negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law
NEGLIGENCE
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
to have been caused by an automobile driven by the defendant. From
a judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took
place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten
half way across, the defendant approached from the opposite direction
in an automobile, going at the rate of about ten or twelve miles per
hour. As the defendant neared the bridge he saw a horseman on it and
blew his horn to give warning of his approach. He continued his course
and after he had taken the bridge he gave two more successive blasts,
as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the
warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the
left. He says that the reason he did this was that he thought he did not
have sufficient time to get over to the other side. The bridge is shown
to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that
being the proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to the other side.
The pony had not as yet exhibited fright, and the rider had made no
sign for the automobile to stop. Seeing that the pony was apparently
quiet, the defendant, instead of veering to the right while yet some
distance away or slowing down, continued to approach directly toward
the horse without diminution of speed. When he had gotten quite near,
there being then no possibility of the horse getting across to the other
side, the defendant quickly turned his car sufficiently to the right to
escape hitting the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in such close
proximity to the animal that it became frightened and turned its body
across the bridge with its head toward the railing. In so doing, it as
struck on the hock of the left hind leg by the flange of the car and the
limb was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that when
the accident occurred the free space where the pony stood between
the automobile and the railing of the bridge was probably less than one
and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse
and the rider would pass over to the proper side; but as he moved
toward the center of the bridge it was demonstrated to his eyes that
this would not be done; and he must in a moment have perceived that
it was too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it
was not longer within the power of the plaintiff to escape being run
down by going to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his duty either to
bring his car to an immediate stop or, seeing that there were no other
persons on the bridge, to take the other side and pass sufficiently far
away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the known nature of horses,
there was an appreciable risk that, if the animal in question was
unacquainted with automobiles, he might get exited and jump under
the conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion,
negligent in the eye of the law.
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct
of the discreet paterfamilias of the Roman law. The existence of
considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by
that.
The question as to what would constitute the conduct of a prudent man
in a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular
case. Abstract speculations cannot here be of much value but this
much can be profitably said: Reasonable men govern their conduct by
the circumstances which are before them or known to them. They are
not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before
them to suggest or warn of danger. Could a prudent man, in the case
under consideration, foresee harm as a result of the course actually
pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by ignoring
of the suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is
this: Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.
Applying this test to the conduct of the defendant in the present case
we think that negligence is clearly established. A prudent man, placed
in the position of the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught with risk, and would
therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law
imposed on the defendant the duty to guard against the threatened
harm.
It goes without saying that the plaintiff himself was not free from fault,
for he was guilty of antecedent negligence in planting himself on the
wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted
that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances the law
is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7
Phil. Rep., 359) should perhaps be mentioned in this connection. This
Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received
in evidence to reduce the damages which would otherwise have been
assessed wholly against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards located not
far away. The rails were conveyed upon cars which were hauled along
a narrow track. At certain spot near the water's edge the track gave
way by reason of the combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence upset; the rails
slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which
had dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of
the track and also that the plaintiff was, at the moment of the accident,
guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant
was liable to the plaintiff by reason of its negligence in having failed to
keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence
in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from
its responsibility for the dangerous condition of its track. In a case like
the one now before us, where the defendant was actually present and
operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of
their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a
more remote factor in the case.
A point of minor importance in the case is indicated in the special
defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon
after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the
defendant with the infliction of serious injuries (lesiones graves). At the
preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the
acquittal of the defendant at the trial upon the merits in a criminal
prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point upon
which it is unnecessary to express an opinion -- the action of the
1 |TORTS AND DAMAGES
justice of the peace in dismissing the criminal proceeding upon the
preliminary hearing can have no effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court
must be reversed, and judgment is her rendered that the plaintiff
recover of the defendant the sum of two hundred pesos (P200), with
costs of other instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the plaintiff, the
loss or damage occasioned to articles of his apparel, and lawful
interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as
not to be recoverable. So ordered.
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
2 |TORTS AND DAMAGES
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
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
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
3 |TORTS AND DAMAGES
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
4 |TORTS AND DAMAGES
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. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE
TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
CRISELDA R. AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
the Court of Appeals in C.A. G.R. No. CV 37937 and the
resolution 2 denying their motion for reconsideration. The assailed
decision set aside the 15 January 1992 judgment of the Regional Trial
Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
5 |TORTS AND DAMAGES
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope
and Elisa Panelo are the store's branch manager, operations manager,
and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at
the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was
signing her credit card slip at the payment and verification counter
when she felt a sudden gust of wind and heard a loud thud. She looked
behind her. She then beheld her daughter ZHIENETH on the floor, her
young body pinned by the bulk of the store's gift-wrapping
counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the
floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where
she was operated on. The next day ZHIENETH lost her speech and
thereafter communicated with CRISELDA by writing on a magic slate.
The injuries she sustained took their toil on her young body. She died
fourteen (14) days after the accident or on 22 May 1983, on the
hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained.
The provisional medical certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe
liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and
wake and funeral expenses 6 which they had incurred. Petitioners
refused to pay. Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they sought the
payment of P157,522.86 for actual damages, P300,000 for moral
damages, P20,000 for attorney's fees and an unspecified amount for
loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the
injuries and consequent death of ZHIENETH. They claimed that
CRISELDA was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of contributory
negligence since she climbed the counter, triggering its eventual
collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed
for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection,
supervision and control of its employees. The other petitioners likewise
raised due care and diligence in the performance of their duties and
countered that the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the dismissal
of the complaint and an award of moral and exemplary damages and
attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the evidence
favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed
petitioners' witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial court
also held that CRISELDA's negligence contributed to ZHIENETH's
accident.
In absolving petitioners from any liability, the trial court reasoned that
the counter was situated at the end or corner of the 2nd floor as a
precautionary measure hence, it could not be considered as an
attractive nuisance. 8 The counter was higher than ZHIENETH. It has
been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.
Private respondents appealed the decision, attributing as errors of the
trial court its findings that: (1) the proximate cause of the fall of the
counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent
in her care of ZHIENETH; (3) petitioners were not negligent in the
maintenance of the counter; and (4) petitioners were not liable for the
death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9) years
is incapable of contributory negligence. And even if ZHIENETH, at six
(6) years old, was already capable of contributory negligence, still it
was physically impossible for her to have propped herself on the
counter. She had a small frame (four feet high and seventy pounds)
and the counter was much higher and heavier than she was. Also, the
testimony of one of the store's former employees, Gerardo Gonzales,
who accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied petitioners'
theory that ZHIENETH climbed the counter. Gonzales claimed that
when ZHIENETH was asked by the doctor what she did, ZHIENETH
replied, "[N]othing, I did not come near the counter and the counter just
fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered as part of res
gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment
that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate
cause of ZHIENETH's death, was petitioners' negligence in failing to
institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised
purely factual issues which could no longer be disturbed. They
explained that ZHIENETH's death while unfortunate and tragic, was an
accident for which neither CRISELDA nor even ZHIENETH could
entirely be held faultless and blameless. Further, petitioners adverted
to the trial court's rejection of Gonzales' testimony as unworthy of
credence.
As to private respondent's claim that the counter should have been
nailed to the ground, petitioners justified that it was not necessary. The
counter had been in existence for several years without any prior
accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they
had exercised due diligence on the matter. In fact, the criminal
case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict
of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of the upper
portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the
front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter
ignored their concern. The Court of Appeals faulted the petitioners for
this omission, and concluded that the incident that befell ZHIENETH
could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for
some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven
(7) years old at the time of the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional wrong, then the
six-year old ZHIENETH could not be made to account for a mere
mischief or reckless act. It also absolved CRISELDA of any
negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the
nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit
to the testimony of disinterested witness Gonzales. The Court of
Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private
respondents as evidenced by the hospital's statement of account. 12 It
denied an award for funeral expenses for lack of proof to substantiate
the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court
is SET ASIDE and another one is entered against [petitioners],
ordering them to pay jointly and severally unto [private respondents]
the following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred;
with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the
same was denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and
the reinstatement of the judgment of the trial court. Petitioners primarily
argue that the Court of Appeals erred in disregarding the factual
findings and conclusions of the trial court. They stress that since the
action was based on tort, any finding of negligence on the part of the
private respondents would necessarily negate their claim for damages,
where said negligence was the proximate cause of the injury
6 |TORTS AND DAMAGES
sustained. The injury in the instant case was the death of ZHIENETH.
The proximate cause was ZHIENETH's act of clinging to the counter.
This act in turn caused the counter to fall on her. This and CRISELDA's
contributory negligence, through her failure to provide the proper care
and attention to her child while inside the store, nullified private
respondents' claim for damages. It is also for these reasons that
parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners
could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvel's at the time he testified; hence, his testimony
might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments
that neither ZHIENETH nor CRISELDA was negligent at any time while
inside the store; the findings and conclusions of the Court of Appeals
are substantiated by the evidence on record; the testimony of
Gonzales, who heard ZHIENETH comment on the incident while she
was in the hospital's emergency room should receive credence; and
finally, ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH
was accidental or attributable to negligence; and (2) in case of a
finding of negligence, whether the same was attributable to private
respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside
the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human agency,
an event which under the circumstances is unusual or unexpected by
the person to whom it happens." 16
On the other hand, 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
do. 17 Negligence is "the failure to observe, for the protection of the
interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other
person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means suggested by
common prudence. 19
The test in determining the existence of negligence is enunciated in the
landmark case of Plicart v. Smith, 20 thus: 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. 21
We rule that the tragedy which befell ZHIENETH was no accident and
that ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of
the incident and accompanied CRISELDA and ZHIENETH to the
hospital:
Q While at the Makati Medical Center, did you hear or notice anything
while the child was being treated?
A At the emergency room we were all surrounding the child. And when
the doctor asked the child "what did you do," the child said "nothing, I
did not come near the counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak."
This testimony of Gonzales pertaining to ZHIENETH's statement
formed (and should be admitted as) part of the res gestae under
Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering
and statements made to a physician are generally considered
declarations and admissions. 23 All that is required for their admissibility
as part of the res gestae is that they be made or uttered under the
influence of a startling event before the declarant had the time to think
and concoct a falsehood as witnessed by the person who testified in
court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have
lied to a doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter, i.e., ZHIENETH
performed no act that facilitated her tragic death. Sadly, petitioners did,
through their negligence or omission to secure or make stable the
counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and
maintain the structurally unstable gift-wrapping counter proved their
negligence, thus:
Q When you assumed the position as gift wrapper at the second floor,
will you please describe the gift wrapping counter, were you able to
examine?
A Because every morning before I start working I used to clean that
counter and since not nailed and it was only standing on the floor, it
was shaky. x x x xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the
afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and considering
that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since
Mr. Maat is fond of putting display decorations on tables, he even told
me that I would put some decorations. But since I told him that it not
[sic] nailed and it is shaky he told me "better inform also the company
about it." And since the company did not do anything about the
counter, so I also did not do anything about the counter. 24 [Emphasis
supplied]
Ramon Guevarra, another former employee, corroborated the
testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter
where you were assigned in January 1983? x x x xxx xx
x
A That counter assigned to me was when my supervisor ordered me to
carry that counter to another place. I told him that the counter needs
nailing and it has to be nailed because it might cause injury or accident
to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor
on February 12, 1983, will you please describe that to the honorable
Court?
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the
counter was shaky?
A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry at me
when I told her that. x x x xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms.
Panelo or any employee of the management do to that (sic) x x x
Witness:
None, sir. They never nailed the counter. They only nailed the counter
after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet,
neither initiated any concrete action to remedy the situation nor ensure
the safety of the store's employees and patrons as a reasonable and
ordinary prudent man would have done. Thus, as confronted by the
situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners
failed to establish that the former's testimonies were biased and tainted
with partiality. Therefore, the allegation that Gonzales and Guevarra's
testimonies were blemished by "ill feelings" against petitioners — since
they (Gonzales and Guevarra) were already separated from the
company at the time their testimonies were offered in court — was but
mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses,
the appellate courts will not as a general rule disturb the findings of the
trial court, which is in a better position to determine the same. The trial
court has the distinct advantage of actually hearing the testimony of
and observing the deportment of the witnesses. 26 However, the rule
admits of exceptions such as when its evaluation was reached
arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of
the case. 27 In the instant case, petitioners failed to bring their claim
within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they
are incapable of contributory negligence. In his book, 28 former Judge
Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that account,
exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine
and under fifteen years of age, unless it is shown that he has acted
with discernment. Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by analogy,
7 |TORTS AND DAMAGES
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the
case of a child over nine but under fifteen years of age is a rebuttable
one, under our law. The rule, therefore, is that a child under nine years
of age must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume
that she climbed over the counter, no injury should have occurred if we
accept petitioners' theory that the counter was stable and sturdy. For if
that was the truth, a frail six-year old could not have caused the
counter to collapse. The physical analysis of the counter by both the
trial court and Court of Appeals and a scrutiny of the evidence 29 on
record reveal otherwise, i.e., it was not durable after all. Shaped like an
inverted "L," the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its base
was not secured. 30
CRISELDA too, should be absolved from any contributory negligence.
Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
hand. 31 CRISELDA momentarily released the child's hand from her
clutch when she signed her credit card slip. At this precise moment, it
was reasonable and usual for CRISELDA to let go of her child. Further,
at the time ZHIENETH was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was just four
meters away from CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted to the
doctor who treated her at the hospital that she did not do anything; the
counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners. SO ORDERED.
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF
APPEALS, respondents.
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the
decision of the Court of Appeals in CA-G.R. No. 36390-R entitled
"Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which
originated from the Court of First Instance of Pangasinan, We are
again caned upon determine the responsibility of the principals and
teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the
Gabaldon Primary School, a public educational institution located in
Tayug, Pangasinan-Private respondent Edgardo Aquino was a teacher
therein. At that time, the school was fittered with several concrete
blocks which were remnants of the old school shop that was destroyed
in World War II. Realizing that the huge stones were serious hazards
to the schoolchildren, another teacher by the name of Sergio Banez
started burying them one by one as early as 1962. In fact, he was able
to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino
gathered eighteen of his male pupils, aged ten to eleven, after class
dismissal on October 7, 1963. Being their teacher-in-charge, he
ordered them to dig beside a one-ton concrete block in order to make a
hole wherein the stone can be buried. The work was left unfinished.
The following day, also after classes, private respondent Aquino called
four of the original eighteen pupils to continue the digging. These four
pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and
Novelito Ylarde, dug until the excavation was one meter and forty
centimeters deep. At this point, private respondent Aquino alone
continued digging while the pupils remained inside the pit throwing out
the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete block,
private respondent Aquino and his four pupils got out of the hole. Then,
said private respondent left the children to level the loose soil around
the open hole while he went to see Banez who was about thirty meters
away. Private respondent wanted to borrow from Banez the key to the
school workroom where he could get some rope. Before leaving. ,
private respondent Aquino allegedly told the children "not to touch the
stone."
A few minutes after private respondent Aquino left, three of the four
kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then,
without any warning at all, the remaining Abaga jumped on top of the
concrete block causing it to slide down towards the opening. Alonso
and Alcantara were able to scramble out of the excavation on time but
unfortunately fo Ylarde, the concrete block caught him before he could
get out, pinning him to the wall in a standing position. As a result
thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic
region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and urine
about 2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder almost
entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages
against both private respondents Aquino and Soriano. The lower court
dismissed the complaint on the following grounds: (1) that the digging
done by the pupils is in line with their course called Work Education;
(2) that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Ylarde was due to his own reckless
imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower
court.
Petitioners base their action against private respondent Aquino on
Article 2176 of the Civil Code for his alleged negligence that caused
their son's death while the complaint against respondent Soriano as
the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre- existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices,
so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions,
both private respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible
for the death of the child Ylarde, he being the head of an academic
school and not a school of arts and trades. This is in line with Our
ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly
discussed the doctrine that under Article 2180 of the Civil Code, it is
only the teacher and not the head of an academic school who should
be answerable for torts committed by their students. This Court went
on to say that in a school of arts and trades, it is only the head of the
school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come to
the conclusion that the provision in question should apply
to all schools, academic as well as non-academic. Where the school is
academic rather than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the teacher in charge
of such student, following the first part of the provision. This is the
general rule. In the case of establishments of arts and trades, it is the
head thereof, and only he, who shall be held liable as an exception to
the general rule. In other words, teachers in general shall be liable for
the acts of their students except where the school is technical in
nature, in which case it is the head thereof who shall be answerable.
Following the canon of reddendo singula sinquilis 'teachers' should
apply to the words "pupils and students' and 'heads of establishments
of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private
respondent Soriano, as principal, cannot be held liable for the reason
that the school he heads is an academic school and not a school of
arts and trades. Besides, as clearly admitted by private respondent
Aquino, private respondent Soriano did not give any instruction
regarding the digging.
From the foregoing, it can be easily seen that private respondent
Aquino can be held liable under Article 2180 of the Civil Code as the
teacher-in-charge of the children for being negligent in his supervision
over them and his failure to take the necessary precautions to prevent
any injury on their persons. However, as earlier pointed out, petitioners
base the alleged liability of private respondent Aquino on Article 2176
which is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there
acts and omissions on the part of private respondent Aquino
amounting to fault or negligence which have direct causal relation to
the death of his pupil Ylarde? Our answer is in the affirmative. He is
liable for damages.
From a review of the record of this case, it is very clear that private
respondent Aquino acted with fault and gross negligence when he: (1)
failed to avail himself of services of adult manual laborers and instead
utilized his pupils aged ten to eleven to make an excavation near the
one-ton concrete stone which he knew to be a very hazardous task; (2)
required the children to remain inside the pit even after they had
finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance
may go to the perilous area; (3) ordered them to level the soil around
8 |TORTS AND DAMAGES
the excavation when it was so apparent that the huge stone was at the
brink of falling; (4) went to a place where he would not be able to check
on the children's safety; and (5) left the children close to the
excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in
such a dangerous site has a direct causal connection to the death of
the child Ylarde. Left by themselves, it was but natural for the children
to play around. Tired from the strenuous digging, they just had to
amuse themselves with whatever they found. Driven by their playful
and adventurous instincts and not knowing the risk they were facing
three of them jumped into the hole while the other one jumped on the
stone. Since the stone was so heavy and the soil was loose from the
digging, it was also a natural consequence that the stone would fall
into the hole beside it, causing injury on the unfortunate child caught by
its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not have died were it not for
the unsafe situation created by private respondent Aquino which
exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries
which resulted in the death of the child Ylarde were caused by his own
reckless imprudence, It should be remembered that he was only ten
years old at the time of the incident, As such, he is expected to be
playful and daring. His actuations were natural to a boy his age. Going
back to the facts, it was not only him but the three of them who jumped
into the hole while the remaining boy jumped on the block. From this, it
is clear that he only did what any other ten-year old child would do in
the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower
court did not consider his age and maturity. This should not be the
case. The degree of care required to be exercised must vary with the
capacity of the person endangered to care for himself. A minor should
not be held to the same degree of care as an adult, but his conduct
should be judged according to the average conduct of persons of his
age and experience. 5 The standard of conduct to which a child must
conform for his own protection is that degree of care ordinarily
exercised by children of the same age, capacity, discretion, knowledge
and experience under the same or similar circumstances. 6 Bearing
this in mind, We cannot charge the child Ylarde with reckless
imprudence.
The court is not persuaded that the digging done by the pupils can
pass as part of their Work Education. A single glance at the picture
showing the excavation and the huge concrete block 7 would reveal a
dangerous site requiring the attendance of strong, mature laborers and
not ten-year old grade-four pupils. We cannot comprehend why the
lower court saw it otherwise when private respondent Aquino himself
admitted that there were no instructions from the principal requiring
what the pupils were told to do. Nor was there any showing that it was
included in the lesson plan for their Work Education. Even the Court of
Appeals made mention of the fact that respondent Aquino decided all
by himself to help his co-teacher Banez bury the concrete remnants of
the old school shop. 8 Furthermore, the excavation should not be
placed in the category of school gardening, planting trees, and the like
as these undertakings do not expose the children to any risk that could
result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost
diligence of a very cautious person is certainly without cogent basis. A
reasonably prudent person would have foreseen that bringing children
to an excavation site, and more so, leaving them there all by
themselves, may result in an accident. An ordinarily careful human
being would not assume that a simple warning "not to touch the stone"
is sufficient to cast away all the serious danger that a huge concrete
block adjacent to an excavation would present to the children.
Moreover, a teacher who stands in loco parentis to his pupils would
have made sure that the children are protected from all harm in his
company.
We close by categorically stating that a truly careful and cautious
person would have acted in all contrast to the way private respondent
Aquino did. Were it not for his gross negligence, the unfortunate
incident would not have occurred and the child Ylarde would probably
be alive today, a grown- man of thirty-five. Due to his failure to take the
necessary precautions to avoid the hazard, Ylarde's parents suffered
great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby
GRANTED and the questioned judgment of the respondent court is
REVERSED and SET ASIDE and another judgment is hereby
rendered ordering private respondent Edagardo Aquino to pay
petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
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.
9 |TORTS AND DAMAGES
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.
G.R. No. L-12858 January 22, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first
time, of the penal provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long
standing and the owner of a drug store located at Nos. 442, 444, Calle
Santo Cristo, city of Manila. One Feliciano Santos, having some sick
horses, presented a copy of a prescription obtained from Dr.
Richardson, and which on other occasions Santos had given to his
horses with good results, at Pineda's drug store for filling. The
prescription read — "clorato de potasa — 120 gramos — en seis
papelitos de 20 gramos, para caballo." Under the supervision of
Pineda, the prescription was prepared and returned to Santos in the
form of six papers marked, "Botica Pineda — Clorato potasa — 120.00
— en seis papeles — para caballo — Sto. Cristo 442, 444, Binondo,
Manila." Santos, under the belief that he had purchased the potassium
chlorate which he had asked for, put two of the packages in water the
doses to two of his sick horses. Another package was mixed with water
for another horse, but was not used. The two horses, to which had
been given the preparation, died shortly afterwards. Santos,
thereupon, took the three remaining packages to the Bureau of
Science for examination. Drs. Peña and Darjuan, of the Bureau of
Science, on analysis found that the packages contained not potassium
chlorate but barium chlorate. At the instance of Santos, the two
chemists also went to the drug store of the defendant and bought
potassium chlorate, which when analyzed was found to be barium
chlorate. (Barium chlorate, it should be noted, is a poison; potassium
chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy
on the horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court
erred in admitting the testimony of the chemist Pena and Darjuan as to
their purchase of potassium chlorate at the drug store of the accused,
which substance proved on analysis to be barium chlorate. What the
appellant is here relying on is the maxim res inter alios acta. As a
general rule, the evidence of other offenses committed by a defendant
is inadmissible. But appellant has confused this maxim and this rule
with certain exceptions thereto. The effort is not to convict the accused
of a second offense. Nor is there an attempt to draw the mind away
from the point at issue and thus to prejudice defendant's case. The
purpose is to ascertain defendant's knowledge and intent, and to fix his
negligence. If the defendant has on more than one occasion performed
similar acts, accident in good faith is possibly excluded, negligence is
intensified, and fraudulent intent may even be established. It has been
said that there is no better evidence of negligence than the frequency
of accidents. (See 10 R. C. L., pp. 938, 940.) The United States
Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of
certain testimony to throw light upon a particular fact, or to explain the
conduct of a particular person, there is a certain discretion on the part
of the trial judge which a court of errors will not interfere with, unless it
manifestly appear that the testimony has no legitimate bearing upon
the question at issue, and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence,
either from the nature of the inquiry or the failure of direct proof,
objections to the testimony on the ground of irrelevancy are not
favored.
Evidence is admissible in a criminal action which tends to show motive,
although it tends to prove the commission of another offense by the
defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding
that the substance sold by the accused to Feliciano Santos on the 22d
of June, 1916, was barium chlorate and not potassium chlorate. The
proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in
finding that the accused has been proved guilty beyond a reasonable
doubt of an infraction of Act No. 597, section 17, as amended. The
third assignment contains the points we should consider, including, we
may remark, a somewhat difficult question concerning which the briefs
have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later
amended by Act Nos. 1921, 2236, and 2382, and is now found as
Chapter 30 of the Administrative Code. The law provides for a board of
pharmaceutical examiners, and the examination and registration of
pharmacists, and finally contains sundry provisions relative to the
practice of pharmacy. High qualification for applicants for the
pharmaceutical; examination are established. The program of subjects
for the examination is wide. Responsibility for the quality of drugs is
fixed by section 17 of the Pharmacy Law, as amended (now
Administrative Code [1917], section 751), in the following term:
Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it
shall be unlawful for any person whomsoever to manufacture, prepare,
10 |TORTS AND DAMAGES
sell, or administer any prescription, drug, chemical, medicine, or poison
under any fraudulent name, direction, or pretense, or to adulterate any
drug, chemical, medicine, or poison so used, sold or offered for sale.
Any drug, chemical, medicine, or poison shall be held to be adulterated
or deteriorated within the meaning of this section if it differs from the
standard of quality or purity given in the United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following
penal provision: "Any person violating the provisions of this Act shall,
upon conviction, be punished by a fine of not more than five hundred
dollar." The Administrative Code, section 2676, changes the penalty
somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine
Islands contrary to any provision of the Pharmacy Law or violating any
provisions of said law for which no specific penalty s provided shall, for
each offense, be punished by a fine not to exceed two hundred pesos,
or by imprisonment for not more than ninety days, or both, in the
discretion of the court.
These are the provisions of law, pursuant to which prosecution has
been initiated and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present
facts must be admitted. Thus, defendant is a pharmacist. As a
pharmacist, he is made responsible for the quality of all drugs and
poisons which he sells. And finally it is provided that it shall be unlawful
for him to sell any drug or poison under any "fraudulent name." It is the
one word "fraudulent" which has given the court trouble. What did the
Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the
appellant vigorously insists upon, it would be difficult, if not impossible,
to convict any druggist of a violation of the law. The prosecution would
have to prove to a reasonable degree of certainty that the druggist
made a material representation; that it was false; that when he made it
he knew that it was false or made it recklessly without any knowledge
of its truth and as positive assertion; that he made it with the intention
that it should be acted upon by the purchaser; that the purchaser acted
in reliance upon it, and that the purchased thereby suffered injury.
Such a construction with a literal following of well-known principles on
the subject of fraud would strip the law of at least much of its force. It
would leave the innocent purchaser of drugs, who must blindly trust in
the good faith and vigilance of the pharmacist, at the mercy of any
unscrupulous vendor. We should not, therefore, without good reason
so devitalize the law.
The profession of pharmacy, it has been said again and again, is one
demanding care and skill. The responsibility of the druggist to use care
has been variously qualified as "ordinary care," "care of a special high
degree," "the highest degree of care known to practical men." Even
under the first conservative expression, "ordinary care" with reference
to the business of a druggist, the Supreme Court of Connecticut has
said must be held to signify "the highest practicable degree of
prudence, thoughtfulness, and vigilance, and most exact and reliable
safeguards consistent with the reasonable conduct of the business, in
order that human life may not be constantly be exposed to the danger
flowing from the substitution of deadly poisons for harmless medicine."
(Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs.
Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins
[1907], 81 N. E., 600.) The "skill" required of a druggist is denominated
as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L.
R. A., 428.) In other words, the care required must be commensurate
with the danger involved, and the skill employed must correspond with
the superior knowledge of the business which the law demands.
Under one conception, and it should not be forgotten that the case we
consider are civil in nature, the question of negligence or ignorance is
irrelevant. The druggist is responsible as an absolute guarantor of what
he sells. In a decision which stands alone, the Supreme Court of
Kentucky said:
As applicable to the owners of drug stores, or persons engaged in
vending drugs and medicines by retail, the legal maxim should be
reversed. Instead of caveat emptor, it should be caveat venditor. That
is to say, let him be certain that he does not sell to a purchaser or send
to a patient one drug for another, as arsenic for calomel, cantharides
for or mixed with snakeroot and Peruvian bark, or even one innocent
drug, calculated to produce a certain effect, in place of another sent for
and designed to produce a different effect. If he does these things, he
cannot escape civil responsibility, upon the alleged pretext that it was
an accidental or an innocent mistake; that he had been very careful
and particular, and had used extraordinary care and diligence in
preparing or compounding the medicines as required, etc. Such
excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec.,
563.)
Under the other conception, in which the proof of negligence is
considered as material, where a customer calls upon a druggist for a
harmless remedy, delivery of a poisonous drug by mistake by the
druggist is prima facie negligence, placing the burden on him to show
that the mistake was under the circumstances consistent with the
exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist
cannot, for example in filling a prescription calling for potassium
chlorate give instead to the customer barium chlorate, a poison, place
this poison in a package labeled "potassium chlorate," and expect to
escape responsibility on plea of mistake. His mistake, under the most
favorable aspect for himself, was negligence. So in a case where a
druggist filled an order for calomel tablets with morphine and placed
the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise
probable, that the act of furnishing the wrong drug in this case was
willful. If it was furnished by the clerk, it was undoubtedly a mistake
and unintentional. However, it was a mistake of the gravest kind, and
of the most disastrous effect. We cannot say that one holding himself
out as competent to handle such drugs, and who does so, having
rightful access to them, and relied upon by those dealing with him to
exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that
his mistakes by which he furnishes a customer the most deadly of
drugs for those comparatively harmless is not, in and of itself, gross
negligence, and that of an aggravated form. (Smith's Admrx. vs.
Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of
drugs. The vendor and the vendee do not stand at arms length as in
ordinary transactions. An imperative duty is on the druggist to take
precautions to prevent death or serious injury to anyone who relies on
his absolute honesty and peculiar leaning. The nature of drugs is such
that examination would not avail the purchaser anything. It would be
idle mockery for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be that the
druggist warrants that he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately
resulting from his negligence. If B negligently sells poison under the
guise of a beneficial drug to A, he is liable for the injury done to A. In a
case, which has repeatedly been termed the leading case on the
subject and which has been followed by the United States Supreme
Court, it was said, "Pharmacists or apothecaries who compound or sell
medicines, if they carelessly label a poison as a harmless medicine,
and sent it so labeled into the market, are liable to all persons who,
without fault on their part, are injured by using it as such medicine, in
consequence of the false label; the rule being that the liability in such a
case arises not out of any contract or direct privity between the wrong-
doer and the person injured, but out of the duty which the law imposes
on him to avoid acts in their nature dangerous to the lives of others."
(Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas
vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist,
mistake is negligence and care is no defense. Throughout the criminal
law, run the same rigorous rules. For example, apothecaries or
apothecary clerks, who are guilty of negligence in the sale of medicine
when death ensues in consequence, have been held guilty of
manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly
the care and skill which are expected of druggist, that in some
jurisdictions they are liable even for their mistake and in others have
the burden placed upon them to establish that they were not negligent,
it cannot be that the Philippine Legislature intended to use the word
"fraudulent" in all its strictness. A plea of accident and mistake cannot
excuse for they cannot take place unless there be wanton and criminal
carelessness and neglect. How the misfortune occurs is unimportant, if
under all the circumstances the fact of occurrence is attributed to the
druggist as a legal fault. Rather considering the responsibility for the
quality of drugs which the law imposes on druggists and the position of
the word "fraudulent" in juxtaposition to "name," what is made unlawful
is the giving of a false name to the drug asked for. This view is borne
out by Spanish translation, which we are permitted to consult to explain
the English text. In the Spanish "supuesto" is used, and this word is
certainly not synonymous with "fraudulent." The usual badges of fraud,
falsify, deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the
careless sale of poisons and medicines, we do not deem it too rigid a
rule to hold that the law penalizes any druggist who shall sell one drug
for another whether it be through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a
fine of P100, with subsidiary imprisonment in case of insolvency, and
to pay the costs, is affirmed with the cost of this instance against the
appellant, without prejudice to any civil action which may be instituted.
So ordered.
G.R. No. 102383 November 26, 1992
BANK OF THE PHILIPPINE ISLANDS, petitioner,
vs.
THE HON. COURT OF APPEALS (SEVENTH JUDICIAL), HON.
JUDGE REGIONAL TRIAL COURT OF MAKATI, BRANCH 59,
CHINA BANKING CORP., and PHILIPPINE CLEARING HOUSE
CORPORATION, respondents.
GUTIERREZ, JR., J.:
The present petition asks us to set aside the decision and resolution of
the Court of Appeals in CA-G.R. SP No. 24306 which affirmed the
earlier decision of the Regional Trial Court of Makati, Branch 59 in Civil
Case No. 14911 entitled Bank of the Philippine Islands v. China
Banking Corporation and the Philippine Clearing House
Corporation, the dispositive portion of which reads:
11 |TORTS AND DAMAGES
WHEREFORE, premises considered, judgment is hereby rendered
dismissing petitioner-appellant's (BPI's) appeal and affirming the
appealed order of August 26, 1986 (Annex B of BPI's Petition) with
modification as follows:
1. Ordering the petitioner-appellant (BPI) to pay respondent-appellee
(CBC):
(a) the amount of One Million Two Hundred Six Thousand, Six
Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58) with
interest at the legal rate of twelve percent (12%) per annum starting
August 26, 1986, the date when the order of the PCHC Board of
Directors was issued until the full amount is finally paid; and
(b) the amount of P150,000.00 representing attorney's fees;
2. BPI shall also bear 75% or P5,437.50 and CBC, 25% or P1,812.50
of the cost of the arbitration proceedings amounting to P7,250.00;
3. The ownership of respondent-appellee (CBC) of the other sum of
One Million Two Hundred Six Thousand Six Hundred Seven Pesos
and Fifty Eight Centavos (P1,206,607.58) previously credited to its
clearing account on August 12, 1983 per PCHC Stockholders'
Resolution No. 6083 dated April 6, 1983, is hereby confirmed.
4. The PCHC is hereby directed to immediately debit the clearing
account of BPI the sum of One Million Two Hundred Six Thousand Six
Hundred Pesos and Fifty Eight Centavos (P1,206,607.58) together
with its interest as decreed in paragraph 1 (a) herein above stated and
credit the same to the clearing account of CBC;
5. The PCHC's counterclaim and cross-claim are dismissed for lack of
merit; and
6. With costs against the petitioner-appellant. (Rollo, pp. 161-162)
The controversy in this case arose from the following facts as found by
the Arbitration Committee of respondent Philippine Clearing House
Corporation in Arbicom Case No. 83-029 entitled Bank of the
Philippine Island v. China Banking Corporation:
The story underlying this case began in the afternoon of October 9,
1981 with a phone call to BPI's Money Market Department by a woman
who identified herself as Eligia G. Fernando who had a money market
placement as evidenced by a promissory note with a maturity date of
November 11, 1981 and a maturity value of P2,462,243.19. The caller
wanted to preterminate the placement, but Reginaldo Eustaquio,
Dealer Trainee in BPI's Money Market Department, who received the
call and who happened to be alone in the trading room at the time, told
her "trading time" was over for the day, which was a Friday, and
suggested that she call again the following week. The promissory note
the caller wanted to preterminate was a roll-over of an earlier 50-day
money market placement that had matured on September 24, 1981.
Later that afternoon, Eustaquio conveyed the request for
pretermination to the officer who before had handled Eligia G.
Fernando's account, Penelope Bulan, but Eustaquio was left to attend
to the pretermination process.
The next Monday, October 12, 1981, in the morning, the caller of the
previous Friday followed up with Eustaquio, merely by phone again, on
the pretermination of the placement. Although not familiar with the
voice of the real Eligia G. Fernando, Eustaquio "made certain" that the
caller was the real Eligia G. Fernando by "verifying" that the details the
caller gave about the placement tallied with the details in "the
ledger/folder" of the account. Eustaquio knew the real Eligia G.
Fernando to be the Treasurer of Philippine American Life Insurance
Company (Philamlife) since he was handling Philamlife's corporate
money market account. But neither Eustaquio nor Bulan who originally
handled Fernando's account, nor anybody else at BPI, bothered to call
up Fernando at her Philamlife office to verify the request for
pretermination.
Informed that the placement would yield less than the maturity value
because of its pretermination, the caller insisted on the pretermination
just the same and asked that two checks be issued for the proceeds,
one for P1,800,000.00 and the second for the balance, and that the
checks be delivered to her office at Philamlife.
Eustaquio, thus, proceeded to prepare the "purchase order slip" for the
requested pretermination as required by office procedure, and from his
desk, the papers, following the processing route, passed through the
position analyst, securities clerk, verifier clerk and documentation clerk,
before the two cashier's checks, nos. 021759 and 021760 for
P1,800,000.00 and P613,215.16, respectively, both payable to Eligia
G. Fernando, covering the preterminated placement, were prepared.
The two cashier's checks, together with the papers consisting of the
money market placement was to be preterminated and the promissory
note (No. 35623) to be preterminated, were sent to Gerlanda E. de
Castro and Celestino Sampiton, Jr., Manager and Administrative
Assistant, respectively, in BPI's Treasury Operations Department, both
authorized signatories for BPI, who signed the two checks that very
morning. Having been singed, the checks now went to the dispatcher
for delivery.
Later in the same morning, however, the same caller changed the
delivery instructions; instead of the checks being delivered to her office
at Philamlife, she would herself pick up the checks or send her niece,
Rosemarie Fernando, to pick them up. Eustaquio then told her that if it
were her niece who was going to get the checks, her niece would have
to being a written authorization from her to pick up the checks. This
telephone conversation ended with the caller's statement that
"definitely" it would be her niece, Rosemarie Fernando, who would pick
up the checks. Thus, Eustaquio had to hurriedly go to the dispatcher,
Bernardo Laderas, to tell him of the new delivery instructions for the
checks; in fact, he changed the delivery instruction on the purchase
order slip, writing thereon "Rosemarie Fernando release only with
authority to pick up.
It was, in fact Rosemarie Fernando who got the two checks from the
dispatcher, as shown by the delivery receipt. Actually, as it turned out,
the same impersonated both Eligia G. Fernando and Rosemarie
Fernando. Although the checks represented the termination proceeds
of Eligia G. Fernando's placement, not just a roll-over of the placement,
the dispatcher failed to get or to require the surrender of the
promissory note evidencing the placement. There is also no showing
that Eligia G. Fernando's purported signature on the letter requesting
the pretermination and the latter authorizing Rosemarie Fernando to
pick up the two checks, both of which letters were presumably handed
to the dispatcher by Rosemarie Fernando, was compared or verified
with Eligia G. Fernando's signature in BPI's file. Such purported
signature has been established to be forged although it has a "close
similarity" to the real signature of Eligia G. Fernando (TSN of January
15, 1985, pp. 24 and 26).
The story's scene now shifted when, in the afternoon of October 13,
1981, a woman who represented herself to be Eligia G. Fernando
applied at CBC's Head Office for the opening of a current account.
She was accompanied and introduced to Emily Sylianco Cuaso, Cash
Supervisor, by Antonio Concepcion whom Cuaso knew to have
opened, earlier that year, an account upon the introduction of Valentin
Co, a long-standing "valued client" of CBC. What Cuaso indicated in
the application form, however, was that the new client was introduced
by Valentin Co, and with her initials on the form signifying her approval,
she referred the application to the New Accounts Section for
processing. As finally proceeds, the application form shows the
signature of "Eligia G. Fernando", "her" date of birth, sex, civil status,
nationality, occupation ("business woman"), tax account number, and
initial deposit of P10,000.00. This final approval of the new current
account is indicated on the application form by the initials of Regina G.
Dy, Cashier, who did not interview the new client but affixed her initials
on the application form after reviewing it. The new current account was
given the number: 26310-3.
The following day, October 14, 1981, the woman holding herself out as
Eligia G. Fernando deposited the two checks in controversy with
Current Account No. 126310-3. Her endorsement on the two checks
was found to conform with the depositor's specimen signature. CBC's
guaranty of prior endorsements and/or lack of endorsement was then
stamped on the two checks, which CBC forthwith sent to clearing and
which BPI cleared on the same day.
Two days after, withdrawals began on Current Account No. 26310-3:
On October 16, 1981, by means of Check No. 240005 dated the same
day for P1,000,000.00, payable to "cash", which the woman holding
herself out as Eligia G. Fernando encashed over the counter, and
Check No. 240003 dated October 15, 1981 for P48,500.00, payable to
"cash" which was received through clearing from PNB Pasay Branch;
on October 19, 1981, by means of Check No. 240006 dated the same
day for P1,000,000.00, payable to "cash," which the woman identifying
herself as Eligia G. Fernando encashed over the counter; on October
22, 1981, by means of Check No. 240007 dated the same day for
P370,000.00, payable to "cash" which the woman herself also
encashed over the counter; and on November 4, 1981, by means of
Check No. 240001 dated November 3, 1981 for P4,100.00, payable to
"cash," which was received through clearing from Far East Bank.
All these withdrawals were allowed on the basis of the verification of
the drawer's signature with the specimen signature on file and the
sufficiency of the funds in the account. However, the balance shown in
the computerized teller terminal when a withdrawal is serviced at the
counter, unlike the ledger or usual statement prepared at month-end,
does not show the account's opening date, the amounts and dates of
deposits and withdrawals. The last withdrawal on November 4, 1981
left Current Account No. 26310-3 with a balance of only P571.61.
The day of reckoning came on November 11, 1981, the maturity date
of Eligia G. Fernado's money market placement with BPI, when the
real Eligia G. Fernando went to BPI for the roll-over of her placement.
She disclaimed having preterminated her placement on October 12,
1981. She executed an affidavit stating that while she was the payee of
the two checks in controversy, she never received nor endorsed them
and that her purported signature on the back of the checks was not
hers but forged. With her surrender of the original of the promissory
note (No. 35623 with maturity value of P2,462,243.19) evidencing the
placement which matured that day, BPI issued her a new promissory
note (No. 40314 with maturity date of December 23, 1981 and maturity
value of P2,500.266.77) to evidence a roll-over of the placement.
On November 12, 1981, supported by Eligia G. Fernando's affidavit,
BPI returned the two checks in controversy to CBC for the reason
"Payee's endorsement forged". A ping-pong started when CBC, in turn,
returned the checks for reason "Beyond Clearing Time", and the
stoppage of this ping-pong, as we mentioned at the outset, prompted
the filing of this case.
Investigation of the fraud by the Presidential Security Command led to
the filing of criminal actions for "Estafa Thru Falsification of
Commercial Documents" against four employees of BPI, namely
Quirino Victorio, Virgilio Gayon, Bernardo Laderas and Jorge Atayan,
and the woman who impersonated Eligia G. Fernando, Susan Lopez
San Juan. Victorio and Gayon were both bookkeepers in BPI's Money
12 |TORTS AND DAMAGES
Market Operations Department, Laderas was a dispatcher in the same
department. . . . (Rollo, pp. 74-79)
The Arbitration Committee ruled in favor of petitioner BPI. The
dispositive portion of the decision reads:
WHEREFORE, we adjudge in favor of the Bank of the Philippine
Islands and hereby order China Banking Corporation to pay the former
the amount of P1,206,607.58 with interest thereon at 12% per
annum from August 12, 1983, or the date when PCHC, pursuant to its
procedure for compulsory arbitration of the ping-pong checks under
Stockholders' Resolution No. 6-83 was implemented, up to the date of
actual payment.
Costs of suit in the total amount of P7,250.00 are to be assessed the
litigant banks in the following proportion:
a) Plaintiff BPI —– P1,812.50
b) Defendant China — P5,437.50
Total Assessment — P7,250.00
conformably with PCHC Resolution Nos. 46-83 dated October 25,
1983 and 4-85 dated February 25, 1985.
The PCHC is hereby directed to effect the corresponding entries to the
litigant banks' clearing accounts in accordance with the foregoing
decision. (Rollo, pp. 97-98)
However, upon motion for reconsideration filed by respondent CBC,
the Board of Directors of the PCHC reversed the Arbitration
Committee's decision in its Order, the dispositive portion of which
reads:
WHEREFORE, the Board hereby reconsiders the Decision of the
Arbitration Committee dated March 24, 1986 in Arbicom Case No. 183-
029 and in lieu thereof, one is rendered modifying the decision so that
the Complaint of BPI is dismissed, and on the Counterclaim of CBC,
BPI is sentenced to pay CBC the sum of P1,206,607.58. In view of the
facts, no interest nor attorney's fees are awarded. BPI shall also bear
75% or P5,437.50 and CBC, 25% or P1,812.50 of the cost of the
Arbitration proceedings amounting to P7,250.00.
The PCHC is hereby directed to debit the clearing account of the BPI
the sum of P1,206,607.58 and credit the same to that of CBC. The cost
of Arbitration proceedings are to be debited from the accounts of the
parties in the proportion above stated. (Rollo, pp. 112-113)
BPI then filed a petition for review of the abovestated order with the
Regional Trial Court of Makati. The trial court dismissed the petition but
modified the order as can be gleaned from the dispositive portion of its
decision quoted earlier.
Not satisfied with the trial court's decision petitioner BPI filed with us a
petition for review on certiorari under Rule 45 of the Rules of Court.
The case was docketed as G.R. No. 96376. However, in a Resolution
dated February 6, 1991, we referred the case to the Court of Appeals
for proper determination and disposition. The appellate court affirmed
the trial court's decision.
Hence, this petition.
In a resolution dated May 20, 1992 we gave due course to the petition:
Petitioner BPI now asseverates:
I.THE DECISION AND RESOLUTION OF THE RESPONDENT
COURT LEAVES THE UNDESIRABLE RESULT OF RENDERING
NUGATORY THE VERY PURPOSE FOR THE UNIFORM BANKING
PRACTICE OF REQUIRING THE CLEARING GUARANTEE OF
COLLECTING BANKS.
II.CONTRARY TO THE RULING OF THE RESPONDENT COURT,
THE PROXIMATE CAUSE FOR THE LOSS OF THE PROCEEDS OF
THE TWO CHECKS IN QUESTION WAS THE NEGLIGENCE OF THE
EMPLOYEES OF CBC AND NOT BPI; CONSEQUENTLY, EVEN
UNDER SECTION 23 OF THE NEGOTIABLE INSTRUMENTS LAW,
BPI WAS NOT PRECLUDED FROM RAISING THE DEFENSE OF
FORGERY.
III.THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR
IN FAILING TO APPRECIATE THE FACT THAT CBC HAD THE
"LAST CLEAR CHANCE" OF AVOIDING THE LOSS OCCASIONED
BY THE FRAUDULENT ACTS INVOLVED IN THE INSTANT CASE.
The main issues raised in the assignment of errors are: When a bank
(in this case CBC) presents checks for clearing and payment, what is
the extent of the bank's warranty of the validity of all prior
endorsements stamped at the back of the checks? In the event that the
payee's signature is forged, may the drawer/drawee bank (in this case
BPI) claim reimbursement from the collecting bank [CBC] which earlier
paid the proceeds of the checks after the same checks were cleared
by petitioner BPI through the PCHC?
Anent the first issue, petitioner BPI contends that respondent CBC's
clear warranty that "all prior endorsements and/or lack of
endorsements guaranteed" stamped at the back of the checks was an
unrestrictive clearing guaranty that all prior endorsements in the
checks are genuine. Under this premise petitioner BPI asserts that the
presenting or collecting bank, respondent CBC, had an unquestioned
liability when it turned out that the payee's signature on the checks
were forged. With these circumstances, petitioner BPI maintains that
considerations of relative negligence becomes totally irrelevant.
In sum, petitioner BPI theorizes that the Negotiable Instruments Law,
specifically Section 23 thereof is not applicable in the light of the
absolute liability of the representing or collecting bank as regards
forged endorsements in consonance with the clearing guarantee
requirement imposed upon the presenting or collecting banks "as it is
worded today."
Petitioner BPI first returned to CBC the two (2) checks on the ground
that "Payee's endorsement (was) forged" on November 12, 1981. At
that time the clearing regulation then in force under PCHC's Clearing
House Rules and Regulations as revised on September 19, 1980
provides:
Items which have been the subject of material alteration or items
bearing a forged endorsement when such endorsement is necessary
for negotiation shall be returned within twenty four (24) hours after
discovery of the alteration or the forgery, but in no event beyond the
period prescribed by law for the filing of a legal action by the returning
bank/branch institution or entity against the bank/branch, institution or
entity sending the same. (Section 23)
In the case of Banco de Oro Savings and Mortgage Bank v. Equitable
Banking Corporation (157 SCRA 188 [1988]) the clearing regulation
(this is the present clearing regulation) at the time the parties' dispute
occurred was as follows:
Sec. 21. . . . .
Items which have been the subject of material alteration or items
bearing forged endorsement when such endorsement is necessary for
negotiation shall be returned by direct presentation or demand to the
Presenting Bank and not through the regular clearing house facilities
within the period prescribed by law for the filing of a legal action by the
returning bank/branch, institution or entity sending the same.
It is to be noted that the above-cited clearing regulations are
substantially the same in that it allows a return of a check "bearing
forged endorsement when such endorsement is necessary for
negotiation" even beyond the next regular clearing although not
beyond the prescriptive period "for the filing of a legal action by the
returning bank."
Bearing in mind this similarity in the clearing regulation in force at the
time the forged checks in the present case and the Banco de Oro case
were dishonored and returned to the presenting or collecting banks, we
can be guided by the principles enunciated in the Banco de Oro case
on the relevance of negligence of the drawee vis-a-vis the forged
checks.
The facts in the Banco de Oro case are as follows: Sometime in March,
April, May and August 1983 Equitable Banking Corporation through its
Visa Card Department drew six (6) crossed Manager's check with the
total amount of Forty Five Thousand Nine Hundred and Eighty Two
Pesos and Twenty Three Centavos (P45,982.23) and payable to
certain member establishments of Visa Card. Later, the checks were
deposited with Banco de Oro to the credit of its depositor, a certain
Aida Trencio. Following normal procedures, and after stamping at the
back of the checks the endorsements: "All prior and/or lack of
endorsements guaranteed" Banco de Oro sent the checks for clearing
through the PCHC. Accordingly, Equitable Banking Corporation paid
the checks; its clearing amount was debited for the value of the checks
and Banco de Oro's clearing account was credited for the same
amount. When Equitable Banking Corporation discovered that the
endorsements at the back of the checks and purporting to be that of
the payees were forged it presented the checks directly to Banco de
Oro for reimbursement. Banco de Oro refused to reimburse Equitable
Banking Corporation for the value of the checks. Equitable Banking
Corporation then filed a complaint with the Arbitration Committees of
the PCHC. The Arbiter, Atty. Ceasar Querubin, ruled in favor of
Equitable Banking Corporation. The Board of Directors of the PCHC
affirmed the Arbiter's decision. A petition for review of the decision filed
by Banco de Oro with the Regional Trial Court of Quezon City was
dismissed. The decision of the PCHC was affirmed in toto.
One of the main issues threshed out in this case centered on the effect
of Banco de Oro's (representing or collecting bank) guarantee of "all
prior endorsements and/or lack of endorsements" at the back of the
checks. A corollary issue was the effect of the forged endorsements of
the payees which were late discovered by the Equitable Banking
Corporation (drawee bank) resulting in the latter's claim for
reimbursement of the value of checks after it paid the proceeds of the
checks.
We agreed with the following disquisition of the Regional Trial Court, to
wit:
Anent petitioner's liability on said instruments, this court is in full accord
with the ruling of the PCHC Board of Directors that:
In presenting the checks for clearing and for payment, the defendant
made an express guarantee on the validity of "all prior endorsements."
Thus, stamped at the back of the checks are the defendant's clear
warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK OF
ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff
would not have paid on the checks.
No amount of legal jargon can reverse the clear meaning of
defendant's warranty. As the warranty has proven to be false and
inaccurate, the defendant is liable for any damage arising out of the
falsity of its representation.
The principle of estoppel, effectively prevents the defendant from
denying liability for any damage sustained by the plaintiff which, relying
upon an action or declaration of the defendant, paid on the checks.
The same principle of estoppel effectively prevents the defendant from
denying the existence of the checks. (pp. 10-11, Decision, pp. 43-
44, Rollo) (at pp. 194-195)
We also ruled:
13 |TORTS AND DAMAGES
Apropos the matter of forgery in endorsements, this Court has
presently succintly emphasized 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. This is laid down in the case of
PNB v. National City Bank. (63 Phil. 1711) In another case, this court
held that if the drawee-bank discovers that the signature of the payee
was forged after it has paid the amount of the check to the holder
thereof, it can recover the amount paid from the collecting bank. xxx
xxx xxx
The point that comes uppermost is whether the drawee bank was
negligent in failing to discover the alteration or the forgery. (Emphasis
supplied) xxx xxx xxx
The court reproduces with approval the following disquisition of the
PCHC in its decision. xxx xxx xxx
III. Having Violated Its Warranty On Validity Of All Endorsements,
Collecting Bank Cannot Deny Liability To Those Who Relied On Its
Warranty. xxx xxx xxx
The damage that will result if judgment is not rendered for the plaintiff
is irreparable. The collecting bank has privity with the depositor who is
the principal culprit in this case. The defendant knows the
depositor; her address and her history. Depositor is defendant's
client. It has taken a risk on its depositor when it allowed her to collect
on the crossed-checks.
Having accepted the crossed checks from persons other than the
payees, the defendant is guilty of negligence; the risk of wrongful
payment has to be assumed by the defendant. (Emphasis supplied, at
pp. 198-202)
As can be gleaned from the decision, one of the main considerations in
affirming the PCHC's decision was the finding that as between the
drawee bank (Equitable Bank) and the representing or collecting bank
(Banco de Oro) the latter was negligent and thus responsible for undue
payment.
Parenthetically, petitioner BPI's theory that the present clearing
guarantee requirement imposed on the representing or collecting bank
under the PCHC rules and regulations is independent of the
Negotiable Instruments Law is not in order.
Another reason why the petitioner's theory is uncalled for is the fact
that the Negotiable Instruments Law (Act No. 2031) applied to
negotiable instruments as defined under section one thereof.
