the accident happened and that the driver of the private respondent was the one negligent. On the other hand, the respondent court, in
refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent
in driving the truck that bumped the parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and
nebulously adverted to unspecified "scanty evidence on record." 18

On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it was filed out of
time. It must be noted that there was a motion for extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986,
requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on April 1, 1986, an
appearance of a new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a similar motion 21 was filed with this Court
also on April 1, 1986. On the other hand, the instant petition for review was filed on April 17, 1986 22 but it was only after three months, on
August 1, 1986, in its comment 23 that the respondent corporation raised the issue of tardiness. The respondent corporation should not have
waited in ambush before the comment was required and before due course was given. In any event, to exact its "a pound of flesh", so to
speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent Isidro did
not raise this issue of late filing.

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable
man would not do24 or as Judge Cooley defines it, "(T)he 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.25

In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:

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.

Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which
has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so that the
motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that care
and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road,
while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the petitioner must show to the
satisfaction of a reasonable mind that the driver and he (petitioner) himself, provided an early warning device, like that required by law, or, by
some other adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the
time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes, would,
under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his
helper, the petitioner herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.

The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted kerosene lamp was placed.28
Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29

Question No. 8 (by Patrolman Josefino Velasco)—Will you narrate to me in brief how the accident happens (sic) if you
can still remember?

Answer: (by Daniel Serrano)

That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva
Vizcaya and at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which cause
(sic) me to be blinded with intense glare of the light that's why I did not notice a parked truck who
(sic) was repairing a front flat tire. When I was a few meters away, I saw the truck which was
loaded with round logs. I step (sic) on my foot brakes but it did not function with my many
attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the
breaks did not function. (Emphasis supplied).

Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would be of no moment taking into
account the warning device consisting of the lighted kerosene lamp placed three or four meters from the back of the truck. 30 But despite this
warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still bumped the rear of
the parked cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left forearm and left foot. His left leg
was later amputated from below the knee when gangrene had set in. 31

It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been established by clear and convincing
evidence. It follows that in stamping its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape
liability for the negligence of his employee, the respondent court committed reversible error.

The respondent court ruled: 32

xxx xxx xxx

In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that the
accident was caused due to the negligence of the driver of the cargo truck:

xxx xxx xxx

... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted
evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while
the immobile truck has no business, so to speak, to be there. It is thus for the plaintiff to show to
the satisfaction of a reasonable mind that the driver and he himself did employ early warning
device such as that required by law or by some other adequate means or device that would
properly forewarn vehicles of the impending danger that the parked vehicle posed considering the
time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in the
case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur, on
the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of
said truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res ipsa
loquitur.

This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident
is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. 33 Or as Black's Law Dictionary 34
puts it:

Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent, which
arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was
one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident
and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and
that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Hillen v.
Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the happening of an
injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an
agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such
that in the ordinary course of things would not happen if reasonable care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is
in the case of F.F. Cruz and Co., Inc. vs. CA.36

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may
be established without direct proof and furnishes a substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law
38 but merely a mode of proof or a mere procedural convenience. 39 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 part of the party charged. 40 It
merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the
duty of due care.41 The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not
readily available. 42 Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is
overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the
injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant
on the occurrence clearly appear. 43 Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by
the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely
eludicated that no inference of defendant's liability can reasonably be made, whatever the source of the evidence, 44 as in this case.

The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, 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 selection, or both. Such presumption is juris
tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the
court that in the selection and in the 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. 45 In disclaiming liability for the incident, the private respondent stresses that the negligence of his
employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck
owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his responsibilities
because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the
private respondent used to intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any
accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts
established at the trial 47 The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of
his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that
the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver
to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if
any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that
Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his
mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro
as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.

WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its Resolution denying the petitioner's
motion for reconsideration are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in
toto. With costs against the private respondents.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS,
petitioners, vs. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO
HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.

DECISION

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and
welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his
acts. A mistake, through gross negligence or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor plays God on his patients fate.xlii[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy.xliii[2]

Petitioners seek the reversal of the decisionxliv[3] of the Court of Appeals, dated 29 May 1995,
which overturned the decisionxlv[4]of the Regional Trial Court, dated 30 January 1992, finding
private respondents liable for damages arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. A) robust
woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to
pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp.
4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an executive of
Philippine Long Distance Telephone Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional
advice. She was advised to undergo an operation for the removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and
urine tests (Exhs. A and C) which indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she
and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985 at
9:00 A.M.. Dr. Hosaka decided that she should undergo a cholecystectomy operation after
examining the documents (findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist.
Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologists fee and
which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also
with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia.
Although not a member of the hospital staff, Herminda introduced herself as Dean of the College
of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to
them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, Mindy, wala pa ba ang Doctor? The former replied, Huwag kang mag-alaala,
darating na iyon (ibid.).

Thereafter, Herminda went out of the operating room and informed the patients husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating room,
the patient told her, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. So, she went out
again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the
operating room.

At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the arrival of the
doctor even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife,
who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing
those words, he went down to the lobby and waited for the operation to be completed (id., pp. 16,
29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that Dr. Hosaka is already here. She then saw people inside the operating room
moving, doing this and that, [and] preparing the patient for the operation (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg position - a position where the head of the patient is placed
in a position lower than her feet which is an indication that there is a decrease of blood supply to
the patients brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room,
and she told Rogelio E. Ramos that something wrong was x x x happening (Ibid.). Dr. Calderon
was then able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that something wrong was happening, he
told her (Herminda) to be back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed
the former that something went wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15,
1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She cannot move any part of her body. She cannot
see or hear. She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22).
After being discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from diffuse cerebral parenchymal damage (Exh. G; see also TSN, December 21, 1989,
p. 6).xlvi[5]

Thus, on 8 January 1986, petitioners filed a civil casexlvii[6] for damages with the Regional
Trial Court of Quezon City against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlindas injury.
Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that
the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to the
anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in
favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very
least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to
provide the patient a `good anesthesiologist', and for arriving for the scheduled operation almost
three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of
the doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable
for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with
due care and prudence in rendering medical services to plaintiff-patient. For if the patient was
properly intubated as claimed by them, the patient would not have become comatose. And, the
fact that another anesthesiologist was called to try to intubate the patient after her (the patient's)
nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an emergency case.

xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned
from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way
of exemplary damages; and,

4) the costs of the suit.

SO ORDERED.xlviii[7]

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal
portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice
must be tempered with mercy.

SO ORDERED.xlix[8]

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos
who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision, however, was
sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995.l[9] Meanwhile petitioners engaged the services of another
counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading
on the assailed decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision
as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the
latter should be denied.

Even assuming admissibility of the Motion for Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.li[10]

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or
on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted the motion for extension of time
and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within
the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.

GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE

THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.lii[11]

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their Comment,liii[12] private respondents contend that the petition should
not be given due course since the motion for reconsideration of the petitioners on the decision of
the Court of Appeals was validly dismissed by the appellate court for having been filed beyond
the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to
then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of
the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished
to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for
filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the
partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the
former should be considered in determining the timeliness of the filing of the present petition.
Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For
a more logical presentation of the discussion we shall first consider the issue on the applicability
of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors
shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for
itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation.liv[13] Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the defendants want
of care.lv[14]

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with
negligence.lvi[15] It is grounded in the superior logic of ordinary human experience and on the
basis of such experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself.lvii[16] Hence, res ipsa loquitur is applied in conjunction with
the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability.lviii[17] Instead, it is
considered as merely evidentiary or in the nature of a procedural rule.lix[18] It is regarded as a
mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence.lx[19] In other words, mere
invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof.lxi[20] Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants;

and

3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.lxii[21]

In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage.lxiii[22] Such element of control must be shown to be within the dominion of
the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.lxiv[23]

Medical malpracticelxv[24]cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm.lxvi[25] The
application of res ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference.lxvii[26]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence.lxviii[27]
The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by anyone familiar with the
facts.lxix[28] Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-
expert witnesses.lxx[29] Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the patient, without the aid
of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care.lxxi[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why
it occurred.lxxii[31] When the doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of and the injury sustained while under
the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving
of a foreign object in the body of the patient after an operation,lxxiii[32] injuries sustained on a
healthy part of the body which was not under, or in the area, of treatment,lxxiv[33] removal of
the wrong part of the body when another part was intended,lxxv[34] knocking out a tooth while a
patients jaw was under anesthetic for the removal of his tonsils,lxxvi[35] and loss of an eye
while the patient plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis,lxxvii[36] among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the
burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised.lxxviii[37] A distinction must be made between the
failure to secure results, and the occurrence of something more unusual and not ordinarily found
if the service or treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of
a scientific treatment.lxxix[38] The physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any particular scientific treatment did not
produce the desired result.lxxx[39] Thus, res ipsa loquitur is not available in a malpractice suit if
the only showing is that the desired result of an operation or treatment was not
accomplished.lxxxi[40] The real question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such
operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence.lxxxii[41] If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.lxxxiii[42]

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell,lxxxiv[43] where the Kansas
Supreme Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
the care, custody and control of his physician who had complete and exclusive control over him,
but the operation was never performed. At the time of submission he was neurologically sound
and physically fit in mind and body, but he suffered irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these circumstances a
layman would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under
the influence of anesthetics and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur.lxxxv[44]

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder operation.
In fact, this kind of situation does not happen in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if
the proper procedure was followed. Furthermore, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been
guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying
that the doctrine is applicable in any and all cases where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine if
the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies
of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra.
Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubationlxxxvi[45]of the patient and thus,
cannot be said to be covering her negligence with falsehood. The appellate court likewise opined
that private respondents were able to show that the brain damage sustained by Erlinda was not
caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the
drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert
witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to
the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict
in favor of respondents physicians and hospital and absolved them of any liability towards
Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their
negligence was the proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of
the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability
is based. As will be shown hereinafter, private respondents own testimonies which are reflected
in the transcript of stenographic notes are replete of signposts indicative of their negligence in
the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of
Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of
the patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.

xxx

ATTY. PAJARES:

Q: From whom did you hear those words lumalaki ang tiyan?

A: From Dra. Perfecta Gutierrez.

xxx

After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed
became bluish and I saw the patient was placed in trendelenburg position.

xxx

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to
the brain.lxxxvii[46]

xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring
that:

A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the patient or that she conducted any type of examination
to check if the endotracheal tube was in its proper place, and to determine the condition of the
heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases.lxxxviii[47]

In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing
such as, the statements and acts of the physician and surgeon, external appearances, and manifest
conditions which are observable by any one.lxxxix[48] This is precisely allowed under the
doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony unnecessary.xc[49] We
take judicial notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too difficult to
tell if the tube was properly inserted. This kind of observation, we believe, does not require a
medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
of Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing.xci[50]Reviewing witness Cruz' statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted
that she experienced difficulty in inserting the tube into Erlindas trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you
did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the ...

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said mahirap yata ito, what were you referring to?

A: Mahirap yata itong i-intubate, that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away.xcii[51]

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person)xciii[52]
making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlindas airway,
prior to the induction of anesthesia, even if this would mean postponing the procedure. From
their testimonies, it appears that the observation was made only as an afterthought, as a means of
defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally

observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and
preparation for anesthesia begins when the anesthesiologist reviews the patients medical records
and visits with the patient, traditionally, the day before elective surgery.xciv[53] It includes
taking the patients medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.xcv[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system,
lungs and upper airway.xcvi[55] A thorough analysis of the patient's airway normally involves
investigating the following: cervical spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance.xcvii[56] Thus, physical characteristics of the patients upper airway that could make
tracheal intubation difficult should be studied.xcviii[57] Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and protruding teeth of
Erlinda) a thorough examination of the patients airway would go a long way towards decreasing
patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for
the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around
with the trial court's ignorance of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so
you can introduce yourself to establish good doctor-patient relationship and gain the trust and
confidence of the patient?

DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance like
that, I usually don't do it except on emergency and on cases that have an abnormalities
(sic).xcix[58]

However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able
to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks or even months. Hence, in these
cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including
the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one
day before the intended surgery, when the patient is relaxed and cooperative.

Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all
the time to make a thorough evaluation of Erlindas case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside. She herself admitted that she had
seen petitioner only in the operating room, and only on the actual date of the cholecystectomy.
She negligently failed to take advantage of this important opportunity. As such, her attempt to
exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of
the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlindas comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas
coma was due to bronchospasmc[59] mediated by her allergic response to the drug, Thiopental
Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of
the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory that the oxygen deprivation which led to
anoxic encephalopathy,ci[60] was due to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have
been capable of properly enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert witness in
the anesthetic practice of Pentothal administration is further supported by his own admission that
he formulated his opinions on the drug not from the practical experience gained by a specialist or
expert in the administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read
from books and not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal experience
you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims.cii[61]

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the
fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug
with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidenceciii[62]regarding expert witnesses states:

Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience.civ[63] Clearly, Dr. Jamora does not qualify as an expert
witness based on the above standard since he lacks the necessary knowledge, skill, and training
in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents intentionally avoided providing testimony by competent and
independent experts in the proper areas.

Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing - some of the more common accompanying signs of an
allergic reaction - appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to absolve them of any and all responsibility for the patients condition.

In view of the evidence at hand, we are inclined to believe petitioners stand that it was the faulty
intubation which was the proximate cause of Erlindas comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces injury, and without which the result would not have
occurred.cv[64] An injury or damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or omission.cvi[65] It
is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably
the proximate cause which triggered the chain of events leading to Erlindas brain damage and,
ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure.
This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez
remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development
of abdominal distention, together with respiratory embarrassment indicates that the endotracheal
tube entered the esophagus instead of the respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been observed during the first intubation suggests
that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis.cvii[66] As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda
were already blue.cviii[67] However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No evidence exists
on record, beyond private respondents' bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into
the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of
a successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial
court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her
brain for about four to five minutes.cix[68]

The above conclusion is not without basis. Scientific studies point out that intubation problems
are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia.cx[69] Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patients airway prior
to the operation.cxi[70] As stated beforehand, respondent Dra. Gutierrez failed to observe the
proper pre-operative protocol which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent
physician could have been much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patients neck and oral area, defects which would have been
easily overcome by a prior knowledge of those variations together with a change in
technique.cxii[71] In other words, an experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had little difficulty going around the short neck
and protruding teeth.cxiii[72] Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra. Gutierrez negligence resulted in cerebral
anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called captain of the ship,cxiv[73] it is the surgeons responsibility to see to it that
those under him perform their task in the proper manner. Respondent Dr. Hosakas negligence
can be found in his failure to exercise the proper authority (as the captain of the operative team)
in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no
evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas
cholecystectomy, and was in fact over three hours late for the latters operation. Because of this,
he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting
consultants,cxv[74] who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and
in the conduct of their work within the hospital premises. Doctors who apply for consultant slots,
visiting or attending, are required to submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a review committee set up by the
hospital who either accept or reject the application.cxvi[75] This is particularly true with
respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required

to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physicians performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting consultant staff. While consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patients condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioners
condition.cxvii[76]

The basis for holding an employer solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the formers responsibility under a relationship of
patria potestas.cxviii[77] Such responsibility ceases when the persons or entity concerned prove
that they have observed the diligence of a good father of the family to prevent damage.cxix[78]
In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is
shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should
prove that they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the latter. It failed to adduce evidence
with regard to the degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlindas condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176cxx[79] of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, subject to
its being updated covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her
with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be
seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into account those situations, as in this
case, where the resulting injury might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty.cxxi[80] In
other words, temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of the unique
nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable - and certainly not in the best interests of the administration of
justice - for the victim in such cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would
be now much more in step with the interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care for their loved one in a facility which
generally specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages
would therefore be reasonable.cxxii[81]

In Valenzuela vs. Court of Appeals,cxxiii[82] this Court was confronted with a situation where
the injury suffered by the plaintiff would have led to expenses which were difficult to estimate
because while they would have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation

of her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left
 extremity, even with the use of state of the art prosthetic technology. Well beyond the
period of hospitalization (which was paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the shrinkage of the stump from the process
of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected by
the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical
and occupational therapy. All of these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.cxxiv[83]

The injury suffered by Erlinda as a consequence of private respondents negligence is certainly

much more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of the
love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioners condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victims actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victims condition.cxxv[84] The husband and the
children, all petitioners in this case, will have to live with the day to day uncertainty of the
patients illness, knowing any hope of recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The familys moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would
be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians
are not insurers of life and, they rarely set out to intentionally cause injury or death to their
patients. However, intent is immaterial in negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose
of preventing complications. A physicians experience with his patients would sometimes tempt
him to deviate from established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to follow established
procedure results in the evil precisely sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage, the physician would necessarily
be called to account for it. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way was fatal to private
respondents case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the
costs of the suit.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.

MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his own

behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS,
CORAZON, CLEMENTE and AURORA, all surnamed MAGNO, SALUD MAGNO, and
the COURT OF APPEALS (Second Division), Respondents.

DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother,
located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said to be in a leaking
condition. The “media agua” was just below the window of the third story. Standing on said “media
agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet to cover the
leaking portion, turned around and in doing so the lower end of the iron sheet came into contact
with the electric wire of the Manila Electric Company (later referred to as the Company) strung
parallel to the edge of the “media agua” and 2 1/2 feet from it, causing his death by electrocution.
His widow and children fled suit to recover damages from the company. After hearing, the trial
court rendered judgment in their favor — P10,000 as compensatory damages; P784 as actual chan roblesvirtualawlibrary

damages; P2,000 as moral and exemplary damages; and P3,000 as attorney’s fees, with costs.
chan roblesvirtualawlibrary chan roblesv irtualawlibrary

On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification by
reducing the attorney’s fees from P3,000 to P1,000 with costs. The electric company has appealed
said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated in the following
portions of its decision which we reproduce below: chanroblesvirtuallawlibrary

“The electric wire in question was an exposed, uninsulated primary wire stretched between poles
on the street and carrying a charge of 3,600 volts. It was installed there some two years before
Peñaloza’s house was constructed. The record shows that during the construction of said house a
similar incident took place, although fortunate]y with much less tragic consequences. A piece of
wood which a carpenter was holding happened to come in contact with the same wire, producing
some sparks. The owner of the house forthwith complained to Defendant about the danger which
the wire presented, and as a result Defendant moved one end of the wire farther from the house by
means of a brace, but left the other end where it was.
“At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the
distance from the electric wire to the edge of the ‘media agua’ on which the deceased was making
repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that ‘all wires
be kept three feet from the building.’ Appellant contends that in applying said regulations to the
case at bar the reckoning should not be from the edge of the ‘media agua’ but from the side of the
house and that, thus measured, the distance was almost 7 feet, or more then the minimum
prescribed. This contention is manifestly groundless, for not only is a ‘media agua’ an integral part
of the building to which it is attached but to exclude it in measuring the distance would defeat the
purpose of the regulation. Appellant points out, nevertheless, that even assuming that the distance,
within the meaning of the city regulations, should be measured from the edge of the ‘media agua’,
the fact that in the case of the house involved herein such distance was actually less than 3 feet
was due to the fault of the owner of said house, because the city authorities gave him a permit to
construct a ‘media agua’ only one meter or 39 1/2 inches wide, but instead he built one having a
width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the authorities, thereby
reducing the distance to the electric wire to less than the prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the
city authorities for the construction of the ‘media agua’, and that if he had not done so Appellants
wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge
of the ‘media agua’. It is also a fact, however, that after the ‘media agua’ was constructed the
owner was given a final permit of occupancy of the house . cralaw

“ The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according
cralaw

to Appellant, no insulation that could have rendered it safe, first, because there is no insulation
material in commercial use for such kind of wire; and secondly, because the only insulation
chan roblesvirtualawlibrary

material that may be effective is still in the experimental stage of development and, anyway, its
costs would be prohibitive… ”
The theory followed by the appellate court in finding for the Plaintiff is that although the owner of
the house in constructing the “media agua” in question exceeded the limits fixed in the permit,
still, after making that “media agua”, its construction though illegal, was finally approved because
he was given a final permit to occupy the house; that it was the company that was at fault and
chan roblesvirtualawlibrary

was guilty of negligence because although the electric wire in question had been installed long
before the construction of the house and in accordance with the ordinance fixing a minimum of 3
feet, mere compliance with the regulations does not satisfy the requirement of due diligence nor
avoid the need for adopting such other precautionary measures as may be warranted; that chan roblesv irtualawlibrary

negligence cannot be determined by a simple matter of inches; that all that the city did was to
chan rob lesvirtualawlibrary

prescribe certain minimum conditions and that just because the ordinance required that primary
electric wires should be not less than 3 feet from any house, the obligation of due diligence is not
fulfilled by placing such wires at a distance of 3 feet and one inch, regardless of other factors. The
appellate court, however, refrained from stating or suggesting what other precautionary measures
could and should have been adopted.
After a careful study and discussion of the case and the circumstances surrounding the same, we
are inclined to agree to the contention of Petitioner Company that the death of Magno was
primarily caused by his own negligence and in some measure by the too close proximity of the
“media agua” or rather its edge to the electric wire of the company by reason of the violation of
the original permit given by the city and the subsequent approval of said illegal construction of the
“media agua”. We fail to see how the Company could be held guilty of negligence or as lacking in
due diligence. Although the city ordinance called for a distance of 3 feet of its wires from any
building, there was actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the
house of Peñaloza. Even considering said regulation distance of 3 feet as referring not to the side
of a building, but to any projecting part thereof, such as a “media agua”, had the house owner
followed the terms of the permit given him by the city for the construction of his “media agua”,
namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of said “media
agua” would have been 3 feet and 11 3/8 inches. In fixing said one meter width for the “media
agua” the city authorities must have wanted to preserve the distance of at least 3 feet between the
wires and any portion of a building. Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of
2 1/2 feet between the “Media agua” as illegally constructed and the electric wires. And added to
this violation of the permit by the house owner, was its approval by the city through its agent,
possibly an inspector. Surely we cannot lay these serious violations of a city ordinance and permit
at the door of the Company, guiltless of breach of any ordinance or regulation. The Company
cannot be expected to be always on the lookout for any illegal construction which reduces the
distance between its wires and said construction, and after finding that said distance of 3 feet had
been reduced, to change the stringing or installation of its wires so as to preserve said distance. It
would be much easier for the City, or rather it is its duty, to be ever on the alert and to see to it that
its ordinances are strictly followed by house owners and to condemn or disapprove all illegal
constructions. Of course, in the present case, the violation of the permit for the construction of the
“media agua” was not the direct cause of the accident. It merely contributed to it. Had said “media
agua” been only one meter wide as allowed by the permit, Magno standing on it, would
instinctively have stayed closer to or hugged the side of the house in order to keep a safe margin
between the edge of the “media agua” and the yawning 2-story distance or height from the ground,
and possibly if not probably avoided the fatal contact between the lower end of the iron sheet and
the wires.
We realize that the presence of the wires in question quite close to the house or its “media agua”
was always a source of danger considering their high voltage and uninsulated as they were, but the
claim of the company and the reasons given by it for not insulating said wires were unrefuted as
we gather from the findings of the Court of Appeals, and so we have to accept them as satisfactory.
Consequently, we may not hold said company as guilty of negligence or wanting in due diligence
in failing to insulate said wires. As to their proximity to the house it is to be supposed that distance
of 3 feet was considered sufficiently safe by the technical men of the city such as its electrician or
engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased the margin of
safety but other factors had to be considered such as that the wires could not be strung or the posts
supporting them could not be located too far toward the middle of the street. Thus, the real cause
of the accident or death was the reckless or negligent act of Magno himself. When he was called
by his stepbrother to repair the “media agua” just below the third story window, it is to be presumed
that due to his age and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter
and had training and experience for the job. So, he could not have been entirely a stranger to
electric wires and the danger lurking in them. But unfortunately, in the instant care, his training
and experience failed him, and forgetting where he was standing, holding the 6-feet iron sheet with
both hands and at arms length, evidently without looking, and throwing all prudence and discretion
to the winds, he turned around swinging his arms with the motion of his body, thereby causing his
own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for damages the Court of
Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case
is exactly applicable. There, the premises involved was that elevated portion or top of the walls of
Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the Court, it was “a public
place where persons come to stroll, to rest and to enjoy themselves”. The electric company was
clearly negligent in placing its wires so near the place that without much difficulty or exertion, a
person by stretching his hand out could touch them. A boy named Astudillo, placing one foot on
a projection, reached out and actually grasped the electric wire and was electrocuted. The person
electrocuted in said case was a boy who was in no position to realize the danger. In the present
case, however, the wires were well high over the street where there was no possible danger to
pedestrians. The only possible danger was to persons standing on the “media agua”, but a “media
agua” can hardly be considered a public place where persons usually gather. Moreover, a person
standing on the “media agua” could not have reached the wires with his hands alone. It was
necessary as was done by Magno to hold something long enough to reach the wire. Furthermore,
Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trained
and experienced in the repair of galvanized iron roofs and “media agua”. Moreover, in that very
case of Astudillo vs. Manila Electric Co., supra, the court said that although it is a well- established
rule that the liability of electric companies for damages or personal injuries is governed by the
rules of negligence, nevertheless such companies are not insurers of the safety of the public.
But even assuming for a moment that under the facts of the present case the Defendant electric
company could be considered negligent in installing its electric wires so close to the house and
“media agua” in question, and in failing to properly insulate those wires (although according to
the unrefuted claim of said company it was impossible to make the insulation of that kind of wire),
nevertheless to hold the Defendant liable in damages for the death of Magno, such supposed
negligence of the company must have been the proximate and principal cause of the accident,
because if the act of Magno in turning around and swinging the galvanized iron sheet with his
hands was the proximate and principal cause of the electrocution, then his heirs may not recover.
Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad and Light
Company, 16 Phil., 8. In that case, the electric company was found negligent in leaving scattered
on its premises fulminating caps which Taylor, a 15- year old boy found and carried home. In the
course of experimenting with said fulminating caps, he opened one of them, held it out with his
hands while another boy applied a lighted match to it, causing it to explode and injure one of his
eyes eventually causing blindness in said eye. Said this Tribunal in denying recovery for the
injury: chanroblesvirtuallawlibrary