Undeniably, the present case involves checks as defined by and under
the coverage of the Negotiable Instruments Law. To affirm the theory
of the petitioner would, therefore, violate the rule that rules and
regulations implementing the law should conform to the law, otherwise
the rules and regulations are null and void. Thus, we held Shell
Philippines, Inc. v. Central Bank of the Philippines (162 SCRA 628
[1988]):
. . . while it is true that under the same law the Central Bank was given
the authority to promulgate rules and regulations to implement the
statutory provision in question, we reiterate the principle that this
authority is limited only to carrying into effect what the law being
implemented provides.
In People v. Maceren (79 SCRA 450, 458 and 460), this Court ruled
that:
Administrative regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the
law, and should be for the sole purpose of carrying into effect its
general provisions. By such regulations, of course, the law itself cannot
be extended. (U.S. v. Tupasi Molina, supra). An administrative agency
cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419,
422; Teoxon v. Members of the Board of Administrators, L-25619,
June 30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L-
28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-
21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the
mode or proceeding to carry into effect the law as it has been enacted.
The power cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. Rules
that subvert the statute cannot be sanctioned. (University of Santo
Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-
46. as to invalid regulations, see Collector of Internal Revenue v.
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v.
Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340,
349). xxx xxx xxx
. . . The rule or regulation should be within the scope of the statutory
authority granted by the legislature to the administrative agency.
(Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co.,
Inc. v. Social Security Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation
issued to implement said law the basic law prevails because said rule
or regulation cannot go beyond the terms and provisions of the basic
law (People v. Lim 108 Phil. 1091). (at pp. 633-634)
Section 23 of the Negotiable Instruments Law states:
When signature is forged or made without the authority of the person
whose signature it purports to be, it is wholly inoperative and no right to
retain the instrument, or to give discharge therefore, or to enforce
payment thereof, against any party thereto, can be acquired through or
under such forged signature, unless the party against whom it is
sought to enforce such right is precluded from setting up the forgery or
want of authority.
There are two (2) parts of the provision. The first part states the
general rule while the second part states the exception to the general
rule. The general rule is to the effect that a forged signature is "wholly
inoperative", and payment made "through or under such signature" is
ineffectual or does not discharge the instrument. The exception to this
rule is when the party relying in the forgery is "precluded from setting
up the forgery or want of authority. In this jurisdiction we
recognize negligence of the party invoking forgery as an exception to
the general rule. (See Banco de Oro Savings and Mortgage Bank v.
Equitable Banking Corporation supra; Philippine National Bank v.
Quimpo, 158 SCRA 582 [1988]; Philippine National Bank v. Court of
Appeals, 25 SCRA 693 [1968]; Republic v. Equitable Banking
Corporation, 10 SCRA 8 [1964]; National Bank v. National City Bank of
New York, 63 Phil. 711 [1936]; San Carlos Milling Co. v. Bank of P.I.,
59 Phil. 59 [1933]). In these cases we determined the rights and
liabilities of the parties under a forged endorsement by looking at the
legal effects of the relative negligence of the parties thereto.
In the present petition the payee's names in the two (2) subject checks
were forged. Following the general rule, the checks are "wholly
inoperative" and of no effect. However, the underlying circumstances
of the case show that the general rule on forgery is not applicable. The
issue as to who between the parties should bear the loss in the
payment of the forged checks necessities the determination of the
rights and liabilities of the parties involved in the controversy in relation
to the forged checks.
The records show that petitioner BPI as drawee bank and respondent
CBC as representing or collecting bank were both negligent resulting in
the encashment of the forged checks.
The Arbitration Committee in its decision analyzed the negligence of
the employees of petitioner BPI involved in the processing of the pre-
termination of Eligia G. Fernando's money market placement and in
the issuance and delivery of the subject checks in this wise:
a) The impostor could have been readily unmasked by a mere
telephone call, which nobody in BPI bothered to make to Eligia G.
Fernando, a vice-president of Philamlife (Annex C, p. 13).
b) It is rather curious, too, that the officer who used to handle Eligia G.
Fernando's account did not do anything about the account's pre-
termination (Ibid, p. 13).
c) Again no verification appears to have been made by (sic) Eligia G.
Fernando's purported signature on the letter requesting the pre-
termination and the letter authorizing her niece to pick-up the checks,
yet, her signature was in BPI's file (Ibid., p. 13).
d) Another step that could have foiled the fraud, but which BPI
neglected to take, was requiring before the two checks in controversy
were delivered, the surrender of the promissory note evidencing the
money market placement that was supposedly pre-terminated. (Rollo,
p. 13).
The Arbitration Committee, however, belittled petitioner BPI's
negligence compared to that of respondent CBC which it declared as
graver and the proximate cause of the loss of the subject checks to the
impostor who impersonated Eligia G. Fernando. Petitioner BPI now
insists on the adoption of the Arbitration Committee's evaluation of the
negligence of both parties, to wit:
a) But what about the lapses of BPI's employees who processed the
pretermination of Eligia G. Fernando's placement and issued the
checks? We do not think it was a serious lapse not to confirm the
telephone request for pretermination purportedly made by Eligia G.
Fernando, considering that it is common knowledge that business in
the money market is done mostly by telephone. Then, too, the initial
request of the caller was for the two checks representing the
pretermination proceeds to be delivered to "her" office, meaning Eligia
G. Fernando's office at Philamlife, this clever ruse must have put off
guard the employee preparing the "purchase order slip", enough at
least for him to do away with having to call Eligia G. Fernando at her
office. (Annex C at p. 17).
b) We also do not think it unusual that Penelope Bulan, who used to
handle Eligia G. Fernando's account, should do nothing about the
request for pretermination and leave it to Eustaquio to process the
pretermination. In a bank the of BPI, it would be quite normal for an
officer to take over from another the handling of an account. (Ibid. p.
17)
c) The failure to verify or compare Eligia G. Fernando's purported
signature on the letter requesting the pretermination and the letter
authorizing the pick-up of the checks in controversy with her signature
in BPI's file showed lack of care and prudence required by the
circumstances, although it is doubtful that such comparison would
have disclosed the deception considering the "close similarity"
between her purported signature and her signature in BPI's file.
(Ibid., p. 17).
d) A significant lapse was, however, committed when the two checks in
controversy were delivered without requiring the surrender of the
promissory note evidencing the placement that was supposedly
preterminated. Although, as we already said, it is hard to determine
whether the failure to require the surrender of the promissory note was
a deliberate act of Laderas, the dispatcher, or simply because the
14 |TORTS AND DAMAGES
"purchase order slip" note, (sic) the fact remains that such failure
contributed to the consummation of the fraud. (Ibid., p. 17-18)
The Arbitration Committee Decision's conclusion was expressed thus
— Banking Act which penalizes any officer-employee or agent of any
Except for Laderas, not one of the BPI personnel tasked with the
pretermination of Eligia G. Fernando's placement and the issuance of
the pretermination checks colluded in the fraud, although there may
have been lapses of negligence on their part which we shall discuss
later. The secreting out of BPI of Fernando's specimen signature,
which, as admitted by the impostor herself (Exhibit E-2, page 5),
helped her in forging Fernando's signature was no doubt an "inside
job" but done by any of the four employees colluding in the fraud, not
by the personnel directly charged with the custody of Fernando's
records.
With respect to the negligence of the CBC employees in the payment
of the two (2) BPI cashier's checks involved in this case, the Arbitration
Committee's Decision made incontrovertible findings undisputed in the
statement of facts found in the Court of Appeals' decision of 8 August
1991, the Regional Trial Court decision of 28 November 1990 and the
PCHC Board of Directors' Order of 26 August 1986 (Annexes A, E, D,
respectively). These findings point to negligence of the CBC
employees which led to: (a) the opening of the impostor's current
account in the name of Eligia G. Fernando; (b) the deposit of said
account of the two (2) checks in controversy and (c) the withdrawal of
their proceeds from said account.
The Arbitration Committee found that —
1. Since the impostor presented only her tax account number as a
means of identification, we feel that Emily Sylianco Cuaso, Cash
Supervisor, approved the opening of her current account in the name
of Eligia G. Fernando on the strength of the introduction of Antonio
Concepcion who had himself opened an account earlier that year. That
Mrs. Cuaso was not comfortable with the introduction of the new
depositor by Concepcion is betrayed by the fact that she made it
appear in the application form that the new depositor was introduced
by Valentin Co a long-standing valued client of CBC who had
introduced Concepcion when he opened his account. We find this
misrepresentation significant because when she reviewed the
application form she assumed that the new client was introduced by
Valentin Co as indicated in the application form (tsn of March 19, 1985,
page 13). Thus we find that the impostor was able to open with CBC's
current account in the name of Eligia G. Fernando due to the
negligence, if not misrepresentation, of its Cash Supervisor, (Annex C,
p. 18).
2. Even with negligence attending the impostor's opening of a current
account, her encashment of the two checks in controversy could still
have been prevented if only the care and diligence demanded by the
circumstances were exercised. On October 14, 1981, just a day after
she opened her account, the impostor deposited the two checks which
had an aggregate value of P2,413,215.16, which was grossly
disproportionate to her initial deposit of P10,000. The very date of both
checks, October 12, 1981, should have tipped off the real purpose of
the opening of the account on October 13, 1981. But what surely can
be characterized only as abandonment of caution was allowing the
withdrawal of the checks' proceeds which started on October 16, 1981
only two days after the two checks were deposited; by October 22,
1981, the account had been emptied of the checks' proceeds. (Annex
C, p. 19).
3. We cannot accept CBC's contention that "big withdrawals" are
"usual business" with it. Huge withdrawals might be a matter of course
with an established account but not for a newly opened account,
especially since the supposed check proceeds being withdrawn were
grossly disproportionate to the initial cash deposit. (Annex C, p. 19).
As intimated earlier, the foregoing findings of fact were not materially
disputed either by the respondent PCHC Board of Directors or by the
respondent courts (compare statement of facts of respondent court as
reproduced in pp. 9-11 of this petition).
Having seen the negligence of the employees of both Banks, the
relevant question is: which negligence was graver. The Arbitration
Committee's Decision found and concluded thus —
Since there were lapses by both BPI and CBC, the question is: whose
negligence was the graver and which was the proximate cause of the
loss? Even viewing BPI's lapses in the worst light, it can be said that
while its negligence may have introduced the two checks in
controversy into the commercial stream. CBC's lack of care in
approving the opening with it of the impostor's current account, and its
allowing the withdrawal's of the checks' proceeds, the aggregate value
of which was grossly disproportionate to the initial cash deposit, so
soon after such checks were deposited, caused the "payment" of the
checks. Being closest to the vent of loss, therefore, CBC's negligence
must be held to be proximate cause of the loss. (Annex C, pp. 19-20)
(Rollo, pp. 38-41)
While it is true that the PCHC Board of Directors, and the lower courts
did not dispute the findings of facts of the Arbitration Committee, the
PCHC Board of Directors evaluated the negligence of the parties, to
wit:
The Board finds the ruling that the negligence of the employees of
CBC is graver than that of the BPI not warranted by the facts because:
1. The acts and omissions of which BPI employees are guilty are not
only negligent but criminal as found by the decision.
2. The act of BPI's dealer-trainee Eustaquio of disclosing information
about the money market placement of its client over the telephone is a
violation, if not of Republic Act 1405, of Sec. 87 (a) of the General
banking institution who discloses to any unauthorized person any
information relative to the funds or properties in the custody of the
bank belonging to private individual, corporations, or any other entity;
and the bland excuse given by the decision that "business in the
money market is done mostly by the telephone" cannot be accepted
nor tolerated for it is an elementary rule of law that no custom or usage
of business can override what a law specifically provides. (Ang Tek v.
CA, 87 Phil. 383).
3. The failure of BPI employees to verify or compare Eligia G.
Fernando's purported signature on the letter requesting for pre-
termination and the letter authorizing the pick-up of the checks in
controversy with the signatures on file is not even justified but admitted
in the decision as showing lack of care and prudence required by the
circumstances. The conjectural excuse made in the decision that "it is
doubtful that such comparison would have disclosed the deception"
does not give an excuse for the omission by BPI employees of the act
of verifying the signature, a duty which is the basic requirement of all
acts in the bank. From the very first time an employee enters the
services of a bank up to the time he becomes the highest officer
thereof, the cautionary rule is drilled on him to always be sure that
when he acts on the basis of any signature presented before him, the
signature is to be verified as genuine and that if the bank acts on the
basis of a forgery of such signature, the bank will be held liable. There
can be no excuse therefore for such an omission on the part of BPI
employees.
4. The decision admits that:
A significant lapse was, however, committed when the two checks in
controversy were delivered without requiring the surrender of the
promissory note evidencing the placement that was supposedly
preterminated.
This omission of the BPI to require the surrender of the promissory
notes evidencing the placement is justified by the decision by saying
that Sec. 74 of the Negotiable Instrument Law is not violated by this
omission of the BPI employees because said provision is intended for
the benefit of the person paying (in this case the BPI) so that since the
omission to surrender having been waived by BPI, so the non-
surrender does not invalidate the payment. The fallacy of this
argument is that the in this case is: whether or not such non-surrender
is a necessary ingredient in the cause of the success of the fraud and
not whether or not the payment was valid. This excuse may perhaps
be acceptable if the omission did not cause damage to any other
person. In this case, however, it did cause tremendous damage.
Moreover, this statement obviously overlooks the provision in Art. 1240
of the Civil Code requiring the payor (which in this case is the BPI) to
be sure he pays to the right person and as Art. 1242 states, he can
claim good faith in paying to the right person only if he pays to the
person possession of the credit (which in this case is the promissory
note evidencing the money market placement). Clearly therefore, the
excuse given in the decision for the non-surrender of this promissory
note evidencing the money market placement cannot be accepted. xxx
xxx xxx
The decision, however, discusses in detail the negligent acts of the
CBC in its lapses or certain requirements in the opening of the account
and in allowing withdrawals against the deposited checks soon after
the deposit thereof. As stated by the decision however, in
computerized banks the history of the account is not shown in the
computer terminal whenever a withdrawal is made.
The Board therefore believes that these withdrawals, without any
further showing that the CBC employees "had actual knowledge of the
infirmity or defect, or knowledge of such facts" (Sec. 56, Negotiable
Instruments Law) that their action in accepting their checks for deposit
and allowing the withdrawals against the same "amounted to bad faith"
cannot be considered as basis for holding CBC liable. (Rollo, pp. 107-
111)
Banks handle daily transactions involving millions of pesos. By the very
nature of their work the degree of responsibility, care and
trustworthiness expected of their employees and officials is far greater
than those of ordinary clerks and employees. For obvious reasons, the
banks are expected to exercise the highest degree of diligence in the
selection and supervision of their employees.
In the present case, there is no question that the banks were negligent
in the selection and supervision of their employees. The Arbitration
Committee, the PCHC Board of Directors and the lower court, however
disagree in the evaluation of the degree of negligence of the banks.
While the Arbitration Committee declared the negligence of respondent
CBC graver, the PCHC Board of Directors and the lower courts
declared that petitioner BPI's negligence was graver. To the extent that
the degree of negligence is equated to the proximate cause of the loss,
we rule that the issue as to whose negligence is graver is relevant. No
matter how many justifications both banks present to avoid
responsibility, they cannot erase the fact that they were both guilty in
not exercising extraordinary diligence in the selection and supervision
of their employees. The next issue hinges on whose negligence was
the proximate cause of the payment of the forged checks by an
impostor.
15 |TORTS AND DAMAGES
Petitioner BPI accuses the Court of Appeals of inconsistency when it
affirmed the PCHC's Board of Directors' Order but in the same breath
declared that the negligent acts of the CBC employees occurred
immediately before the actual loss.
In this regard petitioner BPI insists that the doctrine of last clear chance
enunciated in the case of Picart v. Smith (37 Phil. 809 [1918]) should
have been applied considering the circumstances of the case.
In the Picart case, Amado Picart was then riding on his pony over the
Carlatan Bridge at San Fernando, La Union when Frank Smith
approached from the opposite direction in a car. As Smith neared the
bridge he saw Picart and blew his horn to give warning of his
approach. When he was already on the bridge Picart gave two more
successive blasts as it appeared to him that Picart was not observing
the rule of the road. Picart saw the car coming and heard the warning
signals. An accident then ensued resulting in the death of the horse
and physical injuries suffered by Picart which caused him temporary
unconsciousness and required medical attention for several days.
Thereafter, Picart sued Smith for damages.
We ruled:
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse
and rider would pass over to the proper side; but as he moved toward
the center of the bridge it was demonstrated to his eyes that this would
not be done; and he must in a moment have perceived that it was too
late for the horse to cross with safety in front of the moving vehicle. In
the nature of things this change of situation occurred while the
automobile was yet some distance away; and from this moment it was
no longer within the power of the plaintiff to escape being run down by
going to a place of greater safety. The control of the situation had then
passed entirely to the defendant; and it was his duty to either to bring
his car to an immediate stop or, seeing that there were no other
persons on the bridge, to take the other side and pass sufficiently far
away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran starlight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the known nature of horses,
there was an appreciable risk that, if the animal in question was
unacquainted with automobiles, he might get excited and jump under
the conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion,
negligent in the eyes of the law.
The test by which 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. xxx xxx xxx
It goes without saying that the plaintiff himself was not free from fault,
for he was guilty of antecedent negligence in planting himself on the
wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted
that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances the law
is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party."
Applying these principles, petitioner BPI's reliance on the doctrine of
last clear chance to clear it from liability is not well-taken. CBC had
no prior notice of the fraud perpetrated by BPI's employees on the
pretermination of Eligia G. Fernando's money market placement.
Moreover, Fernando is not a depositor of CBC. Hence, a comparison
of the signature of Eligia G. Fernando with that of the impostor Eligia
G. Fernando, which respondent CBC did, could not have resulted in
the discovery of the fraud. Hence, unlike in the Picart case herein the
defendant, had he used reasonable care and caution, would have
recognized the risk he was taking and would have foreseen harm to
the horse and the plaintiff but did not, respondent CBC had no way to
discover the fraud at all. In fact the records fail to show that respondent
CBC had knowledge, actual or implied, of the fraud perpetrated by the
impostor and the employees of BPI.
However, petitioner BPI insists that even if the doctrine of proximate
cause is applied, still, respondent CBC should be held responsible for
the payment to the impostor of the two (2) checks. It argues that the
acts and omissions of respondent CBC are the cause "that set into
motion the actual and continuous sequence of events that produced
the injury and without which the result would not have occurred." On
the other hand, it assets that its acts and omissions did not end in a
loss. Petitioner BPI anchors its argument on its stance that there was
"a gap, a hiatus, an interval between the issuance and delivery of said
checks by petitioner BPI to the impostor and their actual payment of
CBC to the impostor. Petitioner BPI points out that the gap of one (1)
day that elapsed from its issuance and delivery of the checks to the
impostor is material on the issue of proximate cause. At this stage,
according to petitioner BPI, there was yet no loss and the impostor
could have decided to desist from completing the same plan and could
have held to the checks without negotiating them.
We are not persuaded.
In the case of Vda. de Bataclan, et al, v. Medina (102 Phil. 181 [1957]),
we had occasion to discuss the doctrine of proximate cause.
Briefly, the facts of this case are as follows:
At about 2:00 o'clock in the morning of September 13, 1952 a bus
carrying about eighteen (18) passengers on its way to Amandeo,
Cavite figured in an accident. While the bus was running, one of the
front tires burst and the bus began to zigzag until it fell into a canal on
the right side of the road and turned turtle. Some passengers managed
to get out from the overturned bus except for four (4) passengers,
among them, Bataclan. The passengers who got out heard shouts for
help from Bataclan and another passenger Lara who said they could
not get out from the bus. After half an hour, about ten men came, one
of them carrying a lighted torch made of bamboo with a wick on one
end fueled with petroleum. These men approached the overturned bus,
and almost immediately, a fierce fire started burning and all but
consuming the bus including the four (4) passengers trapped inside. It
turned out that as the bus overturned, gasoline began to leak and
escape from the gasoline tank on the side of the chassis spreading
over and permeating the body of the bus and the ground under and
around it. The lighted torch brought by one of the men who answered
the call for help set it on fire. On the same day, the charred bodies of
the trapped passengers were removed and identified. By reason of his
death, Juan Bataclan's wife and her children filed a suit for damages
against Maximo Medina, the operator and owner of the bus in the then
Court of First Instance of Cavite. The trial court ruled in favor of the
defendant. However, we reversed and set aside the trial court's
decision and said:
There is no question that under the circumstances, the defendant
carrier is liable. The only question is to what degree. The trial court
was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather the fire that burned the
bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though the must
have suffered, physical injuries, perhaps serious, was still alive and so
damages were awarded, not for his death, but for the physical
satisfactory definition of promote cause is found in Volume 38, pages
695-696 of American Jurisprudence, cited by plaintiffs-appellants in
their brief. It is as follows:
. . . 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. And more comprehensively,
the proximate legal cause in that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through
some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, on might
still contend that the proximate cause of his death was the fire and not
the overturning of the vehicle. But in the present case and under the
circumstances obtaining in the same, we do not hesitate to hold that
the proximate cause of the death of Bataclan was the overturning of
the bus, this for the reason that when the vehicle turned not only on its
side but completely on its back, the leaking of the gasoline from the
tank was not unnatural or unexpected; that the coming of the men with
a lighted torch was in response to the call for help, made not only by
the passengers, but most probably, by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in the
morning), the rescuers had to carry a light with them; and coming as
they did from a rural area where lanterns and flashlights were not
available, they had to use a torch, the most handy and available; and
what was more natural than that said rescuers should innocently
approach the overturned vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men
with the torch was to be expected and was natural sequence of the
overturning of the bus, the trapping of some of its passengers and the
call for outside help. (Emphasis Supplied, at pp. 185-187)
Again, applying the doctrine of proximate cause, petitioner BPI's
contention that CBC alone should bear the loss must fail. The gap of
one (1) day between the issuance and delivery of the checks bearing
the impostor's name as payee and the impostor's negotiating the said
forged checks by opening an account and depositing the same with
respondent CBC is not controlling. It is
not unnatural or unexpected that after taking the risk of impersonating
Eligia G. Fernando with the connivance of BPI's employees, the
impostor would complete her deception by encashing the forged
checks. There is therefore, greater reason to rule that the proximate
cause of the payment of the forged checks by an impostor was due to
the negligence of petitioner BPI. This finding, notwithstanding, we are
not inclined to rule that petitioner BPI must solely bear the loss of
16 |TORTS AND DAMAGES
P2,413,215.16, the total amount of the two (2) forged checks. Due care
on the part of CBC could have prevented any loss.
The Court cannot ignore the fact that the CBC employees closed their
eyes to the suspicious circumstances of huge over-the-counter
withdrawals made immediately after the account was opened. The
opening of the account itself was accompanied by inexplicable acts
clearly showing negligence. And while we do not apply the last clear
chance doctrine as controlling in this case, still the CBC employees
had ample opportunity to avoid the harm which befell both CBC and
BPI. They let the opportunity slip by when the ordinary prudence
expected of bank employees would have sufficed to seize it.
Both banks were negligent in the selection and supervision of their
employees resulting in the encashment of the forged checks by an
impostor. Both banks were not able to overcome the presumption of
negligence in the selection and supervision of their employees. It was
the gross negligence of the employees of both banks which resulted in
the fraud and the subsequent loss. While it is true that petitioner BPI's
negligence may have been the proximate cause of the loss,
respondent CBC's negligence contributed equally to the success of the
impostor in encashing the proceeds of the forged checks. Under these
circumstances, we apply Article 2179 of the Civil Code to the effect
that while respondent CBC may recover its losses, such losses are
subject to mitigation by the courts. (See Phoenix Construction Inc. v.
Intermediate Appellate Courts, 148 SCRA 353 [1987]).
Considering the comparative negligence of the two (2) banks, we rule
that the demands of substantial justice are satisfied by allocating the
loss of P2,413,215.16 and the costs of the arbitration proceeding in the
amount of P7,250.00 and the cost of litigation on a 60-40 ratio.
Conformably with this ruling, no interests and attorney's fees can be
awarded to either of the parties.
WHEREFORE, the questioned DECISION and RESOLUTION of the
Court of Appeals are MODIFIED as outlined above. Petitioner Bank of
the Philippine Islands shall be responsible for sixty percent (60%) while
respondent China Banking Corporation shall share forty percent (40%)
of the loss of TWO MILLION FOUR HUNDRED THIRTEEN
THOUSAND, TWO HUNDRED FIFTEEN PESOS and SIXTEEN
CENTAVOS (2,413,215.16) and the arbitration costs of SEVEN
THOUSAND, TWO HUNDRED FIFTY PESOS (7,250.00). The
Philippine Clearing House Corporation is hereby directed to effect the
corresponding entries to the banks' clearing accounts in accordance
with this decision. Costs in the same proportion against the Bank of the
Philippine Islands and the China Banking Corporation. SO ORDERED
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.
17 |TORTS AND DAMAGES
 [G.R. No. 6659. September 1, 1911.]
THE UNITED STATES, Plaintiff-Appellee, v. BAGGAY,
JR., Defendant-Appellant.Roman Lacson, for Appellant.
Acting Attorney-General Harvey, for Appellee.
SYLLABUS
1. CIVIL LIABILITY IN CRIME; INSANE PERSONS. — Civil liability
generally accompanies criminal liability, because every person liable
criminally is also liable for reparation of damage and for indemnification
for the harm done; but by express provision of the penal laws there
may be civil liability even when the perpetrator is held to be exempt
from criminal liability. Such is the case of a lunatic or demented person
who, in spite 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. Law and society are under obligation to
protect him, and, when so declared liable with his property for
reparation and indemnification, he is still entitled to reservation of what
is necessary for his decent maintenance, but this protection does not
exclude liability for damages caused to those who may have the
misfortune to suffer the consequences of his acts.
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 obligated to indemnify the heirs of 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 Peñarrubia, 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 likewise inflicted various
wounds on the women named Calbayan, 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 colmsel 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 time limit; for on 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,
when 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 a 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." virtua1aw library
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
guardianship, or power, or 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." virtua1aw library
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 from 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, or 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 himself 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.
[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.
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;not the amount. “It appears,”
says the award, “that on August 23, 1951, at 6:00 a.m. in Bo.
Sumangga, Mogpog, 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.
18 |TORTS AND DAMAGES
“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:
“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 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 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.
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., 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 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.
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: 5xxx 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.
19 |TORTS AND DAMAGES

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).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
20 |TORTS AND DAMAGES
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: 32xxx 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.
G.R. No. 124354 December 29, 1999
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.
KAPUNAN, J.:
21 |TORTS AND DAMAGES
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 patient's fate. 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. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals,
dated 29 May 1995, which overturned the decision 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 anesthesiologist's 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
patient's 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 patient's 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 patient's brain (Id., pp. 19-20). Immediately thereafter,
she went out of the operating room, and she told Rogelio E. Ramos
"that something wrong was . . . happening" (Ibid.). Dr. Calderon was
then able to intubate the patient.
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"
Thus, on 8 January 1986, petitioners filed a civil case 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 Erlinda's injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the 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 Erlinda's 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
22 |TORTS AND DAMAGES
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. x x x xxx 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. 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. 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. 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 the Reconsideration, but
after considering the Comment/Opposition, the former, for lack of
merit, is hereby DENIED. SO ORDERED. 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:
I.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. 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, 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 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 party's 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 believed 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 plaintiff's prima facie case,
and present a question of fact for defendant to meet with an
explanation. 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
defendant's want of care. 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. 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. 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. 17 Instead, it is considered
as merely evidentiary or in the nature of a procedural rule. 18 It is
regarded as a mode of proof, or a mere procedural of convenience
since it furnishes a substitute for, and relieves a plaintiff of, the burden
of producing specific proof of negligence. 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
23 |TORTS AND DAMAGES
proof. 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 someone's 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. 21
In the above requisites, the fundamental element is the "control of
instrumentality" which caused the damage. 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. 23
Medical malpractice 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. 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. 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. 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. 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. 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. 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. 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, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, 33 removal of
the wrong part of the body when another part was
intended, 34 knocking out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, 35 and loss of an eye while the
patient plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis, 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. 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. 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. 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. 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. 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. 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, 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. 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 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 Erlinda's comatose
24 |TORTS AND DAMAGES
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 intubation 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 have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden 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 xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: 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
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.
xxx xxx 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. 46
xxx xxx 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. 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. 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. 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 at 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. 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 Erlinda's 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. 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) 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 Erlinda's 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 patient's
medical records and visits with the patient, traditionally, the day before
elective surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and interpretation
of laboratory data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous
system, cardiovascular system, lungs and upper airway. 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. 56 Thus, physical
characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 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 patient's airway would go a long way towards
decreasing patient morbidity and mortality.
25 |TORTS AND DAMAGES
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 physician's
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). 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 be at the patient's beside 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.
Erlinda's case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation of
Erlinda's 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 Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral
anoxia which led to Erlinda's coma was due to
bronchospasm 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, 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. Jamora's
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. 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. Jamora's
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 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. 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 advanced in order to absolve them of any and all responsibility for
the patient's 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
Erlinda's 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. 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. 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 Erlinda's 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. 66 As stated in the testimony of
Dr. Hosaka, the lack of oxygen became apparent only after he noticed
26 |TORTS AND DAMAGES
that the nailbeds of Erlinda were already blue. 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. 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. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation of the patient's
airway prior to the operation. 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 patient's neck and oral area, defects which
would have been easily overcome by a prior knowledge of those
variations together with a change in technique. 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. 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," 73 it is the surgeon's responsibility to see to it that those under
him perform their task in the proper manner. Respondent Dr. Hosaka's
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 Erlinda's cholecystectomy, and was in fact over three hours late for
the latter's 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 Erlinda's 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," 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. 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 physician's 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 patient's 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 petitioner's condition. 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 former's responsibility under a
relationship of patria potestas. 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. 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 Erlinda's 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 2176 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. 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.
27 |TORTS AND DAMAGES
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. 81
In Valenzuela vs. Court of Appeals, 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 the
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 xxx xxx
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. 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 petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's 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 victim's condition. 84 The
husband and the children, all petitioners in this case, will have to live
with the day to day uncertainty of the patient's 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 family's 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 attorney's 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 physician's
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
attorney's fees; and, 5) the costs of the suit. SO ORDERED.
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and
FLOTILDE G. VILLEGAS, respondents.
DAVIDE, JR., J.:
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
Hammurabi1 then already provided: "If a physician make a deep
incision upon a man with his bronze lancet and cause the man's death,
or operate on the eye socket of a man with his bronze lancet and
destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
Hippocrates3 wrote what was to become part of the healer's oath: "I will
follow that method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. . . . While I continue to keep
this oath unviolated may it be granted me to enjoy life and practice the
art, respected by all men at all times but should I trespass and violate
this oath, may the reverse be my lot." At present, the primary objective
of the medical profession if the preservation of life and maintenance of
the health of the people.4
Needless to say then, when a physician strays from his sacred duty
and endangers instead the life of his patient, he must be made to
answer therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as
this case would show, let the act go uncondemned.
The petitioners appeal from the decision5 of the Court of Appeals of 11
May 1994 in CA-G.R. CV No. 30851, which reversed the decision6 of
21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of
Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental
Provincial Hospital, Dumaguete City from January 9, 1978 to
September 1989. Between 1987 and September, 1989 she was also
the Actg. Head of the Department of Obstetrics and Gynecology at the
said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September
21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance
of Dr. Doris Teresita Sy who was also a Resident Physician at the
same Hospital, C.I. and O.R. Nurse Arlene Diones and some student
nurses performed a simple caesarean section on Mrs. Villegas at the
Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas
delivered her first child, Rachel Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined at the Hospital until September
27, 1988 during which period of confinement she was regularly visited
by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of
the Hospital. . . and on that same day she paid Dr. Batiquin, thru the
latter's secretary, the amount of P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she had been taking up
to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Batiquin on October 31, 1988. . . certifying to her physical fitness to
return to her work on November 7, 1988. So, on the second week of
28 |TORTS AND DAMAGES
November, 1988 Mrs. Villegas returned to her work at the Rural Bank
of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end despite the medications administered by Dr. Batiquin.
When the pains became unbearable and she was rapidly losing weight
she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined
Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she
found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the
umbilicus which she suspected to be either a tumor of the uterus or an
ovarian cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs. Villegas had
[an] infection inside her abdominal cavity. The results of all those
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to
another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-
yellow discharge inside, an ovarian cyst on each of the left and right
ovaries which gave out pus, dirt and pus behind the uterus, and a
piece of rubber material on the right side of the uterus embedded on
[sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber
material which Dr. Kho described as a "foreign body" looked like a
piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". .
. . It could have been a torn section of a surgeon's gloves or could
have come from other sources. And this foreign body was the cause of
the infection of the ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery on September 21, 1988. 7
The piece of rubber allegedly found near private respondent Flotilde
Villegas's uterus was not presented in court, and although Dr. Ma.
Salud Kho Testified that she sent it to a pathologist in Cebu City for
examination,8 it was not mentioned in the pathologist's Surgical
Pathology Report.9
Aside from Dr. Kho's testimony, the evidence which mentioned the
piece of rubber are a Medical Certificate,10 a Progress Record,11 an
Anesthesia Record,12 a Nurse's Record,13 and a Physician's Discharge
Summary.14 The trial court, however, regarded these documentary
evidence as mere hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable to testify on the
facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"),
all the above documents were allegedly prepared by persons other
than Dr. Kho, and she merely affixed her signature on some of them to
express her agreement thereto. . . ."15 The trial court also refused to
give weight to Dr. Kho's testimony regarding the subject piece of
rubber as Dr. Kho "may not have had first-hand knowledge"
thereof,16 as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign
body that goes with the tissues but unluckily I don't know where the
rubber was. 1
The trial court deemed vital Dr. Victoria Batiquin's testimony that when
she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho
answered that there was rubber indeed but that she threw it
away."18 This statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that
offending "rubber" — (1) that it was sent to the Pathologist in Cebu as
testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as
told by her to Defendant. The failure of the Plaintiffs to reconcile these
two different versions serve only to weaken their claim against
Defendant Batiquin.19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and,
even without admitting the private respondents' documentary evidence,
deemed Dr. Kho's positive testimony to definitely establish that a piece
of rubber was found near private respondent Villegas's uterus. Thus,
the Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by
preponderance of evidence. The trial court itself had narrated what
happened to appellant Flotilde after the caesarean operation made by
appellee doctor. . . . After the second operation, appellant Flotilde
became well and healthy. Appellant Flotilde's troubles were caused by
the infection due to the "rubber" that was left inside her abdomen. Both
appellant; testified that after the operation made by appellee doctor,
they did not go to any other doctor until they finally decided to see
another doctor in January, 1989 when she was not getting any better
under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin
admitted on the witness stand that she alone decided when to close
the operating area; that she examined the portion she operated on
before closing the same. . . Had she exercised due diligence, appellee
Dr. Batiquin would have found the rubber and removed it before
closing the operating area.20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00
[deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses
together with doctor's fees in the total amount P9,900.00 (Exhs. G and
G-2)] for the second operation that saved her life.
For the miseries appellants endured for more than three (3) months,
due to the negligence of appellee Dr. Batiquin they are entitled to
moral damages in the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no longer bear children because
her uterus and ovaries were removed by Dr. Kho is not taken into
consideration as it is not shown that the removal of said organs were
the direct result of the rubber left by appellee Dr. Batiquin near the
uterus. What is established is that the rubber left by appellee caused
infection, placed the life of appellant Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint for
damages is REVERSED and SET ASIDE. Another judgment is hereby
entered ordering defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages; P100,000.00 as
and for moral damages; P20,000.00 as and for exemplary damages;
and P25,000.00 as and for attorney's fees plus the costs of litigation.
SO ORDERED.21
From the above judgment, the petitioners appealed to this Court
claiming that the appellate court: (1) committed grave abuse of
discretion by resorting to findings of fact not supported by the evidence
on record, and (2) exceeded its discretion, amounting to lack or excess
of jurisdiction, when it gave credence to testimonies punctured with
contradictions and falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition
for review on certiorari, there are exceptions, among which are when
the factual findings of the trial court and the appellate court conflict,
when the appealed decision is clearly contradicted by the evidence on
record, or when the appellate court misapprehended the facts.22
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The
petitioners contend that the Court of Appeals misappreciated the
following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case
this would turn out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where
the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis
supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was
based on hearsay. The Court of Appeals, on the other hand, concluded
that the underscored phrase was taken out of context by the trial court.
According to the Court of Appeals, the trial court should have likewise
considered the other portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside
the abdomen, there was an ovarian cyst on the left and side and there
was also an ovarian cyst on the right which, on opening up or freeing it
up from the uterus, turned out to be pus. Both ovaries turned out. . . to
have pus. And 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.
We agree with the Court of Appeals. The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber in
private respondent Villegas's abdomen, and that she sent it to a
laboratory and then to Cebu City for examination by a
pathologist.25 Not even the Pathologist's Report, although devoid of
any mention of a piece of rubber, could alter what Dr. Kho saw.
Furthermore, Dr. Kho's knowledge of the piece of rubber could not be
based on other than first-hand knowledge for, as she asserted before
the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents never
reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness
stand that when Dr. Batiquin confronted Dr. Kho about the foreign
body, the latter said that there was a piece of rubber but that she threw
it away. Although hearsay, Dr. Batiquin's claim was not objected to,
and hence, the same is admissible27 but it carries no probative
value.28 Nevertheless, assuming otherwise, Dr. Batiquin's statement
cannot belie the fact that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt Dr. Kho as
to what she did to the piece of rubber, i.e., whether she threw it away
or sent it to Cebu City, we are not justified in distrusting her as to her
recovery of a piece of rubber from private respondent Villegas's
abdomen. On this score, it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and disbelieve his
testimony with respect to other facts. And it has been aptly said that
even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions thereof
deemed worthy of belief may be credited.29
29 |TORTS AND DAMAGES
It is here worth noting that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in
the operation,30 and that there was neither any tear on Dr. Batiquin's
gloves after the operation nor blood smears on her hands upon
removing her gloves.31 Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris Sy, Dr.
Batiquin's assistant during the operation on private respondent
Villegas.32 But the trial court failed to recognize that the assertions of
Drs. Batiquin and Sy were denials or negative testimonies. Well-settled
is the rule that positive testimony is stronger than negative
testimony.33 Of course, as the petitioners advocate, such positive
testimony must come from a credible source, which leads us to the
second assigned error.
While the petitioners claim that contradictions and falsities punctured
Dr. Kho's testimony, a regarding of the said testimony reveals no such
infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was
frank throughout her turn on the witness stand. Furthermore, no motive
to state any untruth was ever imputed against Dr. Kho, leaving her
trustworthiness unimpaired.34 The trial court's following declaration
shows that while it was critical of the lack of care with which Dr. Kho
handled the piece of rubber, it was not prepared to doubt Dr. Kho's
credibility, thus only supporting our appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest when she testified
about her findings, but it can also be said that she did not take the
most appropriate precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should there be a "legal
problem" which she claim[s] to have anticipated.35
Considering that we have assessed Dr. Kho to be a credible witness,
her positive testimony [that a piece of rubber was indeed found in
private respondent Villega's abdomen] prevails over the negative
testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which
causes injury is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of things does not
happen in those who have the management use proper care, it affords
reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption
or inference that defendant was negligent, which arises upon proof that
[the] instrumentality causing injury was in defendant's exclusive
control, and that the accident was one which ordinary does not happen
in absence of negligence. Res ipsa loquitur is [a] rule of evidence
whereby negligence of [the] alleged wrongdoer may be inferred from
[the] mere fact that [the] accident happened provided [the] character of
[the] accident and circumstances attending it lead reasonably to belief
that in [the] absence of negligence it would not have occurred and that
thing which caused injury is shown to have been under [the]
management and control of [the] alleged wrongdoer. . . . Under [this]
doctrine
. . . the happening of an injury permits an inference of negligence
where plaintiff produces substantial evidence that [the] injury was
caused by an agency or instrumentality under [the] exclusive control
and management of defendant, and that the occurrence [sic] was such
that in the ordinary course of things would not happen if reasonable
care had been used. x x x 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.36
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the caesarean section were
under the exclusive control of Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence as to the actual culprit or
the exact cause of the foreign object finding its way into private
respondent Villegas's body, which, needless to say, does not occur
unless through the intersection of negligence. Second, since aside
from the caesarean section, private respondent Villegas underwent no
other operation which could have caused the offending piece of rubber
to appear in her uterus, it stands to reason that such could only have
been a by-product of the caesarean section performed by Dr. Batiquin.
The petitioners, in this regard, failed to overcome the presumption of
negligence arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a piece of
rubber in private respondent Villegas's abdomen and for all the
adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, 3 7 and the State's
compelling interest to enact measures to protect the public from "the
potentially deadly effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease or
trauma."38 Indeed, a physician is bound to serve the interest of his
patients "with the greatest of solicitude, giving them always his best
talent and skill."39 Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her profession's
rigid ethical code and in contravention of the legal standards set forth
for professionals, in general,40 and members of the medical
profession,41 in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of
Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners. SO ORDERED.
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
30 |TORTS AND DAMAGES
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
31 |TORTS AND DAMAGES
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
32 |TORTS AND DAMAGES
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. 146635 December 14, 2005
MARCELO MACALINAO, Substituted by ESPERANZA
MACALINAO and ANTONIO MACALINAO, Petitioners,
vs.
EDDIE MEDECIELO ONG and GENOVEVO
SEBASTIAN, Respondents.
Tinga, J.:
Before this Court is a Petition for Review on Certiorari assailing
the Decision1 and Resolution2 of the Court of Appeals dated 31 May
2000 and 7 September 2000, respectively, in CA-G.R. CV No. 52963.
The Court of Appeals reversed the judgment of the trial court and
dismissed the complaint for damages filed by Marcelo Macalinao
(Macalinao) against Eddie Medecielo Ong (Ong) and Genovevo
Sebastian (Sebastian) for insufficiency of evidence.
The antecedent facts follow.
33 |TORTS AND DAMAGES
Macalinao and Ong were employed as utility man and driver,
respectively, at the Genetron International Marketing (Genetron), a
single proprietorship owned and operated by Sebastian. On 25 April
1992, Sebastian instructed Macalinao, Ong and two truck helpers to
deliver a heavy piece of machinery–a reactor/motor for mixing
chemicals, to Sebastian’s manufacturing plant in Angat, Bulacan.
While in the process of complying with the order, the vehicle driven by
Ong, Genetron’s Isuzu Elf truck with plate no. PMP-106 hit and
bumped the front portion of a private jeepney with plate no. DAF-922
along Caypombo, Sta. Maria, Bulacan at around 11:20 in the morning.3
Both vehicles incurred severe damages while the passengers
sustained physical injuries as a consequence of the
collision.4 Macalinao incurred the most serious injuries
among the passengers of the truck. He was initially brought to the Sta.
Maria District Hospital for first aid treatment but in view of the severity
of his condition, he was transferred to the Philippine Orthopedic Center
at the instance of Sebastian. He was again moved to the Capitol
Medical Center by his parents, petitioners herein, for medical reasons
and later to the Philippine General Hospital for financial
considerations.5
Macalinao’s body was paralyzed and immobilized from the neck down
as a result of the accident and per doctor’s advice, his foot was
amputated. He also suffered from bed sores and infection. His
immedicable condition, coupled with the doctor’s recommendation, led
his family to bring him home where he died on 7 November 1992. 6
Before he died, Macalinao was able to file an action for damages
against both Ong and Sebastian before the Regional Trial Court (RTC)
of Quezon City, Branch 81.7 After his death, Macalinao was substituted
by his parents in the action.8 A criminal case for reckless imprudence
resulting to serious physical injuries9 had also been instituted earlier
against Ong but for reasons which do not appear in the records of this
case, trial thereon did not ensue.10
After trial in the civil action, the RTC held that based on the evidence,
Ong drove the Isuzu truck in a reckless and imprudent manner thereby
causing the same to hit the private jeepney. It observed that while
respondents claimed that Ong was driving cautiously and prudently at
the time of the mishap, no evidence was presented to substantiate the
claim.11 It declared Ong negligent and at the same time, it held that
Sebastian failed to exercise the diligence of a good father of a family in
the selection and supervision of Ong. Consequently, the trial court
pronounced the two of them jointly liable to pay actual, moral, and
exemplary damages as well as civil indemnity for Macalinao’s death.
The trial court subsequently increased the monetary award12 upon
petitioners’ motion for reconsideration thereof.
On appeal, the appellate court reversed the findings of the trial court. It
held that the evidence presented by petitioners was woefully scant to
support a verdict of negligence against Ong. And since respondents’
liability hinged squarely on proof of Ong’s negligence, neither of them
could be held liable for damages to petitioners.13
Aggrieved at the ruling, petitioners elevated the case to this Court.
They herein contend that contrary to the conclusion reached by the
Court of Appeals, the evidence conclusively establish fault or
negligence on the part of Ong and justify the award of damages in their
favor.
The petition is meritorious.
The issue of negligence is factual and, in quasi-delicts, crucial in the
award of damages.14 In the case at bar, the crux of the controversy is
the sufficiency of the evidence presented to support a finding of
negligence against Ong. Given the contradictory conclusions of the
trial court and the appellate court on this issue, this Court is impelled to
ascertain for itself which court made the correct determination.
While as a rule factual findings of the Court of Appeals are deemed
conclusive in cases brought to us on appeal, we have also consistently
pronounced that we may review its findings of fact in the following
instances, among others:
(i) when the judgment of the Court of Appeals was based on a
misapprehension of facts; (ii) when the factual findings are conflicting;
(iii) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and (iv) where the findings of fact
of the Court of Appeals are contrary to those of the trial court, or are
mere conclusions without citation of specific evidence, or where the
facts set forth by the petitioner are not disputed by the respondent, or
where the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.15
Said exceptions obtain in this case thus, a departure from the
application of the general rule is warranted.
In reversing the trial court and absolving respondents from liability, the
appellate court made the following pronouncement:
The evidence presented is woefully scant. The pictures of the collision
afford no basis for concluding that it was the fault of the defendant
driver, or that he was driving recklessly. The police report contains no
findings as to the road conditions, estimates of the relative speed of
the vehicles, or their exact position at the time of the accident. And
even so, entries in the police blotter should not be given significance or
probative value as they do not constitute conclusive proof of the truth
thereof. Nor were eyewitnesses presented, not even affidavits or
statements to give any indication as to what actually happened. The
police investigator’s findings are sketchy at best, with only the phrase
"Isuzu lost control" as his opinion, with no explanation how he reached
it. Civil cases require evidence of a lesser degree than criminal cases,
but one sentence by one who did not even witness an event, is not
conclusive proof.
...
There was only the fact of the collision before the trial court. The
attendant circumstances were not established, and no fault could be
determined using the evidence, both testimonial and documentary
presented.16
Contrary to the above conclusion of the appellate court, the evidence
on record coupled with the doctrine of res ipsa loquitur sufficiently
establishes Ong’s negligence.
We focus first on the evidence presented before the trial court.
The photographs of the accident which the appellate court cavalierly
brushed aside as insignificant deserve substantial cogitation. In Jose v.
Court of Appeals,17 we upheld the trial court’s reliance on photographs
of the accident as opposed to a party’s obviously biased testimony. In
so doing, we stated:
In criminal cases such as murder or rape where the accused stands to
lose his liberty if found guilty, this Court has, in many occasions, relied
principally upon physical evidence in ascertaining the truth. In People
v. Vasquez,18 where the physical evidence on record ran counter to the
testimonial evidence of the prosecution witnesses, we ruled that the
physical evidence should prevail.19
Physical evidence is a mute but an eloquent manifestation of truth
which ranks high in our hierarchy of trustworthy evidence.20
In this case, while there is a dearth of testimonial evidence to enlighten
us about what actually happened, photographs21 depicting the relative
positions of the vehicles immediately after the accident took place do
exist. It is well established that photographs, when duly verified and
shown by extrinsic evidence to be faithful representations of the
subject as of the time in question, are, in the discretion of the trial
court, admissible in evidence as aids in arriving at an understanding of
the evidence, the situation or condition of objects or premises or the
circumstances of an accident.22
According to American courts, photographs are admissible in evidence
in motor vehicle accident cases when they appear to have been
accurately taken and are proved to be a faithful and clear
representation of the subject, which cannot itself be produced, and are
of such nature as to throw light upon a disputed point. 23 Before a
photograph may be admitted in evidence, however, its accuracy or
correctness must be proved, and it must be authenticated or
verified24 first. In the case at bar, the photographer testified in open
court and properly identified the pictures as the ones he took at the
scene of the accident.25
An examination of said photographs clearly shows that the road where
the mishap occurred is marked by a line at the center separating the
right from the left lane. Based on the motorist’s right of way rule, the
Isuzu truck which was headed towards Norzagaray, Bulacan26 should
have been occupying the left lane while the private jeepney which was
traversing the road to the town proper of Sta. Maria, Bulacan27 should
have been in the right lane. Exhibits "L" and "L-4" among the
photographs, however, reveal that in the aftermath of the collision, the
Isuzu truck usurped the opposite lane to such an extent that only its
right rear wheel remained in the left lane, a few inches from the
demarcation line. Its two front wheels and left rear wheel were planted
squarely on the private jeepney’s lane and the Isuzu truck had rotated
such that its front no longer pointed towards Norzagaray but partially
faced the town proper of Sta. Maria instead.
While ending up at the opposite lane is not conclusive proof of fault in
automobile collisions, the position of the two vehicles gives rise to the
conclusion that it was the Isuzu truck which hit the private jeepney
rather than the other way around. The smashed front of the Isuzu truck
is pressed against the private jeepney’s left front portion near the
driver’s side. The private jeepney is positioned diagonally in the right
lane; its front at the rightmost corner of the road while its rear remained
a few feet from the demarcation line. Based on the angle at which it
stopped, the private jeepney obviously swerved to the right in an
unsuccessful effort to avoid the Isuzu truck. This would support the
statement of the police investigator that the Isuzu truck lost
control28 and hit the left front portion of the private jeepney.29 It would
also explain why the driver of the private jeepney died immediately
after being brought to the hospital,30 since in such a scenario, the brunt
of the collision logically bore down on him.
Moreover, the unequal size and weight of the two vehicles would make
it improbable for the relatively lighter private jeepney to have stricken
the heavier truck with such force as to push the latter to the former’s
side of the road. Had that been the case, the two vehicles would have
ended up crushed together at the center of the road or at the Isuzu
truck’s lane instead of rolling to a stop at the private jeepney’s lane.
Another piece of evidence which supports a finding of negligence
against Ong is the police report of the incident denoted as Entry No.
04-229 of the Sta. Maria Police Station. The report states that the
Isuzu truck was the one which hit the left front portion of the private
jeepney.31 This piece of evidence was disregarded by the Court of
Appeals on the ground that entries in police blotters should not be
given significance or probative value as they do not constitute
conclusive proof of the truth thereof.
While true in most instances, it must still be remembered that although
police blotters are of little probative value, they are nevertheless
34 |TORTS AND DAMAGES
admitted and considered in the absence of competent evidence to
refute the facts stated therein.32 Entries in police records made by a
police officer in the performance of the duty especially enjoined by law
are prima facie evidence of the fact therein stated,33 and their probative
value may be either substantiated or nullified by other competent
evidence.34
In this case, the police blotter was identified and formally offered as
evidence and the person who made the entries thereon was likewise
presented in court. On the other hand, aside from a blanket allegation
that the driver of the other vehicle was the one at fault, respondents did
not present any evidence to back up their charge and show that the
conclusion of the police investigator was false. Given the paucity of
details in the report, the investigator’s observation could have been
easily refuted and overturned by respondents through the simple
expedient of supplying the missing facts and showing to the
satisfaction of the court that the Isuzu truck was blameless in the
incident. Ong was driving the truck while the two other truck helpers
also survived the accident. Any or all of them could have given their
testimony to shed light on what actually transpired, yet not one of them
was presented to substantiate the claim that Ong was not negligent.
Since respondents failed to refute the contents of the police blotter, the
statement therein that the Isuzu truck hit the private jeepney and not
the other way around is deemed established. The prima facie nature of
the police report ensures that if it remains unexplained or
uncontradicted, it will be sufficient to establish the facts posited
therein.35
While not constituting direct proof of Ong’s negligence, the foregoing
pieces of evidence justify the application of res ipsa loquitur, a Latin
phrase which literally means "the thing or the transaction speaks for
itself."36
Res ipsa loquitur recognizes that parties may establish prima
facie negligence without direct proof, thus, it allows the principle to
substitute for specific proof of negligence. 37 It permits the plaintiff to
present along with proof of the accident, enough of the attending
circumstances to invoke the doctrine, create an inference or
presumption of negligence and thereby place on the defendant the
burden of proving that there was no negligence on his part. 38
The doctrine can be invoked only when under the circumstances, direct
evidence is absent and not readily available.39 This 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 while the plaintiff has no such
knowledge, and is therefore compelled to allege negligence in general
terms and rely upon the proof of the happening of the accident in order
to establish negligence.40 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.41
In this case, Macalinao could no longer testify as to the cause of the
accident since he is dead. Petitioners, while substituting their son as
plaintiff, have no actual knowledge
about the event since they were not present at the crucial moment. The
driver of the private jeepney who could have shed light on the
circumstances is likewise dead. The only ones left with knowledge
about the cause of the mishap are the two truck helpers who survived,
both employees of Sebastian, and Ong, who is not only Sebastian’s
previous employee but his co-respondent in this case as well. In the
circumstances, evidence as to the true cause of the accident is, for all
intents and purposes, accessible to respondents but not to petitioners.
The witnesses left are unlikely to divulge to petitioners what they knew
about the cause of the accident if the same militates against the
interest of their employer. This justifies the invocation of the doctrine.
Under local jurisprudence, the following are the requisites for the
application of res ipsa loquitur:
(1) The accident is of a kind which ordinarily does not occur in the
absence of someone’s 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.42
We are convinced that all the above requisites are present in the case
at bar.