“ , so that while it may be true that these injuries would not have been incurred but for the negligent
cralaw

act of the Defendant in leaving the caps exposed on its premises, nevertheless Plaintiff’s own act
was the proximate and principal cause of the accident which inflicted the injury.”
To us it is clear that the principal and proximate cause of the electrocution was not the electric
wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around
and swinging the galvanized iron sheet without taking any precaution, such as looking back toward
the street and at the wire to avoid its contacting said iron sheet, considering the latter’s length of 6
feet. For a better understanding of the rule on remote and proximate cause with respect to injuries,
we find the following citation helpful: chanroblesvirtuallawl ibrary

“A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible,
if there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not have happened but
for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the circumstances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate cause.” (45 C.J.
pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close
to houses is a constant source of danger, even death, especially to persons who having occasion to
be near said wires, do not adopt the necessary precautions. But may be, the City of Manila
authorities and the electric company could get together and devise means of minimizing this
danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may greatly
minimize danger to pedestrians because drivers of motor vehicles may expect danger and slow
down or even stop and take other necessary precaution upon approaching said lanes, so, a similar
way may possibly be found. Since these high voltage wires cannot be properly insulated and at
reasonable cost, they might perhaps be strung only up to the outskirts of the city where there are
few houses and few pedestrians and there step-down to a voltage where the wires carrying the
same to the city could be properly insulated for the better protection of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed and
the complaint filed against the Company is hereby dismissed. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., and Endencia, JJ., concur.

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila
where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de
Yzo[,] at around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as
carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower
Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to its four corners
and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole
[p]latform assembly and the victim to fall down to the basement of the elevator core,
Tower D of the building under construction thereby crushing the victim of death, save his
two (2) companions who luckily jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was
then on board and performing work, fell. And the falling of the [p]latform was due to the
removal or getting loose of the pin which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widow’s prior availment of the benefits from the State
Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as

follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

 3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE

REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE
OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE

OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE
ON THE PART OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE,
AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS

NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL
CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records,
is an exception to the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may
not testify as what he merely learned from others either because he was told or read or heard the
same. Such testimony is considered hearsay and may not be received as proof of the truth of
what he has learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may
be best brought to light and exposed by the test of cross-examiantion.7 The hearsay rule,
therefore, excludes evidence that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty 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.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule:

(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.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the
trial court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the
officer who signed the fire report also testified before the trial court. This Court held that the
report was inadmissible for the purpose of proving the truth of the statements contained in the
report but admissible insofar as it constitutes part of the testimony of the officer who executed
the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report,
such as the summary of the statements of the parties based on their sworn statements
(which were annexed to the Report) as well as the latter, having been included in the first
purpose of the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth
thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be
shown. Evidence as to the making of such statement is not secondary but primary,
for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such a fact."
 When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar as
it proved that certain utterances were made (but not their truth), was effectively removed
from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who made the official
record, considers the matter as an exception to the hearsay rule and makes the entries in
said official record admissible in evidence as prima facie evidence of the facts therein
stated. The underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official
sources. Were there no exception for official statements, hosts of officials would
be found devoting the greater part of their time to attending as witnesses in court
or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would
alike suffer in consequence. For these reasons, and for many others, a certain
verity is accorded such documents, which is not extended to private documents. (3
Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they
will discharge their several trusts with accuracy and fidelity; and, therefore,
whatever acts they do in discharge of their duty may be given in evidence and
shall be taken to be true under such a degree of caution as to the nature and
circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would have
been ripe for determination, and this Court would have agreed with the Court of Appeals
that said report was inadmissible since the aforementioned third requisite was not
satisfied. The statements given by the sources of information of Major Enriquez failed to
qualify as "official information," there being no showing that, at the very least, they were
under a duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of
PO3 Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash.
PO3 Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death beyond
dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building the
day after the incident13 and saw the platform for himself.14 He observed that the platform was
crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to
bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the
fall of the platform was the loosening of the bolt from the chain block. It is claimed that such
portion of the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a
witness is generally not admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the
mere fall of the elevator was a result of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of
an accident or injury will not generally give rise to an inference or presumption that it
was due to negligence on defendant’s part, under the doctrine of res ipsa loquitur, which
means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the
thing or instrumentality speaks for itself, the facts or circumstances accompanying an
injury may be such as to raise a presumption, or at least permit an inference of negligence
on the part of the defendant, or some other person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by
the defendant, that the injury arose from or was caused by the defendant’s want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is
absent or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge
of the instrumentality which causes the injury either knows the cause of the accident or
has the best opportunity of ascertaining it and that the plaintiff has no such knowledge,
and therefore is compelled to allege negligence in general terms and to rely upon the
proof of the happening of the accident in order to establish negligence. The inference
which the doctrine permits is grounded upon the fact that the chief evidence of the true
cause, whether culpable or innocent, is practically accessible to the defendant but
inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a
plaintiff, without knowledge of the cause, reaches over to defendant who knows or
 should know the cause, for any explanation of care exercised by the defendant in respect
of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another
court has said, is a rule of necessity, in that it proceeds on the theory that under the
peculiar circumstances in which the doctrine is applicable, it is within the power of the
defendant to show that there was no negligence on his part, and direct proof of
defendant’s negligence is beyond plaintiff’s power. Accordingly, some court add to the
three prerequisites for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured
party had no knowledge or means of knowledge as to the cause of the accident, or that the
party to be charged with negligence has superior knowledge or opportunity for
explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a building to
the basement while he was working with appellant’s construction project, resulting to his
death. The construction site is within the exclusive control and management of appellant.
It has a safety engineer, a project superintendent, a carpenter leadman and others who are
in complete control of the situation therein. The circumstances of any accident that would
occur therein are peculiarly within the knowledge of the appellant or its employees. On
the other hand, the appellee is not in a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person charged
with negligence; and (3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely
caused the injury is under the exclusive control and management of appellant[;] thus[,]
the second requisite is also present. No contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last requisite is also present. All the requisites
for the application of the rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellant’s negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur,
but argues that the presumption or inference that it was negligent did not arise since it "proved
that it exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for
the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the
elements, the burden then shifts to defendant to explain.26 The presumption or inference may be
rebutted or overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the inference.27 It is not for
the defendant to explain or prove its defense to prevent the presumption or inference from
arising. Evidence by the defendant of say, due care, comes into play only after the circumstances
for the application of the doctrine has been established.1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabro’s sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioner’s employees,
also assails the same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand
to testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the
commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the affiant’s statements which may either be
omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the cause
of her husband’s death. Regrettably, petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the application of res ipsa loquitur, or to
establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the deceased’s
employer damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other laws whose benefits are
administered by the System or by other agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:
 Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall exclude
all other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well
as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled
the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the
death of the employees of the Philex Mining Corporation. Alleging that the mining corporation,
in violation of government rules and regulations, failed to take the required precautions for the
protection of the employees, the heirs of the deceased employees filed a complaint against Philex
Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed
the complaint for lack of jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case
of death have a right of selection or choice of action between availing themselves of the
worker’s right under the Workmen’s Compensation Act and suing in the regular courts
under the Civil Code for higher damages (actual, moral and exemplary) from the
employers by virtue of the negligence or fault of the employers or whether they may avail
themselves cumulatively of both actions, i.e., collect the limited compensation under the
Workmen’s Compensation Act and sue in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32
SCRA 442, ruled that an injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmen’s Compensation Act or to prosecute an
ordinary civil action against the tortfeasor for higher damages but he cannot pursue both
courses of action simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit
under the Civil Code despite having availed of the benefits provided under the Workmen’s
Compensation Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased employees,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino
submitted notices and claims for compensation to the Regional Office No. 1 of the then
Department of Labor and all of them have been paid in full as of August 25, 1967, except
Saturnino Martinez whose heirs decided that they be paid in installments x x x. Such
allegation was admitted by herein petitioners in their opposition to the motion to dismiss
dated may 27, 1968 x x x in the lower court, but they set up the defense that the claims
were filed under the Workmen’s Compensation Act before they learned of the official
report of the committee created to investigate the accident which established the criminal
 negligence and violation of law by Philex, and which report was forwarded by the
Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19,
1967 only x x x.

WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has been
remiss in its contractual obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said violation of government
rules and regulations by Philex, and of its negligence, they would not have sought redress
under the Workmen’s Compensation Commission which awarded a lesser amount for
compensation. The choice of the first remedy was based on ignorance or a mistake of
fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the
petitioners be successful in their bid before the lower court, the payments made under the
Workmen’s Compensation Act should be deducted from the damages that may be
decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper
Mining Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who had
been paid under the Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmen’s Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated
in favor of the new rule that the claimants may invoke either the Workmen’s
Compensation Act or the provisions of the Civil Code, subject to the consequence that
the choice of one remedy will exclude the other and that the acceptance of compensation
under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the
Workmen’s Compensation Act may still sue for damages under the Civil Code on the
basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death benefits
from the State Insurance Fund. Private respondent filed the civil complaint for damages after she
received a copy of the police investigation report and the Prosecutor’s Memorandum dismissing
the criminal complaint against petitioner’s personnel. While stating that there was no negligence
attributable to the respondents in the complaint, the prosecutor nevertheless noted in the
Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception in
Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant
as early as November 25, 1990, the date of the police investigator’s report. The appellee
 merely executed her sworn statement before the police investigator concerning her
personal circumstances, her relation to the victim, and her knowledge of the accident. She
did not file the complaint for "Simple Negligence Resulting to Homicide" against
appellant’s employees. It was the investigator who recommended the filing of said case
and his supervisor referred the same to the prosecutor’s office. This is a standard
operating procedure for police investigators which appellee may not have even known.
This may explain why no complainant is mentioned in the preliminary statement of the
public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent
Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the appellee did not have a chance to
appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights
to present controverting evidence," thus there was no reason for the public prosecutor to
summon the appellee. Hence, notice of appellant’s negligence cannot be imputed on
appellee before she applied for death benefits under ECC or before she received the first
payment therefrom. Her using the police investigation report to support her complaint
filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6,
1991 Memorandum of the Prosecutor’s Office dismissing the criminal complaint for
insufficiency of evidence, stating therein that: "The death of the victim is not attributable
to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more
inclined to believe appellee’s allegation that she learned about appellant’s negligence
only after she applied for and received the benefits under ECC. This is a mistake of fact
that will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights
as well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for
her educational attainment; that she did not know what damages could be recovered from
the death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in
her complaint that her application and receipt of benefits from the ECC were attended by
ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no
authority to hear or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because
as early as November 28, 1990, private respondent was the complainant in a criminal complaint
for "Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6,
1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued
a resolution finding that, although there was insufficient evidence against petitioner’s employees,
the case was "civil in nature." These purportedly show that prior to her receipt of death benefits
from the ECC on January 2, 1991 and every month thereafter, private respondent also knew of
the two choices of remedies available to her and yet she chose to claim and receive the benefits
from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies,
the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy,
in the absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in
nature, the doctrine of election of remedies is designed to mitigate possible unfairness to both
parties. It rests on the moral premise that it is fair to hold people responsible for their choices.
The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double
redress for a single wrong.38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the
rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code
and prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of
one remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights,
but chooses not to assert them. It must be generally shown by the party claiming a waiver
that the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of
it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established
by a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right
exists and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with
an awareness of its consequences. That a waiver is made knowingly and intelligently
must be illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in
her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner
to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant
who ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense
is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the
trial court.
Does the evidence show that private respondent knew of the facts that led to her husband’s death
and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case,
the "fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s
employees, of which private respondent purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. In Floresca, it was the negligence of the
mining corporation and its violation of government rules and regulations. Negligence, or
violation of government rules and regulations, for that matter, however, is not a fact, but a
conclusion of law, over which only the courts have the final say. Such a conclusion binds no one
until the courts have decreed so. It appears, therefore, that the principle that ignorance or mistake
of fact nullifies a waiver has been misapplied in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC.
The police investigation report is dated November 25, 1990, 10 days after the accomplishment of
the form. Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not
aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no
one from compliance therewith. As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent
cannot claim ignorance of this Court’s ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a
person’s ignorance, does not excuse his or her compliance with the laws. The rule in Floresca
allowing private respondent a choice of remedies is neither mandatory nor prohibitory.
Accordingly, her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate
the total amount private respondent ought to receive from the ECC, although it appears from
Exhibit "K"43 that she received P3,581.85 as initial payment representing the accrued pension
from November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit
"K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she
will eventually receive from the ECC is less than the sum of P644,000.00 in total damages
awarded by the trial court is subject to speculation, and the case is remanded to the trial court for
such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from
the trial court'’ award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to
determine whether the award decreed in its decision is more than that of the ECC. Should the
award decreed by the trial court be greater than that awarded by the ECC, payments already
made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other
respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN,
respondents.

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of
First Instance of Negros Occidental 1 by private respondent spouses against petitioner
Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and
fell into an open trench, an excavation allegedly undertaken by PLDT for the installation
of its underground conduit system. The complaint alleged that respondent Antonio
Esteban failed to notice the open trench which was left uncovered because of the
creeping darkness and the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face,
leaving a permanent scar on her cheek, while the respondent husband suffered cut lips.
In addition, the windshield of the jeep was shattered.2

PLDT, in its answer, denies liability on the contention that the injuries sustained by
respondent spouses were the result of their own negligence and that the entity which
should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the manhole and the
conduit system.3 Accordingly, PLDT filed a 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;

(d) January 24, 1980, a resolution was issued denying said motion for
reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by
private respondents;

(f) February 29, 1980, a motion for leave to file a second motion for
reconsideration was filed by private respondents
 (g) March 7, 1980, a second motion for reconsideration was filed by
private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a
second motion for reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa,

reversing the original decision dated September 25, 1979 and setting
aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a
second motion for reconsideration and, consequently, said second motion for
reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time,
provided that a second motion for reconsideration may be presented within fifteen (15)
days from notice of the order or judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed their first motion for
reconsideration on the last day of the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt of the order denying said motion
to file, with leave of court, a second motion for reconsideration. 21 In the present case,
after their receipt on February 22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options. On February 23, 1980,
the remaining one (1) day of the aforesaid reglementary period, they could have filed a
motion for leave of court to file a second motion for reconsideration, conceivably with a
prayer for the extension of the period within which to do so. On the other hand, they
could have appealed through a petition for review on certiorari to this Court within fifteen
(15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a
second motion 'for reconsideration on February 29, 1980, and said second motion for
reconsideration on March 7, 1980, both of which motions were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day
period, the running of which was suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly take further proceedings
on the merits of the case, much less to alter, modify or reconsider its aforesaid decision
and/or resolution. The filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29, 1980 and the subsequent filing
of the motion itself on March 7, 1980, after the expiration of the reglementary period to
file the same, produced no legal effects. Only a motion for re-hearing or reconsideration
filed in time shall stay the final order or judgment sought to be re-examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980
granting private respondents' aforesaid motion for leave and, giving them an extension
of ten (10) days to file a second motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had already expired when private
respondents sought leave to file the same, and respondent court no longer had the
power to entertain or grant the said motion. The aforesaid extension of ten (10) days for
private respondents to file their second motion for reconsideration was of no legal
consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. 24 Necessarily, the discretion of
respondent court to grant said extension for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated
September 25, 1979, became final and executory on March 9, 1980. The subsequent
resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for reconsideration and reversing the
original decision are null and void and cannot disturb the finality of the judgment nor
restore jurisdiction to respondent court. This is but in line with the accepted rule that
once a decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much less revoke
it.25 The decision rendered anew is null and void.26 The court's inherent power to
correct its own errors should be exercised before the finality of the decision or order
sought to be corrected, otherwise litigation will be endless and no question could be
considered finally settled. Although the granting or denial of a motion for reconsideration
involves the exercise of discretion,27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice, reason and
equity.28

Prescinding from the aforesaid procedural lapses into the substantive merits of the
case, we find no error in the findings of the respondent court in its original decision that
the accident which befell private respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to negligent omission on the part of
petitioner PLDT. Such findings were reached after an exhaustive assessment and
evaluation of the evidence on record, as evidenced by the respondent court's resolution
of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If
it had remained on that inside lane, it would not have hit the ACCIDENT
MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was
hit by the jeep swerving from the left that is, swerving from the inside lane.
What caused the swerving is not disclosed; but, as the cause of the
accident, defendant cannot be made liable for the damages suffered by
plaintiffs. The accident was not due to the absence of warning signs, but
to the unexplained abrupt swerving of the jeep from the inside lane. That
may explain plaintiff-husband's insistence that he did not see the
ACCIDENT MOUND for which reason he ran into it.
 Second. That plaintiff's jeep was on the inside lane before it swerved to hit
the ACCIDENT MOUND could have been corroborated by a picture
showing Lacson Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been
covered except the 3 or 4 meters where the ACCIDENT MOUND was
located. Exhibit B-1 shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not in such a way as
to allow the outer lane to be freely and conveniently passable to vehicles.
The situation could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT MOUND facing
south was taken.

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-

husband claimed. At that speed, he could have braked the vehicle the
moment it struck the ACCIDENT MOUND. The jeep would not have
climbed the ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have been running quite fast. If the
jeep had been braked at 25 kilometers an hour, plaintiff's would not have
been thrown against the windshield and they would not have suffered their
injuries.

Fourth. If the accident did not happen because the jeep was running quite
fast on the inside lane and for some reason or other it had to swerve
suddenly to the right and had to climb over the ACCIDENT MOUND, then
plaintiff-husband had not exercised the diligence of a good father of a
family to avoid the accident. With the drizzle, he should not have run on
dim lights, but should have put on his regular lights which should have
made him see the ACCIDENT MOUND in time. If he was running on the
outside lane at 25 kilometers an hour, even on dim lights, his failure to see
the ACCIDENT MOUND in time to brake the car was negligence on his
part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3
feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in
time, he would not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have driven his jeep
on the night of the accident so as to avoid hitting the ACCIDENT
MOUND.29

The above findings clearly show that the negligence of respondent Antonio Esteban
was not only contributory to his injuries and those of his wife but goes to the very cause
of the occurrence of the accident, as one of its determining factors, and thereby
precludes their right to recover damages.30 The perils of the road were known to,
hence appreciated and assumed by, private respondents. By exercising reasonable
care and prudence, respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was some alleged
negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the
only purpose of said signs was to inform and warn the public of the presence of
excavations on the site. The private respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but the unexplained sudden swerving of
the jeep from the inside lane towards the accident mound. As opined in some quarters,
the omission to perform a duty, such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when the doing of the said omitted act
would have prevented the injury.31 It is basic that private respondents cannot charge
PLDT for their injuries where their own failure to exercise due and reasonable care was
the cause thereof. It is both a societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection. Furthermore, respondent Antonio
Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding
the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the presence and location
of the excavations there. It was his negligence that exposed him and his wife to danger,
hence he is solely responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original
decision that there was insufficient evidence to prove any negligence on the part of
PLDT. We have for consideration only the self-serving testimony of respondent Antonio
Esteban and the unverified photograph of merely a portion of the scene of the accident.
The absence of a police report of the incident and the non-submission of a medical
report from the hospital where private respondents were allegedly treated have not even
been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January

24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the
accident occurred, the Court can only rely on the testimonial evidence of
plaintiffs themselves, and such evidence should be very carefully
evaluated, with defendant, as the party being charged, being given the
benefit of any doubt. Definitely without ascribing the same motivation to
plaintiffs, another person could have deliberately engineered a similar
accident in the hope and expectation that the Court can grant him
substantial moral and exemplary damages from the big corporation that
defendant is. The statement is made only to stress the disadvantageous
position of defendant which would have extreme difficulty in contesting
such person's claim. If there were no witness or record available from the
police department of Bacolod, defendant would not be able to determine
for itself which of the conflicting testimonies of plaintiffs is correct as to the
report or non-report of the accident to the police department.32
A person claiming damages for the negligence of another has the burden of proving the
existence of such fault or negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent evidence.33 Whosoever
relies on negligence for his cause of action has the burden in the first instance of
proving the existence of the same if contested, otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980
and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on
September 25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.

G.R. No. L-40452 October 12, 1989

GREGORIO GENOBIAGON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Mario D. Ortiz for petitioner.

GRIÑO-AQUINO, J.:

This is a petition for review of the Court of Appeals' decision in CA-G.R. No. 09949-CR,
dated October 10, 1974, affirming the conviction of the petitioner of the crime of
homicide thru reckless imprudence.

As found by the Court of Appeals, the facts of this case are:

On December 31,1959, at about 7:30 o'clock in the evening, a rig driven

by appellant bumped an old woman who was crossing T. Padilla St., Cebu
City, at the right side of T. Padilla Market. The appellant's rig was following
another at a distance of two meters. The old woman started to cross when
the first rig was approaching her, but as appellant's vehicle was going so
fast not only because of the steep down-grade of the road, but also
because he was trying to overtake the rig ahead of him, the appellant's rig
bumped the old woman, who as a consequence, fell at the middle of the
road. The appellant continued to drive on, but a by-stander, one Vicente
Mangyao, who just closed his store in market in order to celebrate the
coming of the New Year, and who saw the incident right before him,
shouted at the appellant to stop. He ran after appellant when the latter
refused to stop. Overtaking the appellant, Mangyao asked him why he
bumped the old woman and his answer was, 'it was the old woman that
bumped him.' The appellant went back to the place where the old woman
was struck by his rig. The old woman was unconscious, and the food and
 viands she was carrying were scattered on her body. The victim was then
loaded in a jeep and brought to the hospital where she died three hours
later (Exh. C). The findings after an autopsy are as follows:

Contusion with Hematoma Left, Frontal and Occipito-Parietal

Regionas Fracture Occipito-Parietal Bone Cerebral
Hemorrhage.

The deceased was an eighty-one-year old woman named Rita B. Cabrera.

(pp. 31-32, Rollo.)

Petitioner was charged with homicide thru reckless imprudence in the Court of First
Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the
felony charged and sentenced him to "suffer an indeterminate penalty of three (3)
months of arresto mayor as minimum to one (1) year, one (1) month and eleven (11)
days of prision correccional as maximum, to indemnify the heirs of Rita Banzon Cabrera
the sum of P6,000 with subsidiary imprisonment in case of insolvency, not to exceed 1/3
of the principal penalty and to pay the costs" (p. 3, Appellant's Brief, p. 56, Rollo).

The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October

10,1974,conviction of the accused but increased his civil liability to P12,000. The
dispositive portion of its decision reads:

WHEREFORE, finding no error in the judgment appealed from except in

the amount of indemnity to be paid to the heirs of the deceased, Rita B.
Cabrera, which is the sum of P6,000.00 with subsidiary imprisonment in
case of insolvency which should be raised to P12,000.00 (People vs.
Pantoja, G.R. No. L-18793, October 11, 1968, 25 SCRA 468) but without
subsidiary imprisonment in case of insolvency, the same should be, as it is
hereby affirmed in all other respects with costs. (P. 37, Rollo.)

After his motion for reconsideration of the Court of Appeals' decision was denied, he
filed a petition for review in this Court, alleging that the Court of Appeals erred:

1. in not finding that the reckless negligence of the victim was the
proximate cause of the accident which led to her death;

2. in not acquitting the petitioner on the ground of reasonable doubt; and

3. in unjustly increasing the civil liability of the petitioner from P6,000.00 to

P12,000.00, although the circumstances of the victim and the accused
(petitioner) do not warrant such increase.

It is quite evident that all the issues raised in the petition for review are factual. Well-
entrenched in our jurisprudence is the rule that findings of fact of the trial court and the
Court of Appeals are binding upon us (Bernardo vs. Bernardo, 101 SCRA 351; Vda. De
Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).

The alleged contributory negligence of the victim, if any, does not exonerate the
accused. "The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the negligence of
another to evade the effects of his own negligence (People vs. Orbeta, CA-G.R. No.
321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).

The petitioner's contention that the Court of Appeals unjustly increased his civil liability
to P12,000, is devoid of merit. The prevailing jurisprudence in fact provides that
indemnity for death in homicide or murder is P30,000 (People vs. De la Fuente,
[1983]126 SCRA 518; People vs. Centeno, 130 SCRA 198). Accordingly, the civil
liability of the petitioner is increased to P30,000.

WHEREFORE, the appealed decision is affirmed with modification as to the civil liability
of the petitioner which is hereby increased to P30,000. Costs against petitioner.

SO ORDERED.

G.R. No. L-40452 October 12, 1989

GREGORIO GENOBIAGON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Mario D. Ortiz for petitioner.

GRIÑO-AQUINO, J.:

This is a petition for review of the Court of Appeals' decision in CA-G.R. No. 09949-CR,
dated October 10, 1974, affirming the conviction of the petitioner of the crime of
homicide thru reckless imprudence.