No two motor vehicles traversing opposite lanes will collide as a matter
of course unless someone is negligent, thus, the first requisite for the
application of the doctrine is present. Ong was driving the Isuzu truck
which, from the evidence adduced, appears to have precipitated the
collision with the private jeepney. Driving the Isuzu truck gave Ong
exclusive management and control over it, a fact which shows that the
second requisite is also present. No contributory negligence could be
attributed to Macalinao relative to the happening of the accident since
he was merely a passenger in the Isuzu truck. Respondents’ allegation
that Macalinao was guilty of contributory negligence for failing to take
the necessary precautions to ensure his safety while onboard the
truck43 is too specious for belief particularly as respondents did not
even present any evidence to prove such allegation. The last requisite
is, therefore, likewise present.
There exists a fourth requisite under American jurisprudence, that is,
that the defendant fails to offer any explanation tending to show that
the injury was caused by his or her want of due care.44 In this case,
while respondents claimed that Ong drove cautiously and prudently
during the time in question, no evidence was proffered to substantiate
the same. In fact, Ong did not bother to testify to explain his actuations
and to show that he exercised due care when the accident happened,
so even this requisite is fulfilled.
All the requisites for the application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference of Ong’s
negligence arises. In consonance with the effect of the doctrine, the
burden of proving due care at the time in question shifts to
respondents. Unfortunately, as previously discussed, aside from
blanket allegations that Ong exercised prudence and due care while
driving on the day of the accident, respondents proffered no other
proof. As a consequence, the prima facie finding of negligence against
Ong, remaining unexplained and/or uncontradicted, is deemed
established. This in turn warrants a finding that Ong is liable for
damages to petitioners.
Such liability of Ong is solidary with Sebastian pursuant to Art. 2176 in
relation to Art. 2180 of the Civil Code which provide:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence is obliged to pay for the damage done .
...
Art. 2180. The obligation imposed by Art. 2176 is demandable not only
for one’s own acts or omissions but also for those of persons for whom
one is responsible.
...
Employers shall be liable for the damage caused by their employees
and household helpers acting within the scope of their assigned tasks
even though the former are not engaged in any business or industry.
...
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage.
Whenever an employee’s negligence causes damage or injury to
another, there instantly arises a presumption juris tantum that the
employer failed to exercise diligentissimi patris families in the selection
(culpa in eligiendo) or supervision (culpa in vigilando) of its
employees.45 To avoid liability for a quasi-delict committed by his
employee, an employer must overcome the presumption by presenting
convincing proof that he exercised the care and diligence of a good
father of a family in the selection and supervision of his employee.46
In an attempt to exculpate himself from liability, Sebastian claimed that
he exercised due care in selecting Ong as a driver. Before he hired
Ong, he allegedly required him to produce police and NBI clearances
and he took into account the recommendations of Ong’s previous
employer and friends.47 Sebastian also stressed that he instructed Ong
to drive slowly and carefully and to take necessary precautions. 48 He
likewise admonished Ong to be careful after the latter had some minor
accidents in the parking area.49
However, Sebastian’s statements are not sufficient to prove that he
exercised the diligence of a good father of a family in the selection of
Ong. His testimony is self-serving and devoid of corroboration as he
did not bother to support the same with document evidence. Moreover,
Sebastian could not even remember whether the recommendation
from Ong’s previous employer was made verbally or in writing.50
On the other hand, due diligence in supervision requires the
formulation of rules and regulations for the guidance of employees and
the issuance of proper instructions as well as actual implementation
and monitoring of consistent compliance with the rules. 51 Admonitions
to drive carefully without the corresponding guidelines and monitoring
of the employee do not satisfy the due diligence required by law either.
In short, Sebastian’s claims fall short of what is required by law to
overcome the presumption of negligence in the selection and
supervision of his employee. The trial court therefore correctly held him
solidarily liable with Ong to petitioners.
In an obvious ploy to relieve himself from liability should the appellate
court’s decision be reversed, Sebastian averred that Macalinao is not
entitled to damages. He anchored his claim on the novel argument that
the provisions of Art. 2180 apply only when the injured party is a third
person but it has no application to an employee like Macalinao. 52 He
likewise postulated that recovery from the Social Security System,
State Insurance Fund, Employee’s Compensation Commission, and
the Philippine Medical Care Act, the government agencies with which
petitioners filed a claim in view of Macalinao’s injury and subsequent
death, preclude pursuing alternate recourse or recovering from other
sources until the former claims have been rejected.53
Sebastian is grasping at straws. Art. 2180 makes no distinction
whatsoever whether the claimant is an employee or a third person
relative to the employer. Ubi lex non distinguit nec nos distinguere
debemos. Where the law does not distinguish, neither should we.54
Moreover, petitioner’s claim against Sebastian is not based upon the
fact of Macalinao’s previous employment with him but on the solidary
liability of the latter for the negligent act of one of his employees. Such
is not precluded by prior claims with the government agencies
enumerated. One is based on compulsory coverage of government
benefits while the other is based on a cause of action provided by law.
Additionally, respondents postulated that since it was Macalinao who
sustained physical injuries and died, he was the one who suffered
pain, not petitioners so moral damages are not recoverable in this
case.55
The relatives of the victim who incurred physical injuries in a quasi-
delict are not proscribed from recovering moral damages in meritorious
cases. To hold otherwise would give rise to the ridiculous scenario
35 |TORTS AND DAMAGES
where a defendant may be compelled to pay moral damages in a
quasi-delict causing physical injuries but will be relieved from doing so
should those same injuries cause the victim’s death.
In the case of Lambert v. Heirs of Ray Castillon,56 we held that in quasi-
delicts:
. . . . the award of moral damages is aimed at a restoration, within the
limits possible, of the spiritual status quo ante; and therefore, it must
be proportionate to the suffering inflicted. The intensity of the pain
experienced by the relatives of the victim is proportionate to the
intensity of affection for him and bears no relation whatsoever with the
wealth or means of the offender.57 (Emphasis Supplied.)
The trial court awarded moral damages in the amount of ₱30,000.00
but since prevailing jurisprudence has fixed the same at
₱50,000.00,58 there is a need to increase the award to reflect the
recent rulings.
Lastly, respondents claim that exemplary damages is not warranted in
this case. Under the law, exemplary damages may be granted in
quasi-delicts if the defendant acted with gross negligence. 59 Gross
negligence has been defined as negligence characterized by the want
of even slight care, acting or omitting to act in a situation where there is
duty to act, not inadvertently but willfully and intentionally, with a
conscious indifference to consequences insofar as other persons may
be affected.60
Ong’s gross negligence in driving the Isuzu truck precipitated the
accident. This is lucidly portrayed in the photographs on record and it
justifies the award of exemplary damages in petitioners’ favor.
However, the trial court’s award of ₱10,000.00 is insufficient, thus the
Court deems it proper to increase the award to ₱25,000.00 under the
circumstances.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals dated 31 May 2000, as well as its Resolution dated 7
September 2000, are hereby SET ASIDE. The Decision of the
Regional Trial Court of Quezon City, Branch 81 dated 12 April 1996 as
amended by the Order dated 23 May 1996 is hereby REINSTATED
with the modifications that the award for moral damages is increased
to ₱50,000.00 to conform with prevailing jurisprudence anD the award
for exemplary damages is increased to ₱25,000.00. Costs against
respondents.SO ORDERED.
G.R. No. L-52732 August 29, 1988
F.F. CRUZ and CO., INC., petitioner,
vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by
his wife LUZ ALMONTE MABLE and children DOMING,
LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME,
ANTONIO, and BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.
CORTES, J.:
This petition to review the decision of the Court of Appeals puts in
issue the application of the common law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was
situated adjacent to the residence of private respondents. Sometime in
August 1971, private respondent Gregorio Mable first approached Eric
Cruz, petitioner's plant manager, to request that a firewall be
constructed between the shop and private respondents' residence. The
request was repeated several times but they fell on deaf ears. In the
early morning of September 6, 1974, fire broke out in petitioner's shop.
Petitioner's employees, who slept in the shop premises, tried to put out
the fire, but their efforts proved futile. The fire spread to private
respondents' house. Both the shop and the house were razed to the
ground. The cause of the conflagration was never discovered. The
National Bureau of Investigation found specimens from the burned
structures negative for the presence of inflammable substances.
Subsequently, private respondents collected P35,000.00 on the
insurance on their house and the contents thereof.
On January 23, 1975, private respondents filed an action for damages
against petitioner, praying for a judgment in their favor awarding
P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and
costs. The Court of First Instance held for private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of
plaintiffs, and against the defendant:
1. Ordering the defendant to pay to the plaintiffs the amount of
P80,000.00 for damages suffered by said plaintiffs for the loss of their
house, with interest of 6% from the date of the filing of the Complaint
on January 23, 1975, until fully paid;
2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00
for the loss of plaintiffs' furnitures, religious images, silverwares,
chinawares, jewelries, books, kitchen utensils, clothing and other
valuables, with interest of 6% from date of the filing of the Complaint
on January 23, 1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00
as moral damages, P2,000.00 as exemplary damages, and P5,000.00
as and by way of attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision,
pp. 1-2; Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on
November 19, 1979, affirmed the decision of the trial court but reduced
the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed.
The damages to be awarded to plaintiff should be reduced to
P70,000.00 for the house and P50,000.00 for the furniture and other
fixtures with legal interest from the date of the filing of the complaint
until full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was
denied in a resolution dated February 18, 1980. Hence, petitioner filed
the instant petition for review on February 22, 1980. After the comment
and reply were filed, the Court resolved to deny the petition for lack of
merit on June 11, 1980.
However, petitioner filed a motion for reconsideration, which was
granted, and the petition was given due course on September 12,
1980. After the parties filed their memoranda, the case was submitted
for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents
recovered on the insurance on their house, from the award of
damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts of the instant
case.
The pivotal issue in this case is the applicability of the common law
doctrine of res ipsa loquitur, the issue of damages being merely
consequential. In view thereof, the errors assigned by petitioner shall
be discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant
case petitioner objects to, may be stated as follows:
Where the thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and the
accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from want of care. [Africa v. Caltex (Phil.), Inc.,
G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station
while gasoline from a tank truck was being unloaded into an
underground storage tank through a hose and the fire spread to and
burned neighboring houses, this Court, applying the doctrine of res
ipsa loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine,
considering that in the normal course of operations of a furniture
manufacturing shop, combustible material such as wood chips,
sawdust, paint, varnish and fuel and lubricants for machinery may be
found thereon.
It must also be noted that negligence or want of care on the part of
petitioner or its employees was not merely presumed. The Court of
Appeals found that petitioner failed to construct a firewall between its
shop and the residence of private respondents as required by a city
ordinance; that the fire could have been caused by a heated motor or a
lit cigarette; that gasoline and alcohol were used and stored in the
shop; and that workers sometimes smoked inside the shop [CA
Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's
failure to construct a firewall in accordance with city ordinances would
suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the neighboring
houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably
crumble and melt when subjected to intense heat. Defendant's
negligence, therefore, was not only with respect to the cause of the fire
but also with respect to the spread thereof to the neighboring
houses. [Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty
of negligence since it had failed to construct a firewall between its
property and private respondents' residence which sufficiently complies
with the pertinent city ordinances. The failure to comply with an
ordinance providing for safety regulations had been ruled by the Court
as an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June
4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find
petitioner liable for the loss sustained by private respondents.
2. Since the amount of the loss sustained by private respondents
constitutes a finding of fact, such finding by the Court of Appeals
should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v.
Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA
559], more so when there is no showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals were in
agreement as to the value of private respondents' furniture and fixtures
and personal effects lost in the fire (i.e. P50,000.00). With regard to the
house, the Court of Appeals reduced the award to P70,000.00 from
36 |TORTS AND DAMAGES
P80,000.00. Such cannot be categorized as arbitrary considering that
the evidence shows that the house was built in 1951 for P40,000.00
and, according to private respondents, its reconstruction would cost
P246,000.00. Considering the appreciation in value of real estate and
the diminution of the real value of the peso, the valuation of the house
at P70,000.00 at the time it was razed cannot be said to be excessive.
3. While this Court finds that petitioner is liable for damages to private
respondents as found by the Court of Appeals, the fact that private
respondents have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents has
not escaped the attention of the Court. Hence, the Court holds that in
accordance with Article 2207 of the Civil Code the amount of
P35,000.00 should be deducted from the amount awarded as
damages. Said article provides:
Art. 2207. If the plaintiffs property has been insured, and he has
received indemnity from the insurance company for the injury or loss
arising out of the wrong or breach of contract complained of, the
insurance company is subrogated to the rights of the insured against
the wrongdoer or the person who violated the contract. If the amount
paid by the insurance company does not fully cover the injury or loss,
the aggrieved party shall be entitled to recover the deficiency from the
person causing the loss or injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified
by their insurer, private respondents are only entitled to recover the
deficiency from petitioner.
On the other hand, the insurer, if it is so minded, may seek
reimbursement of the amount it indemnified private respondents from
petitioner. This is the essence of its right to be subrogated to the rights
of the insured, as expressly provided in Article 2207. Upon payment of
the loss incurred by the insured, the insurer is entitled to be
subrogated pro tanto to any right of action which the insured may have
against the third person whose negligence or wrongful act caused the
loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-
27427, April 7, 1976, 70 SCRA 323.]
Under Article 2207, the real party in interest with regard to the
indemnity received by the insured is the insurer [Phil. Air Lines, Inc. v.
Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer
should exercise the rights of the insured to which it had been
subrogated lies solely within the former's sound discretion. Since the
insurer is not a party to the case, its identity is not of record and no
claim is made on its behalf, the private respondent's insurer has to
claim his right to reimbursement of the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of
Appeals is hereby AFFIRMED with the following modifications as to the
damages awarded for the loss of private respondents' house,
considering their receipt of P35,000.00 from their insurer: (1) the
damages awarded for the loss of the house is reduced to P35,000.00;
and (2) the right of the insurer to subrogation and thus seek
reimbursement from petitioner for the P35,000.00 it had paid private
respondents is recognized.
SO ORDERED.
G.R. No. 173870 April 25, 2012
OSCAR DEL CARMEN, JR., Petitioner,
vs.
GERONIMO BACOY, Guardian and representing the children,
namely: MARY MARJORIE B. MONSALUD, ERIC B. MONSALUD,
METZIE ANN B. MONSALUD, KAREEN B. MONSALUD,
LEONARDO B. MONSALUD, JR., and CRISTINA B.
MONSALUD, Respondents.
DEL CASTILLO, J.:
In this Petition for Review on Certiorari,1 the registered owner of a
motor vehicle challenges the Decision2 dated July 11, 2006 of the
Court of Appeals (CA) in CA-G.R. CV No. 67764 which held him liable
for damages to the heirs of the victims who were run over by the said
vehicle.
Factual Antecedents
At dawn on New Year’s Day of 1993, Emilia Bacoy Monsalud (Emilia),
along with her spouse Leonardo Monsalud, Sr. and their daughter
Glenda Monsalud, were on their way home from a Christmas party
they attended in Poblacion, Sominot, Zamboanga Del Sur. Upon
reaching Purok Paglaom in Sominot, they were run over by a Fuso
passenger jeep bearing plate number UV-PEK-600 that was being
driven by Allan Maglasang (Allan). The jeep was registered in the
name of petitioner Oscar del Carmen, Jr. (Oscar Jr.) and used as a
public utility vehicle plying the Molave, Zamboanga del Sur to Sominot,
Zamboanga del Sur and vice versa route.
Because of the unfortunate incident, Criminal Case No. 93-103473 for
Reckless Imprudence Resulting in Multiple Homicide was filed against
Allan before the Regional Trial Court of Molave, Zamboanga del Sur,
Branch 23. In a Decision dated March 13, 1997, said court declared
Allan guilty beyond reasonable doubt of the crime charged.4
During the pendency of said criminal case, Emilia’s father, Geronimo
Bacoy (Geronimo), in behalf of the six minor children5 of the
Monsaluds, filed Civil Case No. 96-20219,6 an independent civil action
for damages based on culpa aquiliana. Aside from Allan, also
impleaded therein were his alleged employers, namely, the spouses
Oscar del Carmen, Sr. (Oscar Sr.) and Norma del Carmen (Spouses
del Carmen) and the registered owner of the jeep, their son Oscar Jr.
Geronimo prayed for the reimbursement of funeral and burial
expenses, as well as the award of attorney’s fees, moral and
exemplary damages resulting from the death of the three victims, and
loss of net income earnings of Emilia who was employed as a public
school teacher at the time of her death.7
Defendants refused to assume civil liability for the victims’ deaths.
Oscar Sr. averred that the Monsaluds have no cause of action against
them because he and his wife do not own the jeep and that they were
never the employers of Allan.8 For his part, Oscar Jr. claimed to be a
victim himself. He alleged that Allan and his friends9 stole his jeep while
it was parked beside his driver’s rented house to take it for a joyride.
Both he and a vehicle mechanic testified that the subject jeep can
easily be started by mere pushing sans the ignition key. The vehicle’s
engine shall then run but without any headlights on.10 And implying that
this was the manner by which the vehicle was illegally taken, Oscar Jr.
submitted as part of his documentary evidence the statements 11 of
Jemar Alarcon (Jemar) and Benjamin Andujar (Benjamin). The two,
who were with Allan in the jeep at the time of the accident, declared
before the investigating officer that during said time, the vehicle’s
headlights were off. Because of this allegation, Oscar Jr. even filed
before the same trial court a carnapping case against Allan and his
companions docketed as Criminal Case No. 93-10380.12 The case
was, however, dismissed for insufficiency of evidence.13
Oscar Jr. clarified that Allan was his jeep conductor and that it was the
latter’s brother, Rodrigo Maglasang (Rodrigo), who was employed as
the driver.14 In any event, Allan’s employment as conductor was
already severed before the mishap occurred on January 1, 1993 since
he served as such conductor only from the first week of December until
December 14, 1992.15 In support of this, Oscar Jr. presented as
witnesses Faustino Sismundo (Faustino) and Cresencio "Junior"
Baobao (Cresencio). Faustino, a resident of Molave, testified that when
he boarded the jeep heading to Sominot on December 31, 1992, it was
Cresencio who was the conductor. He also believed that Crecencio
started to work as such at around December 15 or 16,
1992.16 Cresencio, for his part, testified that he worked as Oscar Jr.’s
conductor from December 15, 1992 to January 1, 1993 and that
Rodrigo was his driver.17 He stated that upon learning that the jeep
figured in an accident, he never bothered to verify the news. Instead,
he went to Midsalip to work there as a conductor for his brother’s
vehicle, thereby terminating his employment with Oscar Jr.18
Oscar Jr. likewise testified that it was routinary that after a day’s trip,
the jeep would be parked beside Rodrigo’s rented house19 for the next
early-morning operation.
Geronimo, on the other hand, averred that Allan was still Oscar Jr.’s
employee subsequent to December 14, 1992. To prove this, he
presented as witnesses Saturnino Jumawan (Saturnino) and Jose
Navarro (Jose). Saturnino testified that he would pay his fare to Allan
every time he would board the jeep in going to Molave and that the last
time he rode the subject vehicle was on December 23, 1992. He also
claimed that immediately before January 1, 1993, Rodrigo and Allan
used to park the jeep at the yard of his house. 20 Jose likewise attested
that Allan was still the jeep conductor during the said period as he had
ridden the jeep many times in mid-December of 1992.21
Ruling of the Regional Trial Court
In its Decision22 dated April 17, 2000, the RTC exculpated the spouses
del Carmen from civil liability for insufficiency of evidence. However,
their son Oscar Jr. was held civilly liable in a subsidiary capacity. The
RTC anchored its ruling primarily on the principle of res ipsa loquitur,
i.e., that a presumption of negligence on the part of a defendant may
be inferred if the thing that caused an injury is shown to be under his
management and that in the ordinary course of things, the accident
would not have happened had there been an exercise of care. Said
court ratiocinated that Oscar Jr., as the registered owner of the jeep,
managed and controlled the same through his driver Rodrigo, in whose
house the jeep was usually parked. Since both Oscar Jr. and Rodrigo
were well aware that the jeep could easily be started by a mere push
even without the ignition key, they should have taken the necessary
precaution to prevent the vehicle from being used by unauthorized
persons like Allan. The RTC thus concluded that such lack of proper
precaution, due care and foresight constitute negligence making the
registered owner of the vehicle civilly liable for the damage caused by
the same.
The RTC disposed of the case as follows:
Wherefore, judgment is hereby entered in favor of the plaintiffs and
against the defendants Allan Maglasang and Oscar del Carmen, Jr.
ordering –
1. Defendant ALLAN MAGLASANG to pay the plaintiffs, and in case of
insolvency, for defendant OSCAR DEL CARMEN, JR., to pay the
plaintiffs, the following sums:
a. ₱73,112.00 for their funeral and burial expenses;
b. ₱1,000,000.00 moral damages for the death of the late Emilia
Monsalud;
c. ₱250,000.00 moral damages for the death of the late Leonardo
Monsalud, Sr.;
d. ₱250,000.00 moral damages for the death of the late Glenda
Monsalud;
37 |TORTS AND DAMAGES
e. ₱40, 000.00, for exemplary damages;
f. ₱20,000.00 attorney’s fees; and
g. The cost of this proceedings.
2. The dismissal of the complaint as against the spouses OSCAR DEL
CARMEN SR. and NORMA DEL CARMEN. SO ORDERED.23
Oscar Jr. moved for reconsideration24 contending that the provision on
vicarious liability of the employer under Article 2180 of the Civil
Code25 requires the existence of employer-employee relationship and
that the employee was acting within the scope of his employment when
the tort occurred. He stressed that even assuming that Allan was his
employee, he was hired not as a driver but as a conductor. Hence,
Allan acted beyond the scope of his employment when he drove the
jeep.
Oscar Jr. also stressed that the fact that the jeep was running without
its headlights on at the time of the accident indubitably shows that the
same was stolen. He further alleged that the jeep could not have been
taken by only one person. As Rodrigo declared in Criminal Case No.
93-10380 (carnapping case), based on his experience, the jeep cannot
be pushed by only one person but by at least five people in order for it
to start. This was due to the vehicle’s mass and the deep canal which
separates the parking area from the curved road that was obstructed
by a house.26
Setting aside its earlier decision, the lower court in its Order27 dated
June 21, 2000 granted the Motion for Reconsideration and absolved
Oscar Jr. from civil liability. It cited Article 103 of the Revised Penal
Code which provides that for an employer to be subsidiarily liable for
the criminal acts of his employee, the latter should have committed the
same in the discharge of his duties. The court agreed with Oscar Jr.
that this condition is wanting in Allan’s case as he was not acting in the
discharge of his duties as a conductor when he drove the jeep.
The court also declared the doctrine of res ipsa loquitur inapplicable
since the property owner cannot be made responsible for the damages
caused by his property by reason of the criminal acts of another. It then
adjudged that only Allan should bear the consequences of his criminal
acts. Thus:
WHEREFORE, premises considered, the MOTION FOR
RECONSIDERATION is granted, and defendant OSCAR DEL
CARMEN JR. is hereby absolved from all civil liability arising from the
felonious acts of convicted accused ALLAN MAGLASANG.
IT IS SO ORDERED.28
Geronimo appealed.
Ruling of the Court of Appeals
In its July 11, 2006 Decision,29 the CA granted the appeal.
In resolving the case, the CA first determined the preliminary issue of
whether there was an employer-employee relationship between Oscar
Jr. and Allan at the time of the accident. It ruled in the affirmative and
gave more credence to the testimonies of Geronimo’s witnesses than
to those of Oscar Jr.’s witnesses, Faustino and Cresencio. The CA
ratiocinated that unlike the witness presented by Geronimo, Faustino
never resided in Poblacion and thus has limited knowledge of the
place. His testimony was also unreliable considering that he only rode
the subject jeep twice30 during the last two weeks of December 1992.
As regards Cresencio’s testimony, the appellate court found it puzzling
why he appeared to have acted uninterested upon learning that the
jeep was the subject of an accident when it was his bread and butter.
Said court likewise considered questionable Oscar Jr.’s asseveration
that Cresencio replaced Allan as conductor when Cresencio testified
that he replaced a certain Sumagang Jr.31
With regard to the main issue, the CA adjudged Oscar Jr. liable to the
heirs of the victims based on the principle that the registered owner of
a vehicle is directly and primarily responsible for the injuries or death of
third parties caused by the operation of such vehicle. It disbelieved
Oscar Jr.’s defense that the jeep was stolen not only because the
carnapping case filed against Allan and his companions was dismissed
but also because, given the circumstances, Oscar Jr. is deemed to
have given Allan the implied permission to use the subject vehicle. To
support its conclusion, the CA cited the following circumstances:
siblings Rodrigo and Allan were both employees assigned to the said
jeep; after a day’s work, said vehicle would be parked just beside
Rodrigo’s house where Allan also lived; the jeep could easily be
started even without the use of an ignition key; the said parking area
was not fenced or secured to prevent the unauthorized use of the
vehicle which can be started even without the ignition key.
The dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, the instant appeal is GRANTED.
The assailed Order dated 21 June 2000 of the Regional Trial Court
(Branch 23), Molave, Zamboanga del Sur, in Civil Case No. 96-20,219
is SET ASIDE and a new one is hereby entered. OSCAR DEL
CARMEN, Jr. and ALLAN MAGLASANG are held primarily liable,
jointly and severally, to pay plaintiffs-appellants:
1. Civil indemnity for the death of Emilia Bacoy Monsalud, Leonardo
Monsalud Sr., and Glenda Monsalud in the amount of Fifty thousand
pesos (₱50,000.00) each or for the total amount of One hundred fifty
thousand pesos (₱150,000.00);
2. Temperate damages in the amount of Twenty-five Thousand Pesos
(₱25,000.00) each for the death of Emilia Monsalud, Leonardo
Monsalud Sr., and Glenda Monsalud (collectively the Monsaluds) or for
the total amount of Seventy-five thousand pesos (₱75,000.00);
3. Moral damages in the amount of Fifty Thousand Pesos (₱50,000.00)
each for the death of the Monsaluds or for a total amount of One
Hundred Fifty Thousand Pesos (₱150,000.00);
4. Exemplary damages of Forty Thousand Pesos (₱40,000.00).
No pronouncement as to costs. SO ORDERED. 32
Issues
As a result of the adverse judgment, Oscar Jr. filed this Petition for
Review on Certiorari alleging that the CA erred in:
1. x x x basing its conclusions and findings on speculations, surmises
and conjectures; misapprehension of facts which are in conflict with the
findings of the trial court;
2. x x x declaring a question of substance not in accord with law and
with the applicable decisions of the Supreme Court;
3. x x x departing from the regular course of the judicial proceedings in
the disposition of the appeal and [in going] beyond the issues of the
case.33
Oscar Jr. points out that the CA failed to consider the RTC’s ruling in
its June 21, 2000 Order which was in accord with Article 2180 of the
Civil Code, i.e., that the tort committed by an employee should have
been done ‘within the scope of his assigned tasks’ for an employer to
be held liable under culpa aquiliana. However, the CA never touched
upon this matter even if it was glaring that Allan’s driving the subject
vehicle was not within the scope of his previous employment as
conductor. Moreover, Oscar Jr. insists that his jeep was stolen and
stresses that the liability of a registered owner of a vehicle as to third
persons, as well as the doctrine of res ipsa loquitur, should not apply to
him. He asserts that although Allan and his companions were not
found to have committed the crime of carnapping beyond reasonable
doubt, it was nevertheless established that the jeep was illicitly taken
by them from a well secured area. This is considering that the vehicle
was running without its headlights on at the time of the accident, a
proof that it was started without the ignition key.
Our Ruling
Petitioner’s own evidence casts doubt on his claim that his jeep was
stolen by Allan and his alleged cohorts. Negligence is presumed under
the doctrine of res ipsa loquitur.
Oscar Jr.’s core defense to release him from responsibility for the
death of the Monsaluds is that his jeep was stolen. He highlights that
the unauthorized taking of the jeep from the parking area was indeed
carried out by the clandestine and concerted efforts of Allan and his
five companions, notwithstanding the obstacles surrounding the
parking area and the weight of the jeep.
Notably, the carnapping case filed against Allan and his group was
already dismissed by the RTC for insufficiency of evidence. But even in
this civil case and as correctly concluded by the CA, the evidentiary
standard of preponderance of evidence required was likewise not met
to support Oscar Jr.’s claim that his jeep was unlawfully taken.
Two of Allan’s co-accused in the carnapping case, Jemar and
Benjamin, declared before the police that when Allan invited them to
ride with him, he was already driving the jeep:
04. Q- On that night, on or about 11:30 o’clock on December 31, 1992,
where were you?
A- I went to the disco near [the] Public Market[,] Sominot, Zamboanga
del Sur.
05. Q- While you were in disco place, do you know if there was an
incident [that] happened?
A- No sir but when I was in the disco place, at about 3:30 at dawn
more or less[,] January 1, 1993, Allan Maglasang arrived driving the
jeep and he invited me to ride together with Benjamin Andujar,
Dioscoro Sol, Arniel Rezada and Joven Orot.34
xxxx
04. Q- On that night, on or about 9:00 o’clock in the evening more or
less on December 31, 1992, where were you?
A- I went to the disco at [the] Public Market[,] Sominot, Zamboanga del
Sur.
05. Q- While you were in the disco place, do you know if there was an
incident [that] happened?
A- No, sir, but when I was in the disco place, at about 3:30 at dawn
more or less[,] January 1, 1993, Allan Maglasang arrive[d] driving the
jeep and he invited me to ride together with Jemar Alarcon, Dioscoro
Sol, Arniel Rizada and Joven Orot.35
There were six accused in the carnapping case. If Jemar and Benjamin
were fetched by Allan who was driving the jeep, this would mean that
only three men pushed the jeep contrary to Rodrigo’s testimony in
Criminal Case No. 93-10380 that it has to be pushed by at least five
people so that it could start without the ignition key.
On direct examination,36 Oscar Jr. was asked as to what Rodrigo, his
driver who had informed him about the accident on January 1, 1993 at
around 7:00 a.m., turned over to him after the incident, viz:
Q: When Rodrigo Maglasang, your driver informed you about the
accident, what did he carry with him if any and turned over to you?
A: The OR (Official Receipt) and the CR (Certificate of Registration)
Sir.
Q: How about the key of the vehicle?
A: It was not turned over, Sir.37
Assuming arguendo that Allan stole the jeep by having the same
pushed by a group, the ignition key should then be with Rodrigo as he
was entrusted with the jeep’s possession. Thus, at the time Rodrigo
faced his employer hours after the incident, it is reasonable to expect
38 |TORTS AND DAMAGES
that the driver should have also returned the key to the operator
together with the Official Receipt and Certificate of Registration.
Notably, Rodrigo did not do so and instead, the key was allegedly
handed over to the police for reasons unexplained and not available
from the records. Interestingly, Oscar Jr. never presented Rodrigo as
his witness. Neither was he able to attest on cross-examination that
Allan really stole the jeep by pushing or that the key was handed over
to him by Rodrigo:
Q: On December 31, 1992, you did not know that it was Rodrigo
Maglasang who gave the key to Allan Maglasang. Is that correct?
A: I was not there. So, I do not know but he had an affidavit to show
that he turned it over to the police.
Q: What I was asking you is that, [o]n the night of December 31, 1992,
when it was driven by Allan Maglasang, you did not know that the key
was voluntarily given by Rodrigo Maglasang to Allan Maglasang?
A: I was not there.
Q: So, you could not testify on that, is that correct?
A: Yes Sir, I was not there.38
Furthermore, Oscar Jr. acknowledged the dismissal of the carnapping
case, thus:
Q: Now, there was a case filed against Allan Maglasang and [his] x x x
co-accused x x x [n]amely: Benjamin Andojar, Dioscoro Sol, Joven
Orot, [Jemar Azarcon] and [Arniel] Rizada, for carnapping. Is that
correct?
A: Yes Sir.
Q: That case was filed by you because you alleged that on December
31, 1992, your jeep was carnapped by Allan Maglasang and his co-
accused, the said mentioned, is that correct?
A: Yes Sir.
Q: You testified on the case in Aurora, is that correct?
A: Yes, Sir.
Q: And you could well remember that this representation is the counsel
of the co-accused of Allan Maglasang, is that correct?
A: Yes Sir.
Q: And that case for carnapping was dismissed, is that correct?
A: Yes Sir.
Q: Even the case of Allan Maglasang, was also dismissed, is that
correct
A: Yes Sir.
Q: Because there was no sufficient evidence to establish that the jeep
was carnapped, is that correct?
A: Yes Sir.39
While Oscar Jr. highlights that the headlights were not on to support
his claim that his jeep was stolen, this circumstance by itself will not
prove that it really was stolen. The reason why the headlights were not
on at the time of the accident was not sufficiently established during
the trial. Besides, the fact that the headlights were not on cannot be
exclusively attributed to the lack of ignition key in starting the jeep as
there may be other possibilities such as electrical problems, broken
headlights, or that they were simply turned off.
Hence, sans the testimony of witnesses and other relevant evidence to
support the defense of unauthorized taking, we cannot subscribe to
Oscar Jr.’s claim that his jeep was stolen. The evidence on record
brings forth more questions than clear-cut answers.
Oscar Jr. alleges that the presumption of negligence under the doctrine
of res ipsa loquitur (literally, the thing speaks for itself) should not have
been applied because he was vigilant in securing his vehicle. He
claims that the jeep was parked in a well secured area not remote to
the watchful senses of its driver Rodrigo.
Under the doctrine of res ipsa loquitur, "[w]here the thing that caused
the injury complained of is shown to be under the management of the
defendant or his servants; and the accident, in the ordinary course of
things, would not happen if those who had management or control
used proper care, it affords reasonable evidence – in the absence of a
sufficient, reasonable and logical explanation by defendant – that the
accident arose from or was caused by the defendant’s want of
care."40 Res ipsa loquitur is "merely evidentiary, a mode of proof, or a
mere procedural convenience, since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing a specific proof of
negligence."41 It "recognizes that parties may establish prima facie
negligence without direct proof, thus, it allows the principle to substitute
for specific proof of negligence. It permits the plaintiff to present along
with proof of the accident, enough of the attending circumstances to
invoke the doctrine, create an inference or presumption of negligence
and thereby place on the defendant the burden of proving that there
was no negligence on his part."42 The doctrine is based partly on "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 while the plaintiff has no such knowledge,
and is therefore compelled to allege negligence in general terms." 43
The requisites of the doctrine of res ipsa loquitur as established by
jurisprudence are as follows:
1) the accident is of a kind which does not ordinarily occur unless
someone is negligent;
2) the cause of the injury was under the exclusive control of the person
in charge and
3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured.44
The above requisites are all present in this case. First, no person just
walking along the road would suddenly be sideswiped and run over by
an on-rushing vehicle unless the one in charge of the said vehicle had
been negligent. Second, the jeep which caused the injury was under
the exclusive control of Oscar Jr. as its owner. When Oscar Jr.
entrusted the ignition key to Rodrigo, he had the power to instruct him
with regard to the specific restrictions of the jeep’s use, including who
or who may not drive it. As he is aware that the jeep may run without
the ignition key, he also has the responsibility to park it safely and
securely and to instruct his driver Rodrigo to observe the same
precaution. Lastly, there was no showing that the death of the victims
was due to any voluntary action or contribution on their part.
The aforementioned requisites having been met, there now arises a
presumption of negligence against Oscar Jr. which he could have
overcome by evidence that he exercised due care and diligence in
preventing strangers from using his jeep. Unfortunately, he failed to do
so.
What this Court instead finds worthy of credence is the CA’s
conclusion that Oscar Jr. gave his implied permission for Allan to use
the jeep. This is in view of Oscar Jr.’s failure to provide solid proof that
he ensured that the parking area is well secured and that he had
expressly imposed restrictions as to the use of the jeep when he
entrusted the same to his driver Rodrigo. As fittingly inferred by the
CA, the jeep could have been endorsed to Allan by his brother Rodrigo
since as already mentioned, Oscar Jr. did not give Rodrigo any specific
and strict instructions on matters regarding its use. Rodrigo therefore is
deemed to have been given the absolute discretion as to the vehicle’s
operation, including the discretion to allow his brother Allan to use it.
The operator on record of a vehicle is primarily responsible to third
persons for the deaths or injuries consequent to its operation,
regardless of whether the employee drove the registered owner’s
vehicle in connection with his employment.
Without disputing the factual finding of the CA that Allan was still his
employee at the time of the accident, a finding which we see no reason
to disturb, Oscar Jr. contends that Allan drove the jeep in his private
capacity and thus, an employer’s vicarious liability for the employee’s
fault under Article 2180 of the Civil Code cannot apply to him.
The contention is no longer novel. In Aguilar Sr. v. Commercial
Savings Bank,45 the car of therein respondent bank caused the death
of Conrado Aguilar, Jr. while being driven by its assistant vice
president. Despite Article 2180, we still held the bank liable for
damages for the accident as said provision should defer to the settled
doctrine concerning accidents involving registered motor vehicles, i.e.,
that the registered owner of any vehicle, even if not used for public
service, would primarily be responsible to the public or to third persons
for injuries caused the latter while the vehicle was being driven on the
highways or streets.46 We have already ratiocinated that:
The main aim of motor vehicle registration is to identify the owner so
that if any accident happens, or that any damage or injury is caused by
the vehicle on the public highways, responsibility therefor can be fixed
on a definite individual, the registered owner. Instances are numerous
where vehicles running on public highways caused accidents or
injuries to pedestrians or other vehicles without positive identification of
the owner or drivers, or with very scant means of identification. It is to
forestall these circumstances, so inconvenient or prejudicial to the
public, that the motor vehicle registration is primarily ordained, in the
interest of the determination of persons responsible for damages or
injuries caused on public highways.47
Absent the circumstance of unauthorized use48 or that the subject
vehicle was stolen49 which are valid defenses available to a registered
owner, Oscar Jr. cannot escape liability for quasi-delict resulting from
his jeep’s use.1âwphi1
All told and considering that the amounts of damages awarded are in
accordance with prevailing jurisprudence, the Court concurs with the
findings of the CA and sustains the awards made. In addition, pursuant
to Eastern Shipping Lines, Inc. v. Court of Appeals, 50 an interest of six
percent (6%) per annum on the amounts awarded shall be imposed,
computed from the time the judgment of the RTC is rendered on April
17, 2000 and twelve percent (12%) per annum on such amount upon
finality of this Decision until the payment thereof.
WHEREFORE, premises considered, the instant petition is DENIED.
The Decision dated July 11, 2006 of the Court of Appeals in CA-G.R.
CV No. 67764 is hereby AFFIRMED with further MODIFICATION that
an interest of six percent (6%) per annum on the amounts awarded
shall be imposed, computed from the time the judgment of the
Regional Trial Court, Branch 23, Molave, Zamboanga del Sur is
rendered on April 17, 2000 and twelve percent (12%) per annum on
such amount upon finality of this Decision until the payment thereof.
SO ORDERED.
G.R. No. L-5691 December 27, 1910
S. D. MARTINEZ and his wife, CARMEN ONG DE
MARTINEZ, plaintiffs-appellees,
vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.
MORELAND, J.:
The facts found by the trial court are undisputed by either party in this
case. They are —
39 |TORTS AND DAMAGES
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de
Martinez, was riding in a carromata on Calle Real, district of Ermita,
city of Manila, P.I., along the left-hand side of the street as she was
going, when a delivery wagon belonging to the defendant used for the
purpose of transportation of fodder by the defendant, and to which was
attached a pair of horses, came along the street in the opposite
direction to that the in which said plaintiff was proceeding, and that
thereupon the driver of the said plaintiff's carromata, observing that the
delivery wagon of the defendant was coming at great speed, crowded
close to the sidewalk on the left-hand side of the street and stopped, in
order to give defendant's delivery wagon an opportunity to pass by, but
that instead of passing by the defendant's wagon and horses ran into
the carromata occupied by said plaintiff with her child and overturned
it, severely wounding said plaintiff by making a serious cut upon her
head, and also injuring the carromata itself and the harness upon the
horse which was drawing it.
xxx xxx xxx
These facts are not dispute, but the defendant presented evidence to
the effect that the cochero, who was driving his delivery wagon at the
time the accident occurred, was a good servant and was considered a
safe and reliable cochero; that the delivery wagon had sent to deliver
some forage at Paco Livery Stable on Calle Herran, and that for the
purpose of delivery thereof the cochero driving the team as defendant's
employee tied the driving lines of the horses to the front end of the
delivery wagon and then went back inside of the wagon for the
purpose of unloading the forage to be delivered; that while unloading
the forage and in the act of carrying some of it out, another vehicle
drove by, the driver of which cracked a whip and made some other
noises, which frightened the horses attached to the delivery wagon and
they ran away, and the driver was thrown from the inside of the wagon
out through the rear upon the ground and was unable to stop the
horses; that the horses then ran up and on which street they came into
collision with the carromata in which the plaintiff, Carmen Ong de
Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of
negligence and gave judgment against him for P442.50, with interest
thereon at the rate of 6 per cent per annum from the 17th day of
October, 1908, and for the costs of the action. The case is before us
on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except
that embodied in the Civil Code. The provisions of that code pertinent
to this case are —
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 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.
Guardians are liable for the damages caused by minors or
incapacitated persons who are under their authority and live with them.
Owners of directors of an establishment or enterprise are equally liable
for the damages caused by the employees in the service of the
branches in which the latter may be employed or on account of their
duties.
The State is liable in this sense when it acts through a special agent,
but not when the damages should have been caused by the official to
whom properly it pertained to do the act performed, in which case the
provisions of the preceding article shall be applicable.
Finally, masters or directors of arts and trades are liable for the
damages caused by their pupils or apprentices while they are under
their custody.
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.
Passing the question whether or not an employer who has furnished a
gentle and tractable team and a trusty and capable driver is, under the
last paragraph of the above provisions, liable for the negligence of
such driver in handling the team, we are of the opinion that the
judgment must be reversed upon the ground that the evidence does
not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be
some what different from that in Anglo-Saxon countries, a question we
do not now discuss, the rules under which the fact of negligence is
determined are, nevertheless, generally the same. That is to say, while
the law designating the person responsible for a negligent act may not
be the same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speaking, as
elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May,
1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7
February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June,
1901.)
It appears from the undisputed evidence that the horses which caused
the damage were gentle and tractable; that the cochero was
experienced and capable; that he had driven one of the horses several
years and the other five or six months; that he had been in the habit,
during all that time, of leaving them in the condition in which they were
left on the day of the accident; that they had never run away up to that
time and there had been, therefore, no accident due to such practice;
that to leave the horses and assist in unloading the merchandise in the
manner described on the day of the accident was the custom of all
cochero who delivered merchandise of the character of that which was
being delivered by the cochero of the defendant on the day in question,
which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in
leaving the horses in the manner described by the evidence in this
case, either under Spanish or American jurisprudence.
(Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement
Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N.
Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170),
Lord Kenyon said:
He was performing his duty while removing the goods into the house,
and, if every person who suffered a cart to remain in the street while he
took goods out of it was obliged to employ another to look after the
horses, it would be impossible for the business of the metropolis to go
on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his
horse, at the time of the injury, is that which would be exercised by a
person of ordinary care and prudence under like circumstances. It can
not be said that the fact of leaving the horse unhitched is in itself
negligence. Whether it is negligence to leave a horse unhitched must
be depend upon the disposition of the horse; whether he was under
the observation and control of some person all the time, and many
other circumstances; and is a question to be determined by the jury
from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it
was error on the part of the trial court to refuse to charge that "it is not
negligence for the driver of a quite, gentle horse to leave him unhitched
and otherwise unattended on the side of a public highways while the
driver is upon the sidewalk loading goods on the wagon." The said
court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding
that the horse was quite and gentle, and that the driver was upon the
sidewalk loading goods on the wagon, at time of the alleged injury, and
that the horse had been used for years in that way without accident.
The refusal of the trial court to charge as requested left the jury free to
find was verdict against the defendant, although the jury was
convinced that these facts were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods,
upon stopping with his horse and wagon to deliver a parcel at a house
from fifty to a hundred rods from a railroad crossing, left the horse
unfastened for four or five minutes while he was in the house, knowing
that it was not afraid of cars, and having used it for three or four
months without ever hitching it or knowing it to start, is not conclusive,
as a matter of law, of a want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect
in question, is to exercise reasonable care and prudence. Where
reasonable care is employed in doing an act not itself illegal or
inherently likely to produce damage to others, there will be no liability,
although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U.
S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing,
292; Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34
Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry,
117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner
proved was not unreasonable or imprudent. Acts the performance of
which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they
have ripened into custom, can not be held to be themselves
unreasonable or imprudent. Indeed the very reason why they have
been permitted by society is that they beneficial rather than prejudicial.
Accidents sometimes happen and injuries result from the most ordinary
acts of life. But such are not their natural or customary results. To hold
that, because such an act once resulted in accident or injury, the actor
is necessarily negligent, is to go far. The fact that the doctrine of res
ipsa loquitur is sometimes successfully invoked in such a case, does
not in any sense militate against the reasoning presented. That maxim
at most only creates a prima facie case, and that only in the absence
of proof of the circumstances under which the act complained of was
performed. It is something invoked in favor of the plaintiff before
defendant's case showing the conditions and circumstances under
which the injury occurred, the creative reason for the doctrine of res
ipsa loquitur disappears. This is demonstrated by the case of Inland
and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court
said (p. 554):
. . . The whole effect of the instruction in question, as applied to the
case before the jury, was that if the steamboat, on a calm day and in
smooth water, was thrown with such force against a wharf properly
built, as to tear up some of the planks of the flooring, this would
be prima facie evidence of negligence on the part of the defendant's
agent in making the landing, unless upon the whole evidence in the
case this prima facie evidence was rebutted. As such damage to a
wharf is not ordinarily done by a steamboat under control of her
40 |TORTS AND DAMAGES
officers and carefully managed by them, evidence that such damage
was done in this case was prima facie, and, if unexplained, sufficient
evidence of negligence on their part, and the jury might properly be so
instructed.
There was presented in this case, and by the plaintiffs themselves, not
only the fact of the runway and the accident resulting therefrom, but
also the conditions under which the runaway occurred. Those
conditions showing of themselves that the defendant's cochero was not
negligent in the management of the horse, the prima facie case in
plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the
universal practice of merchants to deliver merchandise of the kind of
that being delivered at the time of the injury, in the manner in which
that was then being delivered; and that it is the universal practice to
leave the horses in the manner in which they were left at the time of
the accident. This is the custom in all cities. It has not been productive
of accidents or injuries. The public, finding itself unprejudiced by such
practice, has acquiesced for years without objection. Ought the public
now, through the courts, without prior objection or notice, to be
permitted to reverse the practice of decades and thereby make
culpable and guilty one who had every reason and assurance to
believe that he was acting under the sanction of the strongest of all
civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So
ordered.
G.R. No. L-44748 August 29, 1986
RADIO COMMUNICATIONS OF THE PHILS., INC.
(RCPI). petitioner,
vs.
COURT OF APPEALS and LORETO DIONELA, respondents.
O. Pythogoras Oliver for respondents.
PARAS, J.:
Before Us, is a Petition for Review by certiorari of the decision of the
Court of Appeals, modifying the decision of the trial court in a civil case
for recovery of damages against petitioner corporation by reducing the
award to private respondent Loreto Dionela of moral damages from
P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000.
The basis of the complaint against the defendant corporation is a
telegram sent through its Manila Office to the offended party, Loreto
Dionela, reading as follows:
176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO
DIONELA CABANGAN LEGASPI CITY
WIRE ARRIVAL OF CHECK FER
LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER
115 PM
SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-
KANG PADALA DITO KAHIT BULBUL MO
(p. 19, Annex "A")
Plaintiff-respondent Loreto Dionela alleges that the defamatory words
on the telegram sent to him not only wounded his feelings but also
caused him undue embarrassment and affected adversely his
business as well because other people have come to know of said
defamatory words. Defendant corporation as a defense, alleges that
the additional words in Tagalog was a private joke between the
sending and receiving operators and that they were not addressed to
or intended for plaintiff and therefore did not form part of the telegram
and that the Tagalog words are not defamatory. The telegram sent
through its facilities was received in its station at Legaspi City. Nobody
other than the operator manned the teletype machine which
automatically receives telegrams being transmitted. The said telegram
was detached from the machine and placed inside a sealed envelope
and delivered to plaintiff, obviously as is. The additional words in
Tagalog were never noticed and were included in the telegram when
delivered.
The trial court in finding for the plaintiff ruled as follows:
There is no question that the additional words in Tagalog are libelous.
They clearly impute a vice or defect of the plaintiff. Whether or not they
were intended for the plaintiff, the effect on the plaintiff is the same.
Any person reading the additional words in Tagalog will naturally think
that they refer to the addressee, the plaintiff. There is no indication
from the face of the telegram that the additional words in Tagalog were
sent as a private joke between the operators of the defendant.
The defendant is sued directly not as an employer. The business of the
defendant is to transmit telegrams. It will open the door to frauds and
allow the defendant to act with impunity if it can escape liability by the
simple expedient of showing that its employees acted beyond the
scope of their assigned tasks.
The liability of the defendant is predicated not only on Article 33 of the
Civil Code of the Philippines but on the following articles of said Code:
ART. 19.- Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
ART. 20.-Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the same.
There is sufficient publication of the libelous Tagalog words. The office
file of the defendant containing copies of telegrams received are open
and held together only by a metal fastener. Moreover, they are open to
view and inspection by third parties.
It follows that the plaintiff is entitled to damages and attorney's fees.
The plaintiff is a businessman. The libelous Tagalog words must have
affected his business and social standing in the community. The Court
fixes the amount of P40,000.00 as the reasonable amount of moral
damages and the amount of P3,000.00 as attorney's fee which the
defendant should pay the plaintiff. (pp. 15-16, Record on Appeal)
The respondent appellate court in its assailed decision confirming the
aforegoing findings of the lower court stated:
The proximate cause, therefore, resulting in injury to appellee, was the
failure of the appellant to take the necessary or precautionary steps to
avoid the occurrence of the humiliating incident now complained of.
The company had not imposed any safeguard against such
eventualities and this void in its operating procedure does not speak
well of its concern for their clientele's interests. Negligence here is very
patent. This negligence is imputable to appellant and not to its
employees.
The claim that there was no publication of the libelous words in
Tagalog is also without merit. The fact that a carbon copy of the
telegram was filed among other telegrams and left to hang for the
public to see, open for inspection by a third party is sufficient
publication. It would have been otherwise perhaps had the telegram
been placed and kept in a secured place where no one may have had
a chance to read it without appellee's permission.
The additional Tagalog words at the bottom of the telegram are, as
correctly found by the lower court, libelous per se, and from which
malice may be presumed in the absence of any showing of good
intention and justifiable motive on the part of the appellant. The law
implies damages in this instance (Quemel vs. Court of Appeals, L-
22794, January 16, 1968; 22 SCRA 44). The award of P40,000.00 as
moral damages is hereby reduced to P15,000.00 and for attorney's
fees the amount of P2,000.00 is awarded. (pp. 22-23, record)
After a motion for reconsideration was denied by the appellate court,
petitioner came to Us with the following:
ASSIGNMENT OF ERRORS
I.The Honorable Court of Appeals erred in holding that Petitioner-
employer should answer directly and primarily for the civil liability
arising from the criminal act of its employee.
II.The Honorable Court of Appeals erred in holding that there was
sufficient publication of the alleged libelous telegram in question, as
contemplated by law on libel.
III.The Honorable Court of Appeals erred in holding that the liability of
petitioner-company-employer is predicated on Articles 19 and 20 of the
Civil Code, Articles on Human Relations.
IV.The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4,
Record)
Petitioner's contentions do not merit our consideration. The action for
damages was filed in the lower court directly against respondent
corporation not as an employer subsidiarily liable under the provisions
of Article 1161 of the New Civil Code in relation to Art. 103 of the
Revised Penal Code. The cause of action of the private respondent is
based on Arts. 19 and 20 of the New Civil Code (supra). As well as on
respondent's breach of contract thru the negligence of its own
employees. 1
Petitioner is a domestic corporation engaged in the business of
receiving and transmitting messages. Everytime a person transmits a
message through the facilities of the petitioner, a contract is entered
into. Upon receipt of the rate or fee fixed, the petitioner undertakes to
transmit the message accurately. There is no question that in the case
at bar, libelous matters were included in the message transmitted,
without the consent or knowledge of the sender. There is a clear case
of breach of contract by the petitioner in adding extraneous and
libelous matters in the message sent to the private respondent. As a
corporation, the petitioner can act only through its employees. Hence
the acts of its employees in receiving and transmitting messages are
the acts of the petitioner. To hold that the petitioner is not liable directly
for the acts of its employees in the pursuit of petitioner's business is to
deprive the general public availing of the services of the petitioner of
an effective and adequate remedy. In most cases, negligence must be
proved in order that plaintiff may recover. However, since negligence
may be hard to substantiate in some cases, we may apply the doctrine
of RES IPSA LOQUITUR (the thing speaks for itself), by considering
the presence of facts or circumstances surrounding the injury.
WHEREFORE, premises considered, the judgment of the appellate
court is hereby AFFIRMED.
SO ORDERED.
CAUSATION
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
41 |TORTS AND DAMAGES
 Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the
Medina Transportation, operated by its owner defendant Mariano
Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular
chauffeur, Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the driver, Felipe Lara,
sated to the right of Bataclan, another passenger apparently from the
Visayan Islands whom the witnesses just called Visaya, apparently not
knowing his name, seated in the left side of the driver, and a woman
named Natalia Villanueva, seated just behind the four last mentioned.
At about 2:00 o'clock that same morning, while the bus was running
within the jurisdiction of Imus, Cavite, one of the front tires burst and
the vehicle began to zig-zag until it fell into a canal or ditch on the right
side of the road and turned turtle. Some of the passengers managed to
leave the bus the best way they could, others had to be helped or
pulled out, while the three passengers seated beside the driver, named
Bataclan, Lara and the Visayan and the woman behind them named
Natalia Villanueva, could not get out of the overturned bus. Some of
the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said they could not get out of the bus. There is
nothing in the evidence to show whether or not the passengers already
free from the wreck, including the driver and the conductor, made any
attempt to pull out or extricate and rescue the four passengers trapped
inside the vehicle, but calls or shouts for help were made to the houses
in the neighborhood. After half an hour, came about ten men, one of
them carrying a lighted torch made of bamboo with a wick on one end,
evidently fueled with petroleum. These men presumably approach the
overturned bus, and almost immediately, a fierce fire started, burning
and all but consuming the bus, including the four passengers trapped
inside it. It would appear that as the bus overturned, gasoline began to
leak and escape from the gasoline tank on the side of the chassis,
spreading over and permeating the body of the bus and the ground
under and around it, and that the lighted torch brought by one of the
men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers
inside the bus were removed and duly identified that of Juan Bataclan.