As found by the Court of Appeals, the facts of this case are:

On December 31,1959, at about 7:30 o'clock in the evening, a rig driven

by appellant bumped an old woman who was crossing T. Padilla St., Cebu
City, at the right side of T. Padilla Market. The appellant's rig was following
another at a distance of two meters. The old woman started to cross when
the first rig was approaching her, but as appellant's vehicle was going so
fast not only because of the steep down-grade of the road, but also
because he was trying to overtake the rig ahead of him, the appellant's rig
bumped the old woman, who as a consequence, fell at the middle of the
 road. The appellant continued to drive on, but a by-stander, one Vicente
Mangyao, who just closed his store in market in order to celebrate the
coming of the New Year, and who saw the incident right before him,
shouted at the appellant to stop. He ran after appellant when the latter
refused to stop. Overtaking the appellant, Mangyao asked him why he
bumped the old woman and his answer was, 'it was the old woman that
bumped him.' The appellant went back to the place where the old woman
was struck by his rig. The old woman was unconscious, and the food and
viands she was carrying were scattered on her body. The victim was then
loaded in a jeep and brought to the hospital where she died three hours
later (Exh. C). The findings after an autopsy are as follows:

Contusion with Hematoma Left, Frontal and Occipito-Parietal

Regionas Fracture Occipito-Parietal Bone Cerebral
Hemorrhage.

The deceased was an eighty-one-year old woman named Rita B. Cabrera.

(pp. 31-32, Rollo.)

Petitioner was charged with homicide thru reckless imprudence in the Court of First
Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the
felony charged and sentenced him to "suffer an indeterminate penalty of three (3)
months of arresto mayor as minimum to one (1) year, one (1) month and eleven (11)
days of prision correccional as maximum, to indemnify the heirs of Rita Banzon Cabrera
the sum of P6,000 with subsidiary imprisonment in case of insolvency, not to exceed 1/3
of the principal penalty and to pay the costs" (p. 3, Appellant's Brief, p. 56, Rollo).

The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October

10,1974,conviction of the accused but increased his civil liability to P12,000. The
dispositive portion of its decision reads:

WHEREFORE, finding no error in the judgment appealed from except in

the amount of indemnity to be paid to the heirs of the deceased, Rita B.
Cabrera, which is the sum of P6,000.00 with subsidiary imprisonment in
case of insolvency which should be raised to P12,000.00 (People vs.
Pantoja, G.R. No. L-18793, October 11, 1968, 25 SCRA 468) but without
subsidiary imprisonment in case of insolvency, the same should be, as it is
hereby affirmed in all other respects with costs. (P. 37, Rollo.)

After his motion for reconsideration of the Court of Appeals' decision was denied, he
filed a petition for review in this Court, alleging that the Court of Appeals erred:

1. in not finding that the reckless negligence of the victim was the
proximate cause of the accident which led to her death;

2. in not acquitting the petitioner on the ground of reasonable doubt; and

 3. in unjustly increasing the civil liability of the petitioner from P6,000.00 to
P12,000.00, although the circumstances of the victim and the accused
(petitioner) do not warrant such increase.

It is quite evident that all the issues raised in the petition for review are factual. Well-
entrenched in our jurisprudence is the rule that findings of fact of the trial court and the
Court of Appeals are binding upon us (Bernardo vs. Bernardo, 101 SCRA 351; Vda. De
Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).

The alleged contributory negligence of the victim, if any, does not exonerate the
accused. "The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the negligence of
another to evade the effects of his own negligence (People vs. Orbeta, CA-G.R. No.
321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).

The petitioner's contention that the Court of Appeals unjustly increased his civil liability
to P12,000, is devoid of merit. The prevailing jurisprudence in fact provides that
indemnity for death in homicide or murder is P30,000 (People vs. De la Fuente,
[1983]126 SCRA 518; People vs. Centeno, 130 SCRA 198). Accordingly, the civil
liability of the petitioner is increased to P30,000.

WHEREFORE, the appealed decision is affirmed with modification as to the civil liability
of the petitioner which is hereby increased to P30,000. Costs against petitioner.

SO ORDERED.

G.R. No. 1719 January 23, 1907

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant.

F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to
the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used
in this work. The defendant has proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the
rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to
prevent them from slipping off. According to the testimony of the plaintiff, the men were either
in the rear of the car or at its sides. According to that defendant, some of them were also in front,
hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the
car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was
afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of the
construction and quality of the track proves that if was up to the general stranded of tramways of
that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches
thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the
stringers the parallel with the blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide and the two
inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no side
pieces or guards on the car; that where no ends of the rails of the track met each other and also
where the stringers joined, there were no fish plates. the defendant has not effectually overcome
the plaintiff's proof that the joints between the rails were immediately above the joints between
the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling
under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort was made to
repair the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of
the track, varying from one half inch to one inch and a half, was therafter apparent to the eye,
and a fellow workman of the plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece,
resetting the block under the stringer and renewing the tie, but otherwise leaving the very same
timbers as before. It has not proven that the company inspected the track after the typhoon or had
any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully
build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the
roadway as soon as the depression in it became visible. It is upon the failure of the defendant to
repair the weakened track, after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them is the standard
of duty which we shall establish in our jurisprudence on the part of employees toward
employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed
to put these relations on a fair basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we find no difficulty in so applying
the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the

provisions of the Penal Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of

regulations, shall cause an injury which, had malice intervened, would have constituted a
crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.

It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for not repairing the tract,
and on his prosecution a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject
to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:

A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.
 xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.

As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such
as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.

An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third
person criminally liable whose prosecution must be a condition precedent to the enforcement of
the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the criminal act from which liability
arises, and his obligation under the civil law and its enforcement in the civil courts is not barred
thereby unless by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders it unnecessary
to finally determine here whether this subsidiary civil liability in penal actions survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the law, the
consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were 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. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage. while that to that injured bystander would originate in
the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on
article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood
in two difference senses; either as culpa, substantive and independent, which on account
of its origin arises in an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or as already existed,
which can not be presumed to exist without the other, and which increases the liability
arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this
book of the code is devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those provisions relating to
the other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8,
p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being the
culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter
XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading
French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to
the discovery of a third basis for liability in an article of he French Code making the possessor of
any object answerable for damage done by it while in his charge. Our law having no counterpart
of this article, applicable to every kind of object, we need consider neither the theory growing
out of it nor that of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case in the
contractual obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe
appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could not have
occurred; consequently the negligence of the defendant is established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to
his employment and, as such, one assumed by him. It is evident that this can not be the case if
the occurrence was due to the failure to repair the track or to duly inspect, it for the employee is
not presumed to have stipulated that the employer might neglect his legal duty. Nor may it be
excused upon the ground that the negligence leading to the accident was that of a fellow-servant
of the injured man. It is not apparent to us that the intervention of a third person can relieve the
defendant from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since
been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting rid of it; for instance, the New
York State legislature of 1906 did away with it in respect to railroad companies, and had in hand
a scheme for its total abolition. It has never found place in the civil law of continental Europe.
(Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June
28, 1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference
from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than
two days. A man may easily walk along a railway without perceiving a displacement of the
underlying timbers. The foreman testified that he knew the state of the track on the day of the
accident and that it was then in good condition, and one Danridge, a witness for the defendant,
working on the same job, swore that he never noticed the depression in the track and never saw
any bad place in it. The sagging of the track this plaintiff did perceive, but that was reported in
his hearing to the foreman who neither promised nor refused to repair it. His lack of caution in
continuing at his work after noticing the slight depression of the rail was not of so gross a nature
as to constitute negligence, barring his recovery under the severe American rule. On this point
we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the
cause of the one rail being lower than then other" and "it does not appear in this case that the
plaintiff knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section
497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the
United States in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in
this way, but were expressly directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition frequently made known to
all the gang against walking by the side of the car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the general order
being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its primary cause.
This conclusion presents sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be
taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his
injury, provided his negligence was slight as compared with that of the defendant, and some
others have accepted the theory of proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of
the United States thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in
the person injured; subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that the defendant
might, by the exercise of reasonable care and prudence, have avoided the consequences
of the injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent
or that the negligence of the plaintiff was the immediate cause of the casualty or that the accident
was due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38
Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown
therefrom and killed by the shock following the backing up of the engine. It was held that the
management of the train and engine being in conformity with proper rules of the company,
showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other,
because the act of the deceased in driving over level ground with unobstructed view in front of a
train running at speed, with the engine whistle blowing was the determining cause of the
accident. It is plain that the train was doing nothing but what it had a right to do and that the only
fault lay with the injured man. His negligence was not contributory, it was sole, and was of such
an efficient nature that without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff
sustaining damages was not free from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building
was held liable for not furnishing protection to workmen engaged in hanging out flags, when the
latter must have perceived beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed
to his injury as one of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident
could not have happened, but that the contributory negligence of the injured man had the effect
only of reducing the damages. The same principle was applied in the case of Recullet, November
10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title
Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail,
363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English
theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil
law. Elsewhere we find this practice embodied in legislation; for instance, section 2 of article
2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured or
in the part of some one else, the indemnification shall be reduced in the first case, and in
the second case it shall be appropriated in proportion to such fault or negligence as
provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally with the person principally
responsible. The principle of proportional damages appears to be also adopted in article 51 of the
Swiss Code. Even in the United States in admirality jurisdictions, whose principles are derived
from the civil law, common fault in cases of collision have been disposed of not on the ground of
contradictor negligence, but on that of equal loss, the fault of the one part being offset against
that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in
favor of the vessel sustaining the greater loss against the other for the excess of her damages over
one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the
civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not the wrong of the one is set off against the wrong of the
other; it that the law can not measure how much of the damage suffered is attributable to
the plaintiff's own fault. If he were allowed to recover, it might be that he would obtain
from the other party compensation for hiss own misconduct. (Heil vs. Glanding, 42 Penn.
St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has
no scales to determine in such cases whose wrongdoing weighed most in the compound
that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax
the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive,
through the device of granting new trials, unless reduced damages are stipulated for, amounting
to a partial revision of damages by the courts. It appears to us that the control by the court of the
subject matter may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their respective
responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of its
tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid
down in the judgment the most consistent with the history and the principals of our law in these
Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be between the
accident and the injury, between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent of it, but contributing
under review was the displacement of the crosspiece or the failure to replace it. this produced the
event giving occasion for damages — that is, the shinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece been out of
place wholly or partly thorough his act of omission of duty, the last would have been one of the
determining causes of the event or accident, for which he would have been responsible. Where
he contributes to the principal occurrence, as one of its determining factors, he can not recover.
Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover
the amount that the defendant responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage
incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we
deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct
judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of
both instances, and ten days hereafter let the case be remanded to the court below for proper
action. So ordered.

Arellano, C.J. Torres and Mapa, JJ., concur.

Separate Opinions

WILLARD, J., dissenting:

The knowledge which the plaintiff had in regard to the condition of the track is indicated by his
own evidence. He testified, among other things, as follows:

Q. Now, describe the best you can the character of the track that ran from the place
where you loaded the irons from the barge up to the point where you unloaded them on
the ground.

A. — Well, it was pretty bad character.

xxx xxx xxx

Q. And you were familiar with the track before that its construction?

A. Familiar with what?

Q. Well, you have described it here to the court.

 A. Oh, yes; I knew the condition of the track.

Q. You knew its conditions as you have described it here at the time you were
working around there?

A. Yes, sir.

xxx xxx xxx

Q. And while operating it from the side it was necessary for you to step from board to
board on the cross-ties which extended out over the stringers?

A. Yes, sir.

Q. And these were very of irregular shape, were they not?

A. They were in pretty bad condition.

xxx xxx xxx

Q. And it was not safe to walk along on the outside of these crosspieces?

A. It was safe if the car stayed on the track. We didn't try to hold the load on. We
tried to hold the car back, keep it from going too fast, because we knew the track was in
bad condition just here, and going down too fast we could be liable to run off most any
time.

Q. You knew the track was in bad condition when you got hold?

A. Sure, it was in bad condition.

xxx xxx xxx

Q. And the accident took place at that point where you believed it to be so dangerous?

A. Yes, sir.

Q. But you knew it was dangerous?

A. Why certainly, anybody could see it; but a workingman had to work in those days
or get arrested for a vag here in Manila.

The court below, while it found that the plaintiff knew in a general way of the bad condition of
the track, found that he was not informed of the exact cause of the accident, namely, the washing
away of the large crosspiece laid upon the ground or placed upon the posts as the foundation
upon which the stripers rested. This finding of fact to my mind is plainly and manifestly against
the weight of the evidence. Ellis, a witness for the plaintiff, testified that on the morning of the
accident he called the attention of McKenna, the foreman, to the defective condition of the track
at his precise point where the accident happened. His testimony in part is as follows:

A. I called Mr. McKenna. I showed him the track and told him I didn't think it was
safe working, and that if he didn't fix it he was liable to have an accident; I told him I
thought if he put fish plates on it would it. He said, you keep on fishing around here for
fish plates and you will be fishing for another job the first thing you know." He says,
"You see to much."

xxx xxx xxx

Q. Who else was present at the time you had this conversation with Mr. McKenna?

A. Well, at that conversation as far as I can remember, we were all walking down the
track and I know that McCoy and Mr. Blakes was along at the time. I remember them
two, but we were all walking down the track in a bunch, but I disremember them.

xxx xxx xxx

Q. Was that the exact language that you used, that you wanted some fish plates put
on?

A. No, sir: I told him to look at that track. I says get some fish plates. I says if there
was any fish plates we would fix that.