By reason of his death, his widow, Salud Villanueva, in her name and
in behalf of her five minor children, brought the present suit to recover
from Mariano Medina compensatory, moral, and exemplary damages
and attorney's fees in the total amount of P87,150. After trial, the Court
of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being
carried by Bataclan to Pasay City for sale and which was lost in the
fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of
the value involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference,
we are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence
in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extra ordinary diligence for the safety of the passengers is further set
forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease upon proof that
they exercised all the diligence of a good father of a family in the
selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract
of transportation for hire, the Medina Transportation having undertaken
to carry Bataclan safely to his destination, Pasay City. We also agree
with the trial court that there was negligence on the part of the
defendant, through his agent, the driver Saylon. There is evidence to
show that at the time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as shown by the fact that
according to the testimony of the witnesses, including that of the
defense, from the point where one of the front tires burst up to the
canal where the bus overturned after zig-zaging, there was a distance
of about 150 meters. The chauffeur, after the blow-out, must have
applied the brakes in order to stop the bus, but because of the velocity
at which the bus must have been running, its momentum carried it over
a distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant
carrier is liable. The only question is to what degree. The trial court
was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather, the fire that burned the
bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though he must have
suffered physical injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the physical injuries
suffered by him. We disagree. A satisfactory definition of proximate
cause is found in Volume 38, pages 695-696 of American
jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
. . . '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.' And more comprehensively,
'the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through
some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one might
still contend that the proximate cause of his death was the fire and not
the overturning of the vehicle. But in the present case under the
circumstances obtaining in the same, we do not hesitate to hold that
the proximate cause was the overturning of the bus, this for the reason
that when the vehicle turned not only on its side but completely on its
back, the leaking of the gasoline from the tank was not unnatural or
unexpected; that the coming of the men with a lighted torch was in
response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that
because it was dark (about 2:30 in the morning), the rescuers had to
carry a light with them, and coming as they did from a rural area where
lanterns and flashlights were not available; and what was more natural
than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other
words, the coming of the men with a torch was to be expected and was
a natural sequence of the overturning of the bus, the trapping of some
of its passengers and the call for outside help. What is more, the
burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the
witness, the driver and the conductor were on the road walking back
and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could
and must have leaked from the gasoline tank and soaked the area in
and around the bus, this aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and directed even from a
distance, and yet neither the driver nor the conductor would appear to
have cautioned or taken steps to warn the rescuers not to bring the
lighted torch too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the
earning capacity of the deceased, as well as the other elements
entering into a damage award, we are satisfied that the amount of SIX
THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other
damages. We also believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs' attorneys not
only in the trial court, but also in the course of the appeal, and not
losing sight of the able briefs prepared by them, the attorney's fees
may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will
not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she
was visited by the defendant Mariano Medina, and in the course of his
visit, she overheard him speaking to one of his bus inspectors, telling
said inspector to have the tires of the bus changed immediately
because they were already old, and that as a matter of fact, he had
been telling the driver to change the said tires, but that the driver did
42 |TORTS AND DAMAGES
not follow his instructions. If this be true, it goes to prove that the driver
had not been diligent and had not taken the necessary precautions to
insure the safety of his passengers. Had he changed the tires,
specially those in front, with new ones, as he had been instructed to
do, probably, despite his speeding, as we have already stated, the
blow out would not have occurred. All in all, there is reason to believe
that the driver operated and drove his vehicle negligently, resulting in
the death of four of his passengers, physical injuries to others, and the
complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was
provisionally dismissed, because according to the fiscal, the witnesses
on whose testimony he was banking to support the complaint, either
failed or appear or were reluctant to testify. But the record of the case
before us shows the several witnesses, passengers, in that bus,
willingly and unhesitatingly testified in court to the effect of the said
driver was negligent. In the public interest the prosecution of said
erring driver should be pursued, this, not only as a matter of justice, but
for the promotion of the safety of passengers on public utility buses.
Let a copy of this decision be furnished the Department of Justice and
the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages
awarded by the trial court are increased from ONE THOUSAND
(P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the
death of Bataclan and for the attorney's fees, respectively, the decision
appealed is from hereby affirmed, with costs.
G.R. No. 92087 May 8, 1992
SOFIA FERNANDO, in her behalf and as the legal guardian of her
minor children, namely: ALBERTO & ROBERTO, all surnamed
FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA
BERTULANO, in her behalf and as the legal guardian of her minor
children, namely: EDUARDO, ROLANDO, DANIEL, AND JOCELYN,
all surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf
and as legal guardian of her minor children, namely: GILBERT,
GLEN, JOCELYN AND JOSELITO, all surnamed FAJARDO, and
EMETERIA LIAGOSO, in her behalf and as guardian ad litem, of
her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE
and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF
DAVAO, respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari praying that the amended
decision of the Court of Appeals dated January 11, 1990 in CA-G.R.
No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City of
Davao," be reversed and that its original decision dated January 31,
1986 be reinstated subject to the modification sought by the petitioners
in their motion for partial reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial court, as follows:
From the evidence presented we see the following facts: On November
7, 1975, Bibiano Morta, market master of the Agdao Public Market filed
a requisition request with the Chief of Property of the City Treasurer's
Office for the re-emptying of the septic tank in Agdao. An invitation to
bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon,
Federico Bolo and Antonio Suñer, Jr. Bascon won the bid. On
November 26, 1975 Bascon was notified and he signed the purchase
order. However, before such date, specifically on November 22, 1975,
bidder Bertulano with four other companions namely Joselito Garcia,
William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found
dead inside the septic tank. The bodies were removed by a fireman.
One body, that of Joselito Garcia, was taken out by his uncle, Danilo
Garcia and taken to the Regional Hospital but he expired there. The
City Engineer's office investigated the case and learned that the five
victims entered the septic tank without clearance from it nor with the
knowledge and consent of the market master. In fact, the septic tank
was found to be almost empty and the victims were presumed to be
the ones who did the re-emptying. Dr. Juan Abear of the City Health
Office autopsied the bodies and in his reports, put the cause of death
of all five victims as "asphyxia" caused by the diminution of oxygen
supply in the body working below normal conditions. The lungs of the
five victims burst, swelled in hemmorrhagic areas and this was due to
their intake of toxic gas, which, in this case, was sulfide gas produced
from the waste matter inside the septic tank. (p. 177, Records)
On August 28, 1984, the trial court rendered a decision, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, this case is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then
Intermediate Appellate Court (now Court of Appeals). On January 3,
1986, the appellate court issued a decision, the dispositive portion of
which reads:
WHEREFORE, in view of the facts fully established and in the liberal
interpretation of what the Constitution and the law intended to protect
the plight of the poor and the needy, the ignorant and the
indigent –– more entitled to social justice for having, in the
unforgettable words of Magsaysay, "less in life," We hereby reverse
and set aside the appealed judgment and render another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando,
Sofia Fernando and her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
2. Ordering the defendant to pay to the plaintiffs David Garcia and
Anita Garcia the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic)
and her minor children the following sums of money
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and
her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
5. Ordering the defendant to pay to the plaintiffs Norma Liagoso,
Nicolas Liagoso and Emeteria Liagoso and her minor grandchildren
the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
The death compensation is fixed at P30,000.00 in accordance with the
rulings of the Supreme Court starting with People vs. De la
Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA 518
reiterated in the recent case of People vs. Nepomuceno, No. L-41412,
May 27, 1985. Attorney's fees in the amount of P10,000.00 for the
handling of the case for the 5 victims is also awarded.
No pronouncement as to costs. SO ORDERED. (Rollo, pp. 33-34)
Both parties filed their separate motions for reconsideration. On
January 11, 1990, the Court of Appeals rendered an Amended
Decision, the dispositive portion of which reads:
WHEREFORE, finding merit in the motion for reconsideration of the
defendant-appellee Davao City, the same is hereby GRANTED. The
decision of this Court dated January 31, 1986 is reversed and set
aside and another one is hereby rendered dismissing the case. No
pronouncement as to costs.
SO ORDERED. (Rollo, p. 25)
Hence, this petition raising the following issues for resolution:
1. Is the respondent Davao City guilty of negligence in the case at bar?
2. If so, is such negligence the immediate and proximate cause of
deaths of the victims hereof? (p. 72, Rollo)
Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury (Corliss v. Manila Railroad
Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the
law, a person who by his omission causes damage to another, there
being negligence, is obliged to pay for the damage done (Article 2176,
New Civil Code). As to what would constitute a negligent act in a given
situation, the case of Picart v. Smith (37 Phil. 809, 813) provides Us
the answer, to wit:
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 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.
The question as to what would constitute the conduct of a prudent man
in a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular
case. Abstract speculation cannot here be of much value but this much
can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not,
and are not supposed to be, omniscient of the future. Hence they can
be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by the ignoring of
the suggestion born of this provision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is
this: Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable warrant his foregoing the conduct or
guarding against its consequences. (emphasis supplied)
To be entitled to damages for an injury resulting from the negligence of
another, a claimant must establish the relation between the omission
and the damage. He must prove under Article 2179 of the New Civil
Code that the defendant's negligence was the immediate and
proximate cause of his injury. Proximate cause has been defined as
that cause, which, in natural and continuous sequence unbroken by
any efficient intervening cause, produces the injury, and without which
43 |TORTS AND DAMAGES
the result would not have occurred (Vda. de Bataclan, et al. v. Medina,
102 Phil. 181, 186). Proof of such relation of cause and effect is not an
arduous one if the claimant did not in any way contribute to the
negligence of the defendant. However, where the resulting injury was
the product of the negligence of both parties, there exists a difficulty to
discern which acts shall be considered the proximate cause of the
accident. In Taylor v. Manila Electric Railroad and Light Co. (16 Phil. 8,
29-30), this Court set a guideline for a judicious assessment of the
situation:
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 produced 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. (emphasis
Ours)
Applying all these established doctrines in the case at bar and after a
careful scrutiny of the records, We find no compelling reason to grant
the petition. We affirm.
Petitioners fault the city government of Davao for failing to clean a
septic tank for the period of 19 years resulting in an accumulation of
hydrogen sulfide gas which killed the laborers. They contend that such
failure was compounded by the fact that there was no warning sign of
the existing danger and no efforts exerted by the public respondent to
neutralize or render harmless the effects of the toxic gas. They submit
that the public respondent's gross negligence was the proximate cause
of the fatal incident.
We do not subscribe to this view. While it may be true that the public
respondent has been remiss in its duty to re-empty the septic tank
annually, such negligence was not a continuing one. Upon learning
from the report of the market master about the need to clean the septic
tank of the public toilet in Agdao Public Market, the public respondent
immediately responded by issuing invitations to bid for such service.
Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano
Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent,
therefore, lost no time in taking up remedial measures to meet the
situation. It is likewise an undisputed fact that despite the public
respondent's failure to re-empty the septic tank since 1956, people in
the market have been using the public toilet for their personal
necessities but have remained unscathed. The testimonies of Messrs.
Danilo Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on
this point are relevant, to wit:
Atty. Mojica, counsel for defendant Davao City:
xxx xxx xxx
The place where you live is right along the Agdao creek, is that
correct?
DANILO GARCIA:
A Yes, sir.
Q And to be able to go to the market place, where you claim you have
a stall,, you have to pass on the septic tank?
A Yes, sir.
Q Day in and day out, you pass on top of the septic tank?
A Yes, sir.
Q Is it not a fact that everybody living along the creek passes on top of
this septic tank as they go out from the place and return to their place
of residence, is that correct?
And this septic tank, rather the whole of the septic tank, is covered by
lead . . .?
A Yes, sir. there is cover.
Q And there were three (3) of these lead covering the septic tank?
A Yes, sir.
Q And this has always been closed?
A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)
ATTY. JOVER, counsel for the plaintiffs:
Q You said you are residing at Davao City, is it not?
DAVID SEJOYA:
A Yes, sir.
Q How long have you been a resident of Agdao?
A Since 1953.
Q Where specifically in Agdao are you residing?
A At the Public Market.
Q Which part of the Agdao Public Market is your house located?
A Inside the market in front of the fish section.
Q Do you know where the Agdao septic tank is located?
A Yes, sir.
Q How far is that septic tank located from your house?
A Around thirty (30) meters.
Q Have you ever had a chance to use that septic tank (public toilet)?
A Yes, sir.
Q How many times, if you could remember?
A Many times, maybe more than 1,000 times.
Q Prior to November 22, 1975, have you ever used that septic tank
(public toilet)?
A Yes, sir.
Q How many times have you gone to that septic tank (public toilet)
prior to that date, November 22, 1975?
A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
The absence of any accident was due to the public respondent's
compliance with the sanitary and plumbing specifications in
constructing the toilet and the septic tank (TSN, November 4, 1983, p.
51). Hence, the toxic gas from the waste matter could not have leaked
out because the septic tank was air-tight (TSN, ibid, p. 49). The only
indication that the septic tank in the case at bar was full and needed
emptying was when water came out from it (TSN, September 13, 1983,
p. 41). Yet, even when the septic tank was full, there was no report of
any casualty of gas poisoning despite the presence of people living
near it or passing on top of it or using the public toilet for their personal
necessities.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the
toilet to emphasize the negligence of the city government and
presented witnesses to attest on this lack. However, this strategy
backfired on their faces. Their witnesses were not expert witnesses.
On the other hand, Engineer Demetrio Alindada of the city government
testified and demonstrated by drawings how the safety requirements
like emission of gases in the construction of both toilet and septic tank
have been complied with. He stated that the ventilation pipe need not
be constructed outside the building as it could also be embodied in the
hollow blocks as is usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners submitted no competent
evidence to corroborate their oral testimonies or rebut the testimony
given by Engr. Alindada.
We also do not agree with the petitioner's submission that warning
signs of noxious gas should have been put up in the toilet in addition to
the signs of "MEN" and "WOMEN" already in place in that area. Toilets
and septic tanks are not nuisances per se as defined in Article 694 of
the New Civil Code which would necessitate warning signs for the
protection of the public. While the construction of these public facilities
demands utmost compliance with safety and sanitary requirements,
the putting up of warning signs is not one of those requirements. The
testimony of Engr. Alindada on this matter is elucidative:
ATTY. ALBAY:
Q Mr. Witness, you mentioned the several aspects of the approval of
the building permit which include the plans of an architect, senitary
engineer and electrical plans. All of these still pass your approval as
building official, is that correct?
DEMETRIO ALINDADA:
A Yes.
Q So there is the sanitary plan submitted to and will not be approved
by you unless the same is in conformance with the provisions of the
building code or sanitary requirements?
A Yes, for private building constructions.
Q How about public buildings?
A For public buildings, they are exempted for payment of building
permits but still they have to have a building permit.
Q But just the same, including the sanitary plans, it require your
approval?
A Yes, it requires also.
Q Therefore, under the National Building Code, you are empowered
not to approve sanitary plans if they are not in conformity with the
sanitary requirements?
A Yes.
Q Now, in private or public buildings, do you see any warning signs in
the vicinity of septic tanks?
A There is no warning sign.
Q In residential buildings do you see any warning sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and immaterial, Your Honor.
ATTY. ALBAY:
But that is in consonance with their cross-examination, your Honor.
COURT:
Anyway it is already answered.
ATTY. ALBAY:
Q These warning signs, are these required under the preparation of the
plans?
A It is not required.
Q I will just reiterate, Mr. Witness. In residences, for example like the
residence of Atty. Ampig or the residence of the honorable Judge,
would you say that the same principle of the septic tank, from the water
closet to the vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)
In view of this factual milieu, it would appear that an accident such as
toxic gas leakage from the septic tank is unlikely to happen unless one
removes its covers. The accident in the case at bar occurred because
the victims on their own and without authority from the public
respondent opened the septic tank. Considering the nature of the task
44 |TORTS AND DAMAGES
of emptying a septic tank especially one which has not been cleaned
for years, an ordinarily prudent person should undoubtedly be aware of
the attendant risks. The victims are no exception; more so with Mr.
Bertulano, an old hand in this kind of service, who is presumed to know
the hazards of the job. His failure, therefore, and that of his men to
take precautionary measures for their safety was the proximate cause
of the accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors
Corporation (55 Phil. 129, 133), We held 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 (emphasis Ours). The fatal accident in this case would
not have happened but for the victims' negligence. Thus, the appellate
court was correct to observe that:
. . . Could the victims have died if they did not open the septic tank
which they were not in the first place authorized to open? Who
between the passive object (septic tank) and the active subject (the
victims herein) who, having no authority therefore, arrogated unto
themselves, the task of opening the septic tank which caused their own
deaths should be responsible for such deaths. How could the septic
tank which has been in existence since the 1950's be the proximate
cause of an accident that occurred only on November 22, 1975? The
stubborn fact remains that since 1956 up to occurrence of the accident
in 1975 no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is that the
victims' death was caused by their own negligence in opening the
septic tank. . . . (Rollo, p. 23)
Petitioners further contend that the failure of the market master to
supervise the area where the septic tank is located is a reflection of the
negligence of the public respondent.
We do not think so. The market master knew that work on the septic
tank was still forthcoming. It must be remembered that the bidding had
just been conducted. Although the winning bidder was already known,
the award to him was still to be made by the Committee on Awards.
Upon the other hand, the accident which befell the victims who are not
in any way connected with the winning bidder happened before the
award could be given. Considering that the case was yet no award to
commence work on the septic tank, the duty of the market master or
his security guards to supervise the work could not have started (TSN,
September 13, 1983, p. 40). Also, the victims could not have been
seen working in the area because the septic tank was hidden by a
garbage storage which is more or less ten (10) meters away from the
comfort room itself (TSN, ibid, pp. 38-39). The surreptitious way in
which the victims did their job without clearance from the market
master or any of the security guards goes against their good faith.
Even their relatives or family members did not know of their plan to
clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of the
New Civil Code cannot be sustained. Said law states:
Art. 24. In all contractual, property or other relations, when one of the
parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other handicap,
the courts must be vigilant for his protection.
We approve of the appellate court's ruling that "(w)hile one of the
victims was invited to bid for said project, he did not win the bid,
therefore, there is a total absence of contractual relations between the
victims and the City Government of Davao City that could give rise to
any contractual obligation, much less, any liability on the part of Davao
City." (Rollo, p. 24) The accident was indeed tragic and We empathize
with the petitioners. However, the herein circumstances lead Us to no
other conclusion than that the proximate and immediate cause of the
death of the victims was due to their own negligence. Consequently,
the petitioners cannot demand damages from the public respondent.
ACCORDINGLY, the amended decision of the Court of Appeals dated
January 11, 1990 is AFFIRMED. No costs. SO ORDERED.
G.R. No. 72964 January 7, 1988
FILOMENO URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then Circuit Criminal
Court of Dagupan City finding petitioner Filomeno Urban guilty beyond
reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco
seedbed of Marcelo Javier. He found the place where he stored his
palay flooded with water coming from the irrigation canal nearby which
had overflowed. Urbano went to the elevated portion of the canal to
see what happened and there he saw Marcelo Javier and Emilio Erfe
cutting grass. He asked them who was responsible for the opening of
the irrigation canal and Javier admitted that he was the one. Urbano
then got angry and demanded that Javier pay for his soaked palay. A
quarrel between them ensued. Urbano unsheathed his bolo (about 2
feet long, including the handle, by 2 inches wide) and hacked Javier
hitting him on the right palm of his hand, which was used in parrying
the bolo hack. Javier who was then unarmed ran away from Urbano
but was overtaken by Urbano who hacked him again hitting Javier on
the left leg with the back portion of said bolo, causing a swelling on
said leg. When Urbano tried to hack and inflict further injury, his
daughter embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
brought Javier to his house about 50 meters away from where the
incident happened. Emilio then went to the house of Barangay Captain
Menardo Soliven but not finding him there, Emilio looked for barrio
councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
together with Javier went to the police station of San Fabian to report
the incident. As suggested by Corporal Torio, Javier was brought to a
physician. The group went to Dr. Guillermo Padilla, rural health
physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no
available medicine.
After Javier was treated by Dr. Meneses, he and his companions
returned to Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20
years of age, married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period. This
wound was presented to me only for medico-legal examination, as it
was already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed
to settle their differences. Urbano promised to pay P700.00 for the
medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the
event in the police blotter (Exhibit A), to wit: xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both
parties appeared before this Station accompanied by brgy. councilman
Felipe Solis and settled their case amicably, for they are neighbors and
close relatives to each other. Marcelo Javier accepted and granted
forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
his medical treatment, and promising to him and to this Office that this
will never be repeated anymore and not to harbour any grudge against
each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On
November 3, 1980, the additional P300.00 was given to Javier at
Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted
to the hospital, Javier had lockjaw and was having convulsions. Dr.
Edmundo Exconde who personally attended to Javier found that the
latter's serious condition was caused by tetanus toxin. He noticed the
presence of a healing wound in Javier's palm which could have been
infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital.
The medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-
tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by rela-
tives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged
with the crime of homicide before the then Circuit Criminal Court of
Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS
and ONE (1) DAY of reclusion temporal, as maximum, together with
the accessories of the law, to indemnify the heirs of the victim, Marcelo
Javier, in the amount of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. He was ordered confined at
the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the
decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of
Urbano on appeal but raised the award of indemnity to the heirs of the
deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The
motion for new trial was based on an affidavit of Barangay Captain
Menardo Soliven (Annex "A") which states:
45 |TORTS AND DAMAGES

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such
position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a
typhoon that swept Pangasinan and other places of Central Luzon
including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued
irrigation dam which irrigates the ricefields of San Fabian were closed
and/or controlled so much so that water and its flow to the canals and
ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading
to the canals and ditches which will bring water to the ricefields, the
water in said canals and ditches became shallow which was suitable
for catching mudfishes;
That after the storm, I conducted a personal survey in the area
affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the
late Marcelo Javier catching fish in the shallow irrigation canals with
some companions;
That few days there after,or on November l5, l980, I came to know that
said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal
Code which provides that "Criminal liability shall be incurred: (1) By
any person committing a felony (delito) although the wrongful act done
be different from that which he intended ..." Pursuant to this provision
"an accused is criminally responsible for acts committed by him in
violation of law and for all the natural and logical consequences
resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner
who used a bolo as a result of which Javier suffered a 2-inch incised
wound on his right palm; that on November 14, 1981 which was the
22nd day after the incident, Javier was rushed to the hospital in a very
serious condition and that on the following day, November 15, 1981,
he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death
was the natural and logical consequence of Urbano's unlawful act.
Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the time of
his death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his
wound, but the cause of his death was due to said wound which was
inflicted by the appellant. Said wound which was in the process of
healing got infected with tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that
the victim suffered lockjaw because of the infection of the wound with
tetanus. And there is no other way by which he could be infected with
tetanus except through the wound in his palm (tsn., p. 78, Oct. 5,
1981). Consequently, the proximate cause of the victim's death was
the wound which got infected with tetanus. And the settled rule in this
jurisdiction is that an accused is liable for all the consequences of his
unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072;
People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death
was due to his own negligence in going back to work without his
wound being properly healed, and lately, that he went to catch fish in
dirty irrigation canals in the first week of November, 1980, is an
afterthought, and a desperate attempt by appellant to wiggle out of the
predicament he found himself in. If the wound had not yet healed, it is
impossible to conceive that the deceased would be reckless enough to
work with a disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the
death of Marcelo Javier was due to his own negligence, that Dr. Mario
Meneses found no tetanus in the injury, and that Javier got infected
with tetanus when after two weeks he returned to his farm and tended
his tobacco plants with his bare hands exposing the wound to harmful
elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted
by Urbano was infected with tetanus at the time of the infliction of the
wound. The evidence merely confirms that the wound, which was
already healing at the time Javier suffered the symptoms of the fatal
ailment, somehow got infected with tetanus However, as to when the
wound was infected is not clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38,
pages 695-696 of American Jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:
... "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."And more comprehensively,
"the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death
which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic within 14
days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality rate
approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability,
and headache are encountered occasionally, but the commonest
presenting complaints are pain and stiffness in the jaw, abdomen, or
back and difficulty swallowing. As the progresses, stiffness gives way
to rigidity, and patients often complain of difficulty opening their
mouths. In fact, trismus in the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and sequence of
muscle involvement is quite variable. In a small proportion of patients,
only local signs and symptoms develop in the region of the injury. In
the vast majority, however, most muscles are involved to some degree,
and the signs and symptoms encountered depend upon the major
muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom,
an interval referred to as the onset time. As in the case of the
incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent
stimuli arising in the periphery, which increases rigidity and causes
simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the
disease progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may
then lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14
days and an onset time of more than 6 days. Trismus is usually
present, but dysphagia is absent and generalized spasms are brief and
mild. Moderately severe tetanus has a somewhat shorter incubation
period and onset time; trismus is marked, dysphagia and generalized
rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time,
and an onset time of 72 hrs., or less, severe trismus, dysphagia and
rigidity and frequent prolonged, generalized convulsive spasms.
(Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a
man's body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right
palm when he parried the bolo which Urbano used in hacking him. This
incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus, like lockjaw
and muscle spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable
that Javier should have been infected with only a mild cause of tetanus
because the symptoms of tetanus appeared on the 22nd day after the
hacking incident or more than 14 days after the infliction of the wound.
Therefore, the onset time should have been more than six days.
Javier, however, died on the second day from the onset time. The
more credible conclusion is that at the time Javier's wound was
inflicted by the appellant, the severe form of tetanus that killed him was
not yet present. Consequently, Javier's wound could have been
infected with tetanus after the hacking incident. Considering the
circumstance surrounding Javier's death, his wound could have been
infected by tetanus 2 or 3 or a few but not 20 to 22 days before he
died.
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical
findings, however, lead us to a distinct possibility that the infection of
the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The
infection was, therefore, distinct and foreign to the crime. (People v.
Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had
46 |TORTS AND DAMAGES
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al.
(99 Phil. 118).
"A prior and remote cause cannot be made the be 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 instances which result in injury because of the prior
defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of
inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After the
hacking incident, Urbano and Javier used the facilities of barangay
mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express provisions of
Presidential Decree G.R. No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual
case. It does not necessarily follow that the petitioner is also free of
civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29,
1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be
established beyond reasonable doubt, only a preponderance of
evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which
the civil liability might arise did not exist. (Padilla v. Court of Appeals,
129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt
has not been proved beyond reasonable doubt does not necessarily
exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is derived
from the criminal offense, when the latter is not proved, civil liability
cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction. The
two liabilities are separate and distinct from each other. One affects the
social order and the other, private rights. One is for the punishment or
correction of the offender while the other is for reparation of damages
suffered by the aggrieved party. The two responsibilities are so
different from each other that article 1813 of the present (Spanish) Civil
Code reads thus: "There may be a compromise upon the civil action
arising from a crime; but the public action for the imposition of the legal
penalty shall not thereby be extinguished." It is just and proper that, for
the purposes of the imprisonment of or fine upon the accused, the
offense should be proved beyond reasonable doubt. But for the
purpose of indemnity the complaining party, why should the offense
also be proved beyond reasonable doubt? Is not the invasion or
violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private
because the wrongful act is also punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It will
close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."