Q. What did the fish plates have to do with that?

A. It would have strengthened that joint.

Q. Why didn't you put the 8 by 8 which was washed crossways in place?

A. That would have been taken the raising of the track and digging out along this upright
piece and then putting it up again.

The plaintiff himself testified that he was present with Ellis at the time this conversation was had
with McKenna. It thus appears that on the morning in question the plaintiff and McKenna were
standing directly over the place where the accident happened later in the day. The accident was
caused, as the court below found, by the washing away or displacement of the large 8 by 8 piece
of timber. This track was constructed as all other tracks are, all of it open work, with no floor
over the ties, and of course see the ground and the entire construction of the road, including these
large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these stringers, and the
rails placed on the ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was
out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more
markedly apparent even than it would appear from the testimony of the defendant's witnesses.
According to the plaintiff's witnesses, the water at high tide reached the place in question and
these 8 by 8 pieces were therefore not laid upon the ground but were placed upon posts driven
into the ground, the height of the posts at this particular place being, according to the testimony
of the plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis testified that
the reason why they did not put the 8 by 8 back in its place was because that would have required
the raising up of the track and digging out along this upright piece and then putting it up again.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew
the exact condition of the track and was informed and knew of the defect which caused the
accident. There was no promise on the part of McKenna to repair the track.

Under the circumstances the plaintiff was negligent in placing himself on the side of the car
where he knew that he would be injured by the falling of the rails from the car when they
reached this point in the track where the two stringers were without any support of their ends. He
either should have refused to work at all or he should have placed himself behind the car, on the
other side of it, or in front of it, drawing it with a rope. He was guilty of contributory negligence
and is not entitled to recover.

It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability
of the defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.

In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this
class of cases is that the negligence of the defendant did not alone cause the accident. If nothing
but that negligence had existed, the accident would not have happened and, as I understand it, in
every case in which contradictory negligence is a defense it is made so because the negligence of
the plaintiff is the cause of the accident, to this extent, that if the plaintiff had not been negligent
the accident would not have happened, although the defendant was also negligent. In other
words, the negligence of the defendant is not alone sufficient to cause the accident. It requires
also the negligence of the plaintiff.

There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule
of the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire."
(Digest, book, 50, tit. 17, rule 203.)

The partidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5,
partida 3.)

And they even said that when a man received an injury through his own acts, the
grievance should be against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March,
1876, and the 6th of October, 1882. These cases do not throw much light upon the subject. The
judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point.
In that case the supreme court of Spain said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence
is a source of obligation when between such negligence and the injury thereby caused
there exists the relation of cause and effect; but in the injury caused should not be the
result of acts or omissions of a third party, the latter has no obligation to repair the same,
even though such acts or omissions were imprudent or unlawful, and much less when it is
shown that the immediate cause of the injury was the negligence of the injured person
party himself.

Found the reasons above stated, and the court below having found that the death of the
deceased was due to his own imprudence, and not therefore due to the absence of a guard
at the grade crossing where the accident occurred, it seems clear that court in acquitting
the railroad company of the complaint filed by the widow did not violate the provisions
of the aforesaid article of the Civil Code.

For the same reason, although the authority granted to the railroad company to open the
grade crossing without a special guard was nullified by the subsequent promulgation of
the railroad police law and the regulations for the execution of the same, the result would
be identical, leaving one of the grounds upon which the judgment of acquittal is based, to
wit, that the accident was caused by the imprudence of the injured party himself,
unaffected.

It appears that the accident in this case took place at a grade crossing where, according to the
claim of the plaintiff, it was the duty of the railroad company to maintain husband was injured by
a train at this crossing, his negligence contributing to the injury according to the ruling of the
court below. This judgment, then, amounts to a holding that a contributory negligence is a
defense according to the law of Spain. (See also judgment of the 21st of October, 1903, vol. 96
p. 400, Jurisprudencia Civil.)

Although in the Civil Code there is no express provision upon the subject, in the Code of
Commerce there is found a distinct declaration upon it in reference to damages caused by
collission at sea. Article 827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, each one shall for liable for his own
damages, and both shall jointly responsible for the loss and damages suffered to their
cargoes.

That article is an express recognition of the fact that in collision cases contributory negligence is
a defense,
I do not think that this court is justified in view of the Roman law, of the provisions of the
Partidas, of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the
absence of any declaration upon the subject in the Civil Code, in saying that it was the intention
rule announced in the majority opinion, a rule dimetrically opposed to that put in force by the
Code of Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I
express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Carson, J., concurs.

.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the Decision 1 promulgated on 27 July 1988 and the
Resolution dated 14 March 1989 2 of the respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in toto the
decision of Branch XXI of the Regional Trial Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus Gotesco
Investment Corporation", and denied petitioner's motion to reconsider the same.

The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto the sum of P10,000.00 as moral damages
and the plaintiff Gloria E. Chatto the sum of P49,050.00 as actual and consequential damages, P75,000.00 as moral damages and
P20,000.00 as attorney's fees, plus the cost of the suit. These awards, except for the attorney's fees, were to earn interest at the rate of
twelve per cent (12%) per annum beginning from the date the complaint was filed, 16 November 1982, until the amounts were fully paid.

The antecedent facts, as found by the trial court and affirmed by the respondent Court, are summarized by the latter in the challenged
decision as follows:

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15-year old daughter,
plaintiff Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco
Investment Corporation. They bought balcony tickets but even then were unable to find seats considering the number
of people patronizing the movie. Hardly ten (10) minutes after entering the theater, the ceiling of its balcony collapsed.
The theater was plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl
under the fallen ceiling. As soon as they were able to get out to the street they walked the nearby FEU Hospital where
they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June 5 to
June 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr.
Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:

Physical injuries:

Contusions:
 forehead and drental region, scalp left with hematoma; chest anterior upper
bilateral; back right, scapular region; back, mid-portion, thoraco-lumbar
regions, bilateral

Abrasions:

back lumbar region, horizontal, across midline, from left to right; hand right,
palm, near wrist; hand left, index finger, dorsum, proximal phalanx.

Conclusion, cerebral.

X-Ray — Skull; Thoraco-lumbar

region — All negative.

CONCLUSIONS

1. Physical injuries rioted on the subject.

2. That under normal condition in the absence of

complication, said physical injuries will require
medical attendance and/or incapacitate the subject for
a period of from two to four weeks.

On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate (Exh. "D") of Dr. Brion are as
follows:

xxx xxx xxx

Physical injuries:

Lacerated wounds:

scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

Shoulder and upper third, arm right, posterior aspect, linear; backright,
scapular region, two in number, linear; elbow right, posterior aspect;
forearm right, anterior aspect, middle third.

Concusion (sic), cerebral.

X-Ray — Skull — Negative.

Cervical spines Straightening of cervical spine, probably to muscular spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of complication, said physical injuries will require
medical attendance and/or incapacitate the subject for a period of from two to four weeks.

Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for further
treatment (Exh "E"). She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in the U.S. for about
three (3) months during which time she had to return to the Cook County Hospital five (5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure.
It maintained that its theater did not suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3
In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court said:

It has been established thru the uncontradicted testimony of Mrs. Chatto that during the chaos and confusion at the
theater she lost a pair of earrings worth P2,500 and the sum of P1,000.00 in cash contained in her wallet which was
lost; and that she incurred the following expenses: P500.00 as transportation fare from Cebu City to Manila on the first
leg of her trip to the United States; P350.00 for her passport; and P46,978.00 for her expense relative to her treatment
in the United States, including the cost of a round-trip ticket (P11,798.00) hospital and medical bills and other attendant
expenses. The total is P51,328.00, which is more than the sum of P49,050.00 claimed in the complaint, hence should
be reduced accordingly.

The same testimony has also established that Mrs. Chatto contracted to pay her counsel the sum of P20,000.00, which
this court considers reasonable considering, among other things, the professional standing of work (sic) involved in the
prosecution of this case. Such award of attorney's fees is proper because the defendant's omission to provide the
plaintiffs proper and adequate safeguard to life and limb which they deserved as patrons to (sic) its theater had
compelled the plaintiffs to hire the services of a counsel, file this case and prosecute it, thus incurring expenses to
protect their interest.

The plaintiffs are entitled to moral damages, which are the direct and proximate result of the defendants gross
negligence and omission. Such moral damages include the plaintiffs' physical suffering, mental anguish, fright and
serious anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain, anguish, fright and anxiety than
her daughter Lina Delza, such damages are compounded by the presence of permanent deformities on her body
consisting of a 6-inch scar on the head and a 2-inch scar on one arm. The court believes that the sum of P75,000.00
for plaintiff Gloria E. Chatto and the sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be reasonable. 4

Petitioner submitted before the respondent Court the following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE PRESENTED BY

PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS AND
CERTIFICATIONS OF THE CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF OCCUPANCY
ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE BALCONY COLLAPSED DUE TO SOME
STRUCTURAL CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT OF GOD OR
FORCE MAJEURE.

III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY NEGLIGENT IN FAILING
"TO CAUSE PROPER AND ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE BUILDING." 5

In its decision, respondent Court found the appeal to be without merit. As to the first assigned error, it ruled that the trial court did not err in
admitting the exhibits in question in the light of the ruling in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to object at the
proper time Thus:

Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the Administrator of UST Hospital
expressing their willingness to guaranty the payment of the hospital bills of the plaintiffs-appellees was not objected to
in trial court for lack of authentication. It is too late to raise that objection on appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook County Hospital. It may be true that
the doctors who prepared them were not presented as witnesses. Nonetheless, the records will show that counsel for
defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the matter especially the content of Exhibits "F"
to F-13", Consequently, defendant-appellant is estopped from claiming lack of opportunity to verify their textual truth.
Moreover, the record is full of the testimony of plaintiffs-appellees on the injuries they sustained from the collapse of the
ceiling of defendant-appellant's theater. Their existence is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-appellee Gloria Chatto from the
Philippines to the U.S. (Manila-Chicago-Manila). Certainly, this is relevant evidence on whether or not she actually
travelled (sic) to the U.S. for further medical treatment. Defendant-appellant's contention that the best evidence on the
issue is her passport is off the mark. The best evidence rule applies only if the contents of the writing are directly in
issue. In any event, her passport is not the only evidence on the matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S in her own handwriting. Defendant-
appellant's objection that it is self serving goes to the weight of the evidence. The truth of Exh. "G" could be and should
have been tested by cross examination. It cannot be denied however that such expenses are within the personal
knowledge of the witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of her treatment in the U.S.
Defendant-appellant objects to its admission because it is self-serving. The objection is without merit in view of the
evidence on record that plaintiff-appellee Gloria Chatto sustained head injuries from the collapse of the ceiling of
 defendant-appellant's theater. In fact, counsel for defendant-appellant cross examined the said witness on the medical
finding of Cook County Hospital that she was suffering from neck muscle spasm. (TSN, April 17, 1984, p. 11) The
wearing of a surgical neckwear has proper basis.

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use of her surgical neckwear.
Defendant-appellant objects to this exhibit its hearsay because the photographer was not presented as a witness. The
objection is incorrect. In order that photographs or pictures may be given in evidence, they must be shown to be a true
and faithful representation of the place or objects to which they refer. The photographs may be verified either by the
photographer who took it or by any person who is acquainted with the object represented and testify (sic) that the
photograph faithfully represents the object. (Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80 citing New
York Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was identified by plaintiff appellee Gloria Chatto. 7

As to the, other assigned errors, the respondent Court ruled:

The lower court did not also err in its finding that the collapse of the ceiling of the theater's balcony was due to
construction defects and not to force majeure. It was the burden defendant-appellant to prove that its theater did not
suffer from any structural defect when it was built and that it has been well maintained when the incident occurred. This
is its Special and Affirmative Defense and it is incumbent on defendant-appellant to prove it. Considering the collapse
of the ceiling of its theater's balcony barely four (4) years after its construction, it behooved defendant-appellant to
conduct an exhaustive study of the reason for the tragic incident. On this score, the effort of defendant-appellant
borders criminal nonchalance. Its witness Jesus Lim Ong testified:

Atty. Barcelona:

Q By the way, you made mention a while ago that your staff of engineer and architect used to
make round inspection of the building under your construction the of these buildings is Gotesco
Cinema 1 and 2, subject matter of this case, and you also made a regular round up or inspection
of the theater. Is that right?

A Yes, sir.

Q And do you personally inspect these buildings under your construction?

A Yes, whenever I can.

Q In the case of Gotesco Cinema 1 and 2, had you any chance to inspect this building?

A Yes, sir.

Q Particularly in the months of May and June of 1982?

A Yes, in that (sic) months.

Q Now, you said also that sometime in June 1982 you remember that one of these theaters.

Atty. Barcelona: continuing

particularly Superama 1 the ceiling had collapsed?

A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

A There was really nothing, I cannot explain. I could not give any reason why the ceiling
collapsed.

Q Could it not be due to any defect of the plant?

 Atty. Florido:

Already answered, Your Honor, he could not give any reason.

COURT:

Objection sustained.

Atty. Barcelona:

Q When that incident happened, did the owner Gotesco Investment Corporation went (sic) to you
to call your attention?

A Yes, sir.

Atty. Florido:

Your Honor, we noticed (sic) series of leading questions, but this time we object.

COURT:

Sustained.

Atty. Barcelona;

Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that one of the
cinemas you maintained collopsed?

A He asked for a thorough investigation.

Q And as a matter of fact as asked you to investigate?

A Yes, sir.

Q Did you come out with any investigation report.

A There was nothing to report.

Clearly, there was no authoritative investigation conducted by impartial civil and structural engineers on the cause of
the collapse of the theater's ceiling, Jesus Lim Ong is not an engineer, He is a graduate of architecture from the St.
Louie (sic) University in Baguio City. It does not appear he has passed the government examination for architects.
(TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong about the cause of the collapse of the ceiling of their
theater cannot be equated, as an act, of God. To sustain that proposition is to introduce sacrilege in our jurisprudence.
8

Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed this petition assailing therein the
challenged decision on the following grounds:

1. The basis of the award for damages stems from medical reports issued by private physicians of local hospitals
without benefit of cross-examination and more seriously, xerox copies of medical findings issued by American doctors
in the United States without the production of originals, without the required consular authentication for foreign
documents, and without the opportunity for cross-examination.

2. The damage award in favor of respondents is principally, made depend on such unreliable, hearsay and incompetent
evidence for which an award of more than P150,000.00 in alleged actual, moral and I "consequential" damages are
awarded to the prejudice of the right of petitioner to due process. . . .

3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of the building was not seriously
considered by the Court of Appeals, considering that frequent inspections and maintenance precautions had to be
observed by hired engineers of petitioner, which enjoys an unsullied reputation in the business of exhibiting movies in a
chain of movie houses in Metro Manila. 9
After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this Court resolved to give due course to the
petition and required the parties to file their respective Memoranda. Subsequently, private respondents, in a motion, prayed for leave to
adopt their Comment as their Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum on 10 January
1990.

The petition presents both factual and legal issues. The first relates to the cause of the collapse of the ceiling while the latter involves the
correctness of the admission of the exhibits in question.

We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to reviewing and revising
the errors of law imputed to it, its findings of fact being conclusive, 10 except only where a case is shown as coming under the accepted
exception. 11 None of the exceptions which this Court has painstakingly summarized in several cases 12 has been shown to exist in this
petition. Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to force majeure is not even founded on facts
because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling collapsed." Having interposed it as
a defense, it had the burden to prove that the collapse was indeed caused by force majeure. It could not have collapsed without a cause.
That Mr. Ong could not offer any explanation does not imply force majeure. As early as eighty-five (85) years ago, this Court had the
occasion to define force majeure. In Pons y Compañia vs. La Compañia Maritima 13 this Court held:

An examination of the Spanish and American authorities concerning the meaning of force majeure shows that the
jurisprudence of these two countries practically agree upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as —

Inevitable accident or casualty; an accident produced by any physical cause which is irresistible;
such as lightning. tempest, perils of the sea, inundation, or earthquake; the sudden illness or
death of a person. (2 Blackstone's Commentaries, 122; Story in Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor as follows.

The event which we could neither foresee nor resist; as for example, the lightning stroke, hail,
inundation, hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae
consilio humano neque provideri neque vitari potest. Accident and mitigating circumstances.

Bouvier defines the same as —

Any accident due to natural cause, directly exclusively without human intervention, such as could
not have been prevented by any kind of oversight, pains and care reasonably to have been
expected. (Law Reports, 1 Common Pleas Division, 423; Law Reports, 10 Exchequer, 255.)

Corkburn, chief justice, in a well considered English case (1 Common Pleas Division, 34, 432), said that were a captain
—

Uses all the known means to which prudent and experienced captains ordinarily have recourse,
he does all that can be reasonably required of him; and if, under such circumtances, he is
overpowered by storm or other natural agency, he is within the rule which gives immunity from
the effects of such vis major.

The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning, earthquake,
tempests, public enemy ,etc.

Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our mind, the real reason why
Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the respondent
Court impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the government's examination. Verily,
post-incident investigation cannot be considered as material to the present proceedings. What is significant is the finding of the trial court,
affirmed by the respondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn this finding.
The building was constructed barely four (4) years prior to the accident in question. It was not shown that any of the causes denominates as
force majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if
only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong,
there was no adequate inspection of the premises before the date of the accident. His answers to the leading questions on inspection
disclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the structural designs and plans of the
building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that
there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was
ever inspected at all.
It is settled that:

The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and
amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other
exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or
reasonable means. 14

This implied warranty has given rise to the rule that:

Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly
and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course
of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits
of an inference of negligence on the part of the defendant. 15

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the collapse was due to force majeure,
petitioner would still be liable because it was guilty of negligence, which the trial court denominated as gross. As gleaned from Bouvier's
definition of and Cockburn's elucidation on force majeure for one to be exempt from any liability because of it, he must have exercised care,
i.e., he should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the respondent Court, but in the sweeping
conclusion of petitioner. We agree with the respondent Court that petitioner offered no reasonable objection to the exhibits. More than this,
however, We note that the exhibits were admitted not as independent evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto.
Neither were the exhibits made the main basis for the award of damages. As to the latter, including the award for attorney's fees, the
testimonial evidence presented is sufficient to support the same; moreover, petitioner was not deprived of its right to test the, truth or falsity of
private respondents' testimony through cross-examination or refute their claim by its own evidence. It could not then be successfully argued
by petitioner that the admission of the exhibits violated the hearsay rule. As this Court sees it, the trial court admitted such merely as
independently relevant statements, which was not objectionable, for:

Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule
does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact; in issue, or be circumstantially relevant as to the existence of
such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States of America (Exhibits "F", "F-1" to "F-13", inclusive),
the main objection thereto was not that they are hearsay. In its written comment and/or opposition to documentary exhibits, petitioner
objected to their admission on the following grounds only:

. . . for being incompetent evidence considering that the same were not duly authenticated by the responsible consular
and/or embassy officials authorized to authenticate the said documents. 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against petitioner.

SO ORDERED.

SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE

JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO,
CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.

DECISION

PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decisioncxxvi[1]
promulgated on July 31, 1996, and Resolutioncxxvii[2] dated September 12, 1996 of the Court of
Appealscxxviii[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc., which reduced the moral damages awarded below from
P1,000,000.00 to P200,000.00.cxxix[4] The Resolution under attack denied petitioners motion for
reconsideration.

Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner
owns a four-storey school building along the same College Road. On October 11, 1989, at about
6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong
winds, the roof of petitioners building was partly ripped off and blown away, landing on and
destroying portions of the roofing of private respondents house. After the typhoon had passed, an
ocular inspection of the destroyed buildings was conducted by a team of engineers headed by the
city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Reportcxxx[5] dated
October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the buildings
in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-
shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction,
the general formation of the buildings becomes a big funnel-like structure, the one situated along
College Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the
roofing, those located on both ends of the building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural
trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel
bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor
nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses,
thus, those trusses are not anchored at all to the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs and property of
persons living in the vicinity, the fourth floor of subject school building be declared as a
structural hazard.

In their Complaintcxxxi[6] before the Regional Trial Court of Pasay City, Branch 117, for damages
based on culpa aquiliana, private respondents alleged that the damage to their house rendered
the same uninhabitable, forcing them to stay temporarily in others houses. And so they sought to
recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages,
P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus costs.

In its Answer, petitioner averred that subject school building had withstood several devastating
typhoons and other calamities in the past, without its roofing or any portion thereof giving way;
that it has not been remiss in its responsibility to see to it that said school building, which houses
school children, faculty members, and employees, is in tip-top condition; and furthermore,
typhoon Saling was an act of God and therefore beyond human control such that petitioner
cannot be answerable for the damages wrought thereby, absent any negligence on its part.

The trial court, giving credence to the ocular inspection report to the effect that subject school
building had a defective roofing structure, found that, while typhoon Saling was accompanied by
strong winds, the damage to private respondents house could have been avoided if the
construction of the roof of [petitioners] building was not faulty. The dispositive portion of the
lower courts decisioncxxxii[7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff
(sic) and against the defendants, (sic) ordering the latter to pay jointly and severally the former
as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in
a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors,cxxxiii[8] that:

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT

OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF
THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY
SCHOOL BUILDING.

II

THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE

ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING
THE ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE
AS TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE
INCIDENT.

III

THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES

AS WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF
SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES
AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN
INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.

IV
 THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts
disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence,
petitioners resort to this Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of
speculation or conjecture, without proof or receipts of actual damage, [sic] legally feasible or
justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the latter having
suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject
matter of the case, during its pendency, has the right to pursue their complaint against petitioner
when the case was already rendered moot and academic by the sale of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and academic
[sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an act
of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without
hearing, has support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of
the building of private respondents resulting from the impact of the falling portions of the school
buildings roof ripped off by the strong winds of typhoon Saling, was, within legal contemplation,
due to fortuitous event? If so, petitioner cannot be held liable for the damages suffered by the
private respondents. This conclusion finds support in Article 1174 of the Civil Code, which
provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or which, though foreseen, were
inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an
event which takes place by accident and could not have been foreseen.cxxxiv[9] Escriche elaborates
it as an unexpected event or act of God which could neither be foreseen nor resisted.cxxxv[10]
Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two general
causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act
of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery,
etc.cxxxvi[11]

In order that a fortuitous event may exempt a person from liability, it is necessary that he be free
from any previous negligence or misconduct by reason of which the loss may have been
occasioned.cxxxvii[12] An act of God cannot be invoked for the protection of a person who has been
guilty of gross negligence in not trying to forestall its possible adverse consequences. When a
persons negligence concurs with an act of God in producing damage or injury to another, such
person is not exempt from liability by showing that the immediate or proximate cause of the
damage or injury was a fortuitous event. When the effect is found to be partly the result of the
participation of man whether it be from active intervention, or neglect, or failure to act the whole
occurrence is hereby humanized, and removed from the rules applicable to acts of God.cxxxviii[13]

In the case under consideration, the lower court accorded full credence to the finding of the
investigating team that subject school buildings roofing had no sufficient anchorage to hold it in
position especially when battered by strong winds. Based on such finding, the trial court imputed
negligence to petitioner and adjudged it liable for damages to private respondents.

After a thorough study and evaluation of the evidence on record, this Court believes otherwise,
notwithstanding the general rule that factual findings by the trial court, especially when affirmed
by the appellate court, are binding and conclusive upon this Court.cxxxix[14] After a careful
scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule
and hold that the lower courts misappreciated the evidence proffered.

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which
may be foreseen but is unavoidable despite any amount of foresight, diligence or care. cxl[15] In
order to be exempt from liability arising from any adverse consequence engendered thereby,
there should have been no human participation amounting to a negligent act.cxli[16] In other
words, the person seeking exoneration from liability must not be guilty of negligence.
Negligence, as commonly understood, is conduct which naturally or reasonably creates undue
risk or harm to others. It may be the failure to observe that degree of care, precaution, and
vigilance which the circumstances justly demand,cxlii[17] or the omission to do something which a
prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of
human affairs, would do.cxliii[18] From these premises, we proceed to determine whether petitioner
was negligent, such that if it were not, the damage caused to private respondents house could
have been avoided?

At the outset, it bears emphasizing that a person claiming damages for the negligence of another
has the burden of proving the existence of fault or negligence causative of his injury or loss. The
facts constitutive of negligence must be affirmatively established by competent evidence, cxliv[19]
not merely by presumptions and conclusions without basis in fact. Private respondents, in
establishing the culpability of petitioner, merely relied on the aforementioned report submitted
by a team which made an ocular inspection of petitioners school building after the typhoon. As
the term imparts, an ocular inspection is one by means of actual sight or viewing.cxlv[20] What is
visual to the eye though, is not always reflective of the real cause behind. For instance, one who
hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third
person shot the victim. It could have been self-inflicted or caused accidentally by a stray bullet.
The relationship of cause and effect must be clearly shown.

In the present case, other than the said ocular inspection, no investigation was conducted to
determine the real cause of the partial unroofing of petitioners school building. Private
respondents did not even show that the plans, specifications and design of said school building
were deficient and defective. Neither did they prove any substantial deviation from the approved
plans and specifications. Nor did they conclusively establish that the construction of such
building was basically flawed.cxlvi[21]

On the other hand, petitioner elicited from one of the witnesses of private respondents, city
building official Jesus Reyna, that the original plans and design of petitioners school building
were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement
before the construction of any building to obtain a permit from the city building official (city
engineer, prior to the passage of the Building Act of 1977). In like manner, after construction of
the building, a certification must be secured from the same official attesting to the readiness for
occupancy of the edifice. Having obtained both building permit and certificate of occupancy,
these are, at the very least, prima facie evidence of the regular and proper construction of subject
school building.cxlvii[22]

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon Saling, the
same city official gave the go-signal for such repairs without any deviation from the original
design and subsequently, authorized the use of the entire fourth floor of the same building. These
only prove that subject building suffers from no structural defect, contrary to the report that its
U-shaped form was structurally defective. Having given his unqualified imprimatur, the city
building official is presumed to have properly performed his dutiescxlviii[23] in connection
therewith.

In addition, petitioner presented its vice president for finance and administration who testified
that an annual maintenance inspection and repair of subject school building were regularly
undertaken. Petitioner was even willing to present its maintenance supervisor to attest to the
extent of such regular inspection but private respondents agreed to dispense with his testimony
and simply stipulated that it would be corroborative of the vice presidents narration.

Moreover, the city building official, who has been in the city government service since 1974,
admitted in open court that no complaint regarding any defect on the same structure has ever
been lodged before his office prior to the institution of the case at bench. It is a matter of judicial
notice that typhoons are common occurrences in this country. If subject school buildings roofing
was not firmly anchored to its trusses, obviously, it could not have withstood long years and
several typhoons even stronger than Saling.

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the
appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding
the construction and maintenance of its school building in question and that typhoon Saling was
the proximate cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral
damages as well as attorneys fees must fail.cxlix[24] Petitioner cannot be made to answer for a
purely fortuitous event.cl[25] More so because no bad faith or willful act to cause damage was
alleged and proven to warrant moral damages.

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they
actually incurred.cli[26] It is not enough that the damage be capable of proof but must be actually
proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for
measuring whatever compensatory damages are borne.clii[27] Private respondents merely
submitted an estimated amount needed for the repair of the roof of their subject building. What is
more, whether the necessary repairs were caused ONLY by petitioners alleged negligence in the
maintenance of its school building, or included the ordinary wear and tear of the house itself, is
an essential question that remains indeterminable.

The Court deems unnecessary to resolve the other issues posed by petitioner.

As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial
court is hereby nullified and set aside. Private respondents are ordered to reimburse any amount
or return to petitioner any property which they may have received by virtue of the enforcement
of said writ.

WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The
complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered
DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET ASIDE.
Accordingly, private respondents are ORDERED to return to petitioner any amount or property
received by them by virtue of said writ. Costs against the private respondents.

SO ORDERED.

Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.

G.R. No. L-36481-2 October 23, 1982

AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees,

vs.
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.

Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.

Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.

Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.

ESCOLIN, J.:

This appeal, originally brought to the Court of Appeals, seeks to set aside the decision
of the Court of First Instance of Negros Occidental in Civil Cases Nos. 7354 and 7428,
declaring appellant Philippine Steam Navigation liable for damages for the loss of the
appellees' cargoes as a result of a fire which gutted the Bureau of Customs' warehouse
in Pulupandan, Negros Occidental.

The Court of Appeals certified the case to Us because only pure questions of law are
raised therein.

The facts culled from the pleadings and the stipulations submitted by the parties are as
follows:

On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on board
the appellant's vessel, FS-176, for carriage from Manila to Pulupandan, Negros
Occidental, the following cargoes, to wit:

Clara Uy Bico —

1,528 cavans of rice valued

at P40,907.50;

Amparo Servando —

44 cartons of colored paper,

toys and general merchandise valued at P1,070.50;

as evidenced by the corresponding bills of lading issued by the appellant. 1

Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963, the cargoes were
discharged, complete and in good order, unto the warehouse of the Bureau of Customs. At about 2:00 in
the afternoon of the same day, said warehouse was razed by a fire of unknown origin, destroying
appellees' cargoes. Before the fire, however, appellee Uy Bico was able to take delivery of 907 cavans of
rice 2 Appellees' claims for the value of said goods were rejected by the appellant.

On the bases of the foregoing facts, the lower court rendered a decision, the decretal portion of which
reads as follows:

WHEREFORE, judgment is rendered as follows:

1. In case No. 7354, the defendant is hereby ordered to pay the plaintiff Amparo C.
Servando the aggregate sum of P1,070.50 with legal interest thereon from the date of the
filing of the complaint until fully paid, and to pay the costs.
 2. In case No. 7428, the defendant is hereby ordered to pay to plaintiff Clara Uy Bico the
aggregate sum of P16,625.00 with legal interest thereon from the date of the filing of the
complaint until fully paid, and to pay the costs.

Article 1736 of the Civil Code imposes upon common carriers the duty to observe extraordinary diligence
from the moment the goods are unconditionally placed in their possession "until the same are delivered,
actually or constructively, by the carrier to the consignee or to the person who has a right to receive them,
without prejudice to the provisions of Article 1738. "

The court a quo held that the delivery of the shipment in question to the warehouse of the Bureau of
Customs is not the delivery contemplated by Article 1736; and since the burning of the warehouse
occurred before actual or constructive delivery of the goods to the appellees, the loss is chargeable
against the appellant.

It should be pointed out, however, that in the bills of lading issued for the cargoes in question, the parties
agreed to limit the responsibility of the carrier for the loss or damage that may be caused to the shipment
by inserting therein the following stipulation:

Clause 14. Carrier shall not be responsible for loss or damage to shipments billed
'owner's risk' unless such loss or damage is due to negligence of carrier. Nor shall carrier
be responsible for loss or damage caused by force majeure, dangers or accidents of the
sea or other waters; war; public enemies; . . . fire . ...

We sustain the validity of the above stipulation; there is nothing therein that is contrary to law, morals or
public policy.

Appellees would contend that the above stipulation does not bind them because it was printed in fine
letters on the back-of the bills of lading; and that they did not sign the same. This argument overlooks the
pronouncement of this Court in Ong Yiu vs. Court of Appeals, promulgated June 29, 1979, 3 where the
same issue was resolved in this wise:

While it may be true that petitioner had not signed the plane ticket (Exh. '12'), he is
nevertheless bound by the provisions thereof. 'Such provisions have been held to be a
part of the contract of carriage, and valid and binding upon the passenger regardless of
the latter's lack of knowledge or assent to the regulation'. It is what is known as a contract
of 'adhesion', in regards which it has been said that contracts of adhesion wherein one
party imposes a ready made form of contract on the other, as the plane ticket in the case
at bar, are contracts not entirely prohibited. The one who adheres to the contract is in
reality free to reject it entirely; if he adheres, he gives his consent." (Tolentino, Civil Code,
Vol. IV, 1962 Ed., p. 462, citing Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31,
1951, p. 49).

Besides, the agreement contained in the above quoted Clause 14 is a mere iteration of the basic principle
of law written in Article 1 1 7 4 of the Civil Code:

Article 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the assumption of
risk, no person shall be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the
obligor is exempt from liability for non-performance. The Partidas, 4 the antecedent of Article 1174 of the
Civil Code, defines 'caso fortuito' as 'an event that takes place by accident and could not have been
foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers.'
In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Espanola 5 says: "In a legal
sense and, consequently, also in relation to contracts, a 'caso fortuito' presents the following essential
characteristics: (1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor
to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee
the event which constitutes the 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3)
the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal
manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to
the creditor." In the case at bar, the burning of the customs warehouse was an extraordinary event which
happened independently of the will of the appellant. The latter could not have foreseen the event.

There is nothing in the record to show that appellant carrier ,incurred in delay in the performance of its
obligation. It appears that appellant had not only notified appellees of the arrival of their shipment, but had
demanded that the same be withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken
delivery of 907 cavans of rice before the burning of the warehouse.

Nor can the appellant or its employees be charged with negligence. The storage of the goods in the
Customs warehouse pending withdrawal thereof by the appellees was undoubtedly made with their
knowledge and consent. Since the warehouse belonged to and was maintained by the government, it
would be unfair to impute negligence to the appellant, the latter having no control whatsoever over the
same.

The lower court in its decision relied on the ruling laid down in Yu Biao Sontua vs. Ossorio 6, where this
Court held the defendant liable for damages arising from a fire caused by the negligence of the
defendant's employees while loading cases of gasoline and petroleon products. But unlike in the said
case, there is not a shred of proof in the present case that the cause of the fire that broke out in the
Custom's warehouse was in any way attributable to the negligence of the appellant or its employees.
Under the circumstances, the appellant is plainly not responsible.

WHEREFORE, the judgment appealed from is hereby set aside. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common
carrier continues to be operative even during the time the goods are stored in the
warehouse of the carrier at the place of destination, until the consignee has been
advised of the arrival of the goods and has had reasonable opportunity thereafter to
remove them or otherwise dispose of them".
From the time the goods in question were deposited in the Bureau of Customs'
warehouse in the morning of their arrival up to two o' clock in the afternoon of the same
day, when the warehouse was burned, Amparo C. Servando and Clara Uy Bico, the
consignees, had reasonable opportunity to remove the goods. Clara had removed more
than one-half of the rice consigned to her.

Moreover, the shipping company had no more control and responsibility over the goods
after they were deposited in the customs warehouse by the arrastre and stevedoring
operator.

No amount of extraordinary diligence on the part of the carrier could have prevented the
loss of the goods by fire which was of accidental origin.

Under those circumstances, it would not be legal and just to hold the carrier liable to the
consignees for the loss of the goods. The consignees should bear the loss which was
due to a fortuitous event.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common
carrier continues to be operative even during the time the goods are stored in the
warehouse of the carrier at the place of destination, until the consignee has been
advised of the arrival of the goods and has had reasonable opportunity thereafter to
remove them or otherwise dispose of them".

From the time the goods in question were deposited in the Bureau of Customs'
warehouse in the morning of their arrival up to two o' clock in the afternoon of the same
day, when the warehouse was burned, Amparo C. Servando and Clara Uy Bico, the
consignees, had reasonable opportunity to remove the goods. Clara had removed more
than one-half of the rice consigned to her.

Moreover, the shipping company had no more control and responsibility over the goods
after they were deposited in the customs warehouse by the arrastre and stevedoring
operator.

No amount of extraordinary diligence on the part of the carrier could have prevented the
loss of the goods by fire which was of accidental origin.
Under those circumstances, it would not be legal and just to hold the carrier liable to the
consignees for the loss of the goods. The consignees should bear the loss which was
due to a fortuitous event.

Transportation Case Digest: Servando v.

Philippine Steam Navigation Co. (1982)
G.R. No. L-36481-2 October 23, 1982

Lessons Applicable: Contract of Adhesion (Transportation)

Laws Applicable: Article 1736, Article 1174

FACTS:

 Clara Uy Bico (1,528 cavans of rice worth P40,907.50) and Amparo

Servando (44 cartons of colored paper toys and general merchandise
worth P1,070.50) loaded on board Philippine Steam Navigation
Co.'s vessel, FS-176 for carriage from Manila to Pulupandan, Negros
Occidental
o Bill of Lading:
 Clause 14. Carrier shall not be responsible for loss or
damage to shipments billed 'owner's risk' unless such loss
or damage is due to negligence of carrier. Nor shall carrier
be responsible for loss or damage caused by force
majeure, dangers or accidents of the sea or other waters;
war; public enemies; . . . fire . ...
 Upon arrival of the vessel at Pulupandan, in the morning of November
18, 1963, the cargoes were discharged, complete and in good order,
unto the warehouse of the Bureau of Customs
o 2 pm: warehouse was razed by fire
 Before the fire, 907 cavans of rice were delivered by Uy Bico
 Uy Bico and Servando filed a claim for the value but was rejected by
Philippine Steam
 CFI: favored UY Bico and Sercando
o delivery of the shipment in question to the warehouse of the
Bureau of Customs is not the delivery contemplated by Article
1736

ISSUE: W/N Philippine Steam should not be liable because of the stipulation
in the bill of lading exempting it from fortuitous event

HELD: YES. set aside

 Agreement was in iteration of
o Article 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.
 'caso fortuito' presents the following essential characteristics: (1) the
cause of the unforeseen and unexpected occurrence, or of the failure
of the debtor to comply with his obligation, must be independent of
the human will; (2) it must be impossible to foresee the event which
constitutes the 'caso fortuito', or if it can be foreseen, it must be
impossible to avoid; (3) the occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner;
and (4) the obligor must be free from any participation in the
aggravation of the injury resulting to the creditor." In the case at bar,
the burning of the customs warehouse was an extraordinary event
which happened independently of the will of the appellant. The latter
could not have foreseen the event.
 nothing in the record to show that appellant carrier ,incurred in delay
in the performance of its obligation