The respondent court increased the P12,000.00 indemnification
imposed by the trial court to P30,000.00. However, since the
indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner
was not thoroughly examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The
questioned decision of the then Intermediate Appellate Court, now
Court of Appeals, is REVERSED and SET ASIDE. The petitioner is
ACQUITTED of the crime of homicide. Costs de oficio.SO ORDERED.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 — at about 1:30 a.m. —
private respondent Leonardo Dionisio was on his way home — he lived
in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-
dinner meeting with his boss, the general manager of a marketing
corporation. During the cocktails phase of the evening, Dionisio had
taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car
and had just crossed the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his home, and was
proceeding down General Lacuna Street, when his car headlights (in
his allegation) suddenly failed. He switched his headlights on "bright"
and thereupon he saw a Ford dump truck looming some 2-1/2 meters
away from his car. The dump truck, owned by and registered in the
name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked
on the right hand side of General Lacuna Street (i.e., on the right hand
side of a person facing in the same direction toward which Dionisio's
car was proceeding), facing the oncoming traffic. The dump truck was
parked askew (not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of oncoming traffic.
There were no lights nor any so-called "early warning" reflector devices
set anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out early the following
morning, Dionisio claimed that he tried to avoid a collision by swerving
his car to the left but it was too late and his car smashed into the dump
truck. As a result of the collision, Dionisio suffered some physical
injuries including some permanent facial scars, a "nervous breakdown"
and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First
Instance of Pampanga basically claiming that the legal and proximate
cause of his injuries was the negligent manner in which Carbonel had
parked the dump truck entrusted to him by his employer Phoenix.
Phoenix and Carbonel, on the other hand, countered that the
proximate cause of Dionisio's injuries was his own recklessness in
driving fast at the time of the accident, while under the influence of
liquor, without his headlights on and without a curfew pass. Phoenix
also sought to establish that it had exercised due rare in the selection
and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against
Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for
hospital bills and the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as
loss of expected income for plaintiff brought about the accident in
controversy and which is the result of the negligence of the
defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as
moral damages for the unexpected and sudden withdrawal of plaintiff
from his lifetime career as a marketing man; mental anguish, wounded
feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration
in life experienced by plaintiff and his family since the accident in
controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as
damages for the wanton disregard of defendants to settle amicably this
case with the plaintiff before the filing of this case in court for a smaller
amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due
as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court.
That court in CA-G.R. No. 65476 affirmed the decision of the trial court
but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was reduced
to P100,000.00, basically because Dionisio had voluntarily resigned his
job such that, in the opinion of the appellate court, his loss of income
"was not solely attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence reduced
to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a
petition for review.
Both the trial court and the appellate court had made fairly explicit
findings of fact relating to the manner in which the dump truck was
parked along General Lacuna Street on the basis of which both courts
drew the inference that there was negligence on the part of Carbonel,
the dump truck driver, and that this negligence was the proximate
47 |TORTS AND DAMAGES
cause of the accident and Dionisio's injuries. We note, however, that
both courts failed to pass upon the defense raised by Carbonel and
Phoenix that the true legal and proximate cause of the accident was
not the way in which the dump truck had been parked but rather the
reckless way in which Dionisio had driven his car that night when he
smashed into the dump truck. The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was "in some
way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the
record both before the trial court and the Intermediate Appellate Court
and we find that both parties had placed into the record sufficient
evidence on the basis of which the trial court and the appellate court
could have and should have made findings of fact relating to the
alleged reckless manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there was negligence
in the manner in which the dump truck was parked, that negligence
was merely a "passive and static condition" and that private
respondent Dionisio's recklessness constituted an intervening, efficient
cause determinative of the accident and the injuries he sustained. The
need to administer substantial justice as between the parties in this
case, without having to remand it back to the trial court after eleven
years, compels us to address directly the contention put forward by the
petitioners and to examine for ourselves the record pertaining to
Dionisio's alleged negligence which must bear upon the liability, or
extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or
not private respondent Dionisio had a curfew pass valid and effective
for that eventful night; (b) whether Dionisio was driving fast or speeding
just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump
truck or whether those headlights accidentally malfunctioned moments
before the collision; and (d) whether Dionisio was intoxicated at the
time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew
pass was found on the person of Dionisio immediately after the
accident nor was any found in his car. Phoenix's evidence here
consisted of the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for emergency
treatment immediately after the accident. At the Makati Medical Center,
a nurse took off Dionisio's clothes and examined them along with the
contents of pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any curfew pass during
the trial. Instead, he offered the explanation that his family may have
misplaced his curfew pass. He also offered a certification (dated two
years after the accident) issued by one Major Benjamin N. Libarnes of
the Zone Integrated Police Intelligence Unit of Camp Olivas, San
Fernando, Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila. This certification was
to the effect that private respondent Dionisio had a valid curfew pass.
This certification did not, however, specify any pass serial number or
date or period of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove possession of a valid
curfew pass during the night of the accident and that the
preponderance of evidence shows that he did not have such a pass
during that night. The relevance of possession or non-possession of a
curfew pass that night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in
order to avoid detection and possibly arrest by the police in the nearby
police station for travelling after the onset of curfew without a valid
curfew pass.
On the second issue — whether or not Dionisio was speeding home
that night — both the trial court and the appellate court were
completely silent.
The defendants in the trial court introduced the testimony of Patrolman
Cuyno who was at the scene of the accident almost immediately after it
occurred, the police station where he was based being barely 200
meters away. Patrolman Cuyno testified that people who had gathered
at the scene of the accident told him that Dionisio's car was "moving
fast" and did not have its headlights on. 2 Dionisio, on the other hand,
claimed that he was travelling at a moderate speed at 30 kilometers
per hour and had just crossed the intersection of General Santos and
General Lacuna Streets and had started to accelerate when his
headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony
was hearsay and did not fag within any of the recognized exceptions to
the hearsay rule since the facts he testified to were not acquired by
him through official information and had not been given by the
informants pursuant to any duty to do so. Private respondent's
objection fails to take account of the fact that the testimony of
Patrolman Cuyno is admissible not under the official records exception
to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial
evidence under this exception to the hearsay rule consists of excited
utterances made on the occasion of an occurrence or event sufficiently
startling in nature so as to render inoperative the normal reflective
thought processes of the observer and hence made as a spontaneous
reaction to the occurrence or event, and not the result of reflective
thought. 6
We think that an automobile speeding down a street and suddenly
smashing into a stationary object in the dead of night is a sufficiently
startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time. The
testimony of Patrolman Cuyno was therefore admissible as part of
the res gestae and should have been considered by the trial court.
Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to
describe quantitatively the precise velocity at winch Dionisio was
travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his
headlights, or whether his headlights accidentally malfunctioned, just
moments before the accident. The Intermediate Appellate Court
expressly found that the headlights of Dionisio's car went off as he
crossed the intersection but was non-committal as to why they did so.
It is the petitioners' contention that Dionisio purposely shut off his
headlights even before he reached the intersection so as not to be
detected by the police in the police precinct which he (being a resident
in the area) knew was not far away from the intersection. We believe
that the petitioners' theory is a more credible explanation than that
offered by private respondent Dionisio — i.e., that he had his
headlights on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright" split seconds
before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at
the time of the accident. The evidence here consisted of the testimony
of Patrolman Cuyno to the effect that private respondent Dionisio
smelled of liquor at the time he was taken from his smashed car and
brought to the Makati Medical Center in an unconscious
condition. 7 This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that this evidence is
sufficient to show that Dionisio was so heavily under the influence of
liquor as to constitute his driving a motor vehicle per se an act of
reckless imprudence. 8 There simply is not enough evidence to show
how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are
also aware that "one shot or two" of hard liquor may affect different
people differently.
The conclusion we draw from the factual circumstances outlined above
is that private respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving faster than he
should have been. Worse, he extinguished his headlights at or near
the intersection of General Lacuna and General Santos Streets and
thus did not see the dump truck that was parked askew and sticking
out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of the
accident and of Dionisio's injuries was the wrongful — or negligent
manner in which the dump truck was parked in other words, the
negligence of petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on the one hand
and the accident and respondent's injuries on the other hand, is quite
clear. Put in a slightly different manner, the collision of Dionisio's car
with the dump truck was a natural and foreseeable consequence of the
truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was
merely a "passive and static condition" and that private respondent
Dionisio's negligence was an "efficient intervening cause and that
consequently Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier negligence of
Carbonel. We note that the petitioners' arguments are drawn from a
reading of some of the older cases in various jurisdictions in the United
States but we are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that even in the
United States, the distinctions between "cause" and "condition" which
the 'petitioners would have us adopt have already been "almost
entirely discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between
the active "cause" of the harm and the existing "conditions" upon which
that cause operated. If the defendant has created only a passive static
condition which made the damage possible, the defendant is said not
to be liable. But so far as the fact of causation is concerned, in the
sense of necessary antecedents which have played an important part
in producing the result it is quite impossible to distinguish between
active forces and passive situations, particularly since, as is invariably
the case, the latter are the result of other active forces which have
gone before. The defendant who spills gasoline about the premises
creates a "condition," but the act may be culpable because of the
danger of fire. When a spark ignites the gasoline, the condition has
done quite as much to bring about the fire as the spark; and since that
is the very risk which the defendant has created, the defendant will not
escape responsibility. Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable to
another who fans into it a month afterward. "Cause" and "condition" still
find occasional mention in the decisions; but the distinction is now
almost entirely discredited. So far as it has any validity at all, it must
refer to the type of case where the forces set in operation by the
48 |TORTS AND DAMAGES
defendant have come to rest in a position of apparent safety, and
some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but the
nature of the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being
a "passive and static condition" was rather an indispensable and
efficient cause. The collision between the dump truck and the private
respondent's car would in an probability not have occurred had the
dump truck not been parked askew without any warning lights or
reflector devices. The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna
Street and for having so created this risk, the truck driver must be held
responsible. In our view, Dionisio's negligence, although later in point
of time than the truck driver's negligence and therefore closer to the
accident, was not an efficient intervening or independent cause. What
the Petitioners describe as an "intervening cause" was no more than a
foreseeable consequent manner which the truck driver had parked the
dump truck. In other words, the petitioner truck driver owed a duty to
private respondent Dionisio and others similarly situated not to impose
upon them the very risk the truck driver had created. Dionisio's
negligence was not of an independent and overpowering nature as to
cut, as it were, the chain of causation in fact between the improper
parking of the dump truck and the accident, nor to sever the juris
vinculum of liability. It is helpful to quote once more from Professor and
Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which
in ordinary human experience is reasonably to be anticipated or one
which the defendant has reason to anticipate under the particular
circumstances, the defendant may be negligence among other
reasons, because of failure to guard against it; or the defendant may
be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising
later wig spread it beyond the defendant's own property, and therefore
to take precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may
foresee the risk of fire from some independent source. ... In all of these
cases there is an intervening cause combining with the defendant's
conduct to produce the result and in each case the defendant's
negligence consists in failure to protect the plaintiff against that very
risk.
Obviously the defendant cannot be relieved from liability by the fact
that the risk or a substantial and important part of the risk, to which the
defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the
usual weather of the vicinity, including all ordinary forces of nature
such as usual wind or rain, or snow or frost or fog or even
lightning; that one who leaves an obstruction on the road or a railroad
track should foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the
foreseeable negligence of others. ... [The standard of reasonable
conduct may require the defendant to protect the plaintiff against 'that
occasional negligence which is one of the ordinary incidents of human
life, and therefore to be anticipated.' Thus, a defendant who blocks the
sidewalk and forces the plaintiff to walk in a street where the plaintiff
will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently
driven; and one who parks an automobile on the highway without lights
at night is not relieved of responsibility when another negligently drives
into it. --- 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the injury
remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are
subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).
Petitioners also ask us to apply what they refer to as the "last clear
chance" doctrine. The theory here of petitioners is that while the
petitioner truck driver was negligent, private respondent Dionisio had
the "last clear chance" of avoiding the accident and hence his injuries,
and that Dionisio having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance doctrine of the
common law was imported into our jurisdiction by Picart vs.
Smith 11 but it is a matter for debate whether, or to what extent, it has
found its way into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to mitigate the
harshness of another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also negligent,
even if the plaintiff's negligence was relatively minor as compared with
the wrongful act or omission of the defendant. 13 The common law
notion of last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the defendant had
the last clear chance to avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if any, the common
law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to
recovery by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in
negligence cases in a civil law jurisdiction like ours? We do not believe
so. Under Article 2179, the task of a court, in technical terms, is to
determine whose negligence — the plaintiff's or the defendant's — was
the legal or proximate cause of the injury. That task is not simply or
even primarily an exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of time of the
plaintiff's and the defendant's negligent acts or omissions, is only one
of the relevant factors that may be taken into account. Of more
fundamental importance are the nature of the negligent act or omission
of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that
the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate
plaintiff failed to act with that increased diligence which had become
necessary to avoid the peril precisely created by the truck driver's own
wrongful act or omission. To accept this proposition is to come too
close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among the members
of society. To accept the petitioners' pro-position must tend to weaken
the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of
negligence on the part of his employer Phoenix 16 in supervising its
employees properly and adequately. The respondent appellate court in
effect found, correctly in our opinion, that Phoenix was not able to
overcome this presumption of negligence. The circumstance that
Phoenix had allowed its truck driver to bring the dump truck to his
home whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on the part of
Phoenix to supervise the manner in which the dump truck is parked
when away from company premises, is an affirmative showing of culpa
in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the
comparative negligence of private respondent Dionisio on one hand
and petitioners Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarity liable therefor to the
former. The award of exemplary damages and attorney's fees and
costs shall be borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. 18 We see no sufficient
reason for disturbing the reduced award of damages made by the
respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is
modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners. SO ORDERED.
G.R. No. 105410 July 25, 1994
PILIPINAS BANK, petitioner,
vs.
HON. COURT OF APPEALS AND FLORENCIO
REYES, respondents.
Gella Reyes Danguilan & Associates for petitioner.
Santos V. Pampolina, Jr. for private respondent.
PUNO, J.:
This is a petition for review of the Decision of the respondent court1 in
CA-G.R. CV No. 29524 dated May 13, 1992 which ordered petitioner
to pay the private respondent the sum of P50,000.00 as moral
damages, P25,000.00 as attorney's fees and cost of suit.
The facts as found both by the trial court2 and the respondent court
are:
As payments for the purchased shoe materials and rubber shoes,
Florencio Reyes issued postdated checks to Winner Industrial
Corporation for P20,927.00 and Vicente Tui, for P11,419.50, with due
dates on October 10 and 12, 1979, respectively.
To cover the face value of the checks, plaintiff, on October 10, 1979,
requested PCIB Money Shop's manager Mike Potenciano to effect the
withdrawal of P32,000.00 from his savings account therein and have it
deposited with his current account with Pilipinas Bank (then Filman
Bank), Biñan Branch. Roberto Santos was requested to make the
deposit.
In depositing in the name of FLORENCIO REYES, he inquired from the
teller the current account number of Florencio Reyes to complete the
deposit slip he was accomplishing. He was informed that it was "815"
49 |TORTS AND DAMAGES
and so this was the same current account number he placed on the
deposit slip below the depositor's name FLORENCIO REYES.
Nothing that the account number coincided with the name Florencio,
Efren Alagasi, then Current Account Bookkeeper of Pilipinas Bank,
thought it was for Florencio Amador who owned the listed account
number. He, thus, posted the deposted in the latter's account not
noticing that the depositor's surname in the deposit slip was REYES.
On October 11, 1979, the October 10, check in favor of Winner
Industrial Corporation was presented for payment. Since the ledger of
Florencio Reyes indicated that his account had only a balance of
P4,078.43, it was dishonored and the payee was advised to try it for
next clearing.
On October 15, 1979, the October 10, 1979 check was redeposited but
was again dishonored. Likewise, the October 12, 1979 check in favor
of Vicente Tui when presented for payment on that same date met the
same fate but was advised to try the next clearing. Two days after the
October 10 check was again dishonored, the payee returned the same
to Florencio Reyes and demanded a cash payment of its face value
which he did if only to save his name. The October 12, 1979 check
was redeposited on October 18, 1979, but again dishonored for the
reason that the check was drawn against insufficient fund.
Furious over the incident, he immediately proceeded to the bank and
urged an immediate verification of his account.
Upon verification, the bank noticed the error. The P32,000.00 deposit
posted in the account of Florencio Amador was immediately
transferred to the account of Reyes upon being cleared by Florencio
Amador that he did not effect a deposit in the amount of P32,000.00.
The transfer having been effected, the bank then honored the October
12, 1979, check (Exh. "C").
On the basis of these facts, the trial court ordered petitioner to pay to
the private respondent: (1) P200,000.00 as compensatory damages;
(2) P100,000.00 as moral damages; (3) P25,000.00 as attorney's fees,
and (4) the costs of suit. On appeal to the respondent court, the
judgment was modified as aforestated.
In this petition for review, petitioner argues:
I. Respondent Court of Appeals erred on a matter of law, in not
applying the first sentence of Article 2179, New Civil Code, in view of
its own finding that respondent Reyes' own representative committed
the mistake in writing down the correct account number;
II. Respondent Court of Appeals erred, on a matter of law, in holding
that respondent Reyes has the right to recover moral damages and in
awarding the amount of P50,000.00, when there is no legal nor factual
basis for it;
III. The Honorable Court of Appeals erred, on a matter of law, in
holding petitioner liable for attorney's fees in the amount of
P20,000.00, when there is no legal nor factual basis for it.
We find no merit in the petition.
First. For Article 21793 of the Civil Code to apply, it must be established
that private respondent's own negligence was the immediate and
proximate cause of his injury. The concept of proximate cause is well
defined in our corpus of jurisprudence as "any cause which, in natural
and continuous sequence, unbroken by any efficient intervening cause,
produces the result complained of and without which would not have
occurred and from which it ought to have been forseen or reasonably
anticipated by a person of ordinary case that the injury complained of
or some similar injury, would result therefrom as a natural and
probable consequence."4 In the case at bench, the proximate cause of
the injury is the negligence of petitioner's employee in erroneously
posting the cash deposit of private respondent in the name of another
depositor who had a similar first name. As held by the trial court:
xxx xxx xxx
Applying the test, the bank employee is, on that basis, deemed to have
failed to exercise the degree of care required in the performance of his
duties. As earlier stated, the bank employee posted the cash deposit in
the account of Florencio Amador from his assumption that the name
Florencio appearing on the ledger without, however, going through the
full name, is the same Florencio stated in the deposit slip. He should
have continuously gone beyond mere assumption, which was proven
to be erroneous, and proceeded with clear certainty, considering the
amount involved and the repercussions it would create on the totality of
the person notable of which is the credit standing of the person
involved should a mistake happen. The checks issued by the plaintiff in
the course of his business were dishonored by the bank because the
ledger of Florencio Reyes indicated a balance insufficient to cover the
face value of checks.
Second. In light of this negligence, the liability of petitioner for moral
damages cannot be impugned. So we held in Bank of the Philippine
Islands vs. IAC, et al.5
The bank is not expected to be infallible but, as correctly observed by
respondent Appellate Court, in this instance, it must bear the blame for
not discovering the mistake of its teller despite the established
procedure requiring the papers and bank books to pass through a
battery of bank personnel whose duty it is to check and countercheck
them for possible errors. Apparently, the officials and employees
tasked to do that did not perform their duties with due care, as may be
gathered from the testimony of the bank's lone witness, Antonio
Enciso, who casually declared that "the approving officer does not
have to see the account numbers and all those things. Those are very
petty things for the approving manager to look into" (p. 78, Record on
Appeal). Unfortunately, it was a "petty thing," like the incorrect account
number that the bank teller wrote on the initial deposit slip for the
newly-opened joint current account of the Canlas spouses that sparked
this half-a-million-peso damage suit against the bank.
While the bank's negligence may not have been attended with malice
and bad faith, nevertheless, it caused serious anxiety, embarrassment
and humiliation to the private respondents for which they are entitled to
recover reasonable moral damages (American Express International,
Inc. IAC, 167 SCRA 209). The award of reasonable attorney's fees is
proper for the private respondent's were compelled to litigate to protect
their interest (Art. 2208, Civil Code). However, the absence of malice
and bad faith renders the award of exemplary damages improper
(Globe Mackay Cable and Radio Corp. vs. Court of Appeals, 176
SCRA 778).
IN VIEW WHEREOF, the petition is denied there being no reversible
error in the Decision of the respondent court. Cost against petitioner.
SO ORDERED.
G.R. No. 150304 June 15, 2005
QUEZON CITY GOVERNMENT and Engineer RAMIR J.
TIAMZON, Petitioners,
vs.
FULGENCIO DACARA*, Respondent.
DECISION
PANGANIBAN, J.:
The review of cases under Rule 45 of the Rules of Court is limited to
errors of law. Unless there is a showing that the findings of the lower
court are totally devoid of support or are glaringly erroneous, this Court
will not analyze or weigh evidence all over again. Under the
circumstance, the factual findings and conclusions of the Court of
Appeals affirming those of the trial courts will be conclusive upon the
Supreme Court. Furthermore, well-entrenched is the rule that points of
law, theories, issues and arguments not brought to the attention of the
trial court cannot be raised for the first time on appeal or certiorari.
Finally, this Court reiterates the principle that moral damages are
designed to compensate the claimant for actual injury suffered, not to
impose a penalty on the wrongdoer. Hence, absent any definite finding
as to what they consist of, the alleged moral damages suffered would
become a penalty rather than a compensation for actual injury
suffered.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court,
assailing the February 21, 2001 Decision2 and the October 9, 2001
Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 29392. The
challenged Decision disposed as follows:
"WHEREFORE, premises considered, the Decision dated June 29,
1990 in Civil Case No. Q-88-233 should be AFFIRMED, with costs
against the appellants."4
The assailed Resolution denied petitioners' Motion for Reconsideration.
The Facts
The CA summarized the facts in this manner:
"Sometime on February 28, 1988 at about 1:00 A.M., Fulgencio
Dacara, Jr., son of Fulgencio P. Dacara, Sr. and owner of '87 Toyota
Corolla 4-door Sedan with Plate No. 877 (sic), while driving the said
vehicle, rammed into a pile of earth/street diggings found at Matahimik
St., Quezon City, which was then being repaired by the Quezon City
government. As a result, Dacarra (sic), Jr. allegedly sustained bodily
injuries and the vehicle suffered extensive damage for it turned turtle
when it hit the pile of earth.
"Indemnification was sought from the city government (Record, p. 22),
which however, yielded negative results. Consequently, Fulgencio P.
Dacara (hereinafter referred to as FULGENCIO), for and in behalf of
his minor son, Jr., filed a Complaint (Record, p. 1) for damages against
the Quezon City and Engr. Ramir Tiamzon, as defendants, before the
Regional Trial Court, National Capital Judicial Region, Branch 101,
Quezon City, docketed as Civil Case No. Q-88-233. FULGENCIO
prayed that the amount of not less than ₱20,000.00 actual or
compensatory damages, ₱150,000.00 moral damages, ₱30,000.00
exemplary damages, and ₱20,000.00 attorney's fees and costs of the
suit be awarded to him.
"In an Answer with Affirmative and/or Special Defenses (Record, p.
11), defendants admitted the occurrence of the incident but alleged
that the subject diggings was provided with a moun[d] of soil and
barricaded with reflectorized traffic paint with sticks placed before or
after it which was visible during the incident on February 28, 1988 at
1:00 A.M. In short, defendants claimed that they exercised due care by
providing the area of the diggings all necessary measures to avoid
accident. Hence, the reason why Fulgencio Dacara, Jr. fell into the
diggings was precisely because of the latter's negligence and failure to
exercise due care."5
After trial on the merits, the Regional Trial Court (RTC), Branch 101,
Quezon City, rendered its Decision6 dated June 29, 1990. The
evidence proffered by the complainant (herein respondent) was found
to be sufficient proof of the negligence of herein petitioners. Under
Article 2189 of the Civil Code,7 the latter were held liable as follows:
50 |TORTS AND DAMAGES
"WHEREFORE, premises above considered, based on the quantum of
evidence presented by the plaintiff which tilts in their favor elucidating
the negligent acts of the city government together with its employees
when considered in the light of Article 2189, judgment is hereby
rendered ordering the defendants to indemnify the plaintiff the sum of
twenty thousand pesos as actual/compensatory damages, ₱10,000.00
as moral damages, ₱5,000.00 as exemplary damages, ₱10,000.00 as
attorney's fees and other costs of suit."8
In their appeal to the CA, petitioners maintained that they had
observed due diligence and care in installing preventive warning
devices, and that it was in fact the plaintiff who had failed to exercise
prudence by driving too fast to avoid the diggings. Moreover, the lower
court allegedly erred in using Article 2189 of the Civil Code, which
supposedly applied only to liability for the death or injuries suffered by
a person, not for damage to property.
Ruling of the Court of Appeals
The CA agreed with the RTC's finding that petitioners' negligence was
the proximate cause of the damage suffered by respondent. 9 Noting
the failure of petitioners to present evidence to support their contention
that precautionary measures had indeed been observed, it ruled thus:
"x x x. Sadly, the evidence indicates that [petitioners] failed to show
that they placed sufficient and adequate precautionary signs at
Matahimik Street to minimize or prevent the dangers to life and limb
under the circumstances. Contrary to the testimony of the witnesses
for the [petitioners], namely Engr. Ramir Tiamzon, Ernesto Landrito
and Eduardo Castillo, that there were signs, gasera which was buried
so that its light could not be blown off by the wind and barricade, none
was ever presented to stress and prove the sufficiency and adequacy
of said contention."10
Further upholding the trial court's finding of negligence on the part of
herein petitioners, the CA gave this opinion:
"x x x. As observed by the trial court, the negligence of [petitioners]
was clear based on the investigation report of Pfc. William P.
Villafranca stating to the effect 'that the subject vehicle rammed into a
pile of earth from a deep excavation thereat without any warning
devi[c]e whatsoever and as a consequence thereof, Dacara, Jr. lost
control of his driven car and finally turned-turtle causing substantial
damage to the same.' As a defense against liability on the basis of
quasi-delict, one must have exercised the diligence of a good father of
a family which [petitioners] failed to establish in the instant case." 11
Whether Article 2189 is applicable to cases in which there has been no
death or physical injury, the CA ruled in the affirmative:
"x x x. More importantly, we find it illogical to limit the liability to death
or personal injury only as argued by appellants in the case at bar
applying the foregoing provisions. For, injury is an act that damages,
harms or hurts and mean in common as the act or result of inflicting on
a person or thing something that causes loss, pain, distress, or
impairment. Injury is the most comprehensive, applying to an act or
result involving an impairment or destruction of right, health, freedom,
soundness, or loss of something of value."12Hence, this Petition.13
Issues
Petitioners raise the following issues for our consideration:
"1. The Honorable Court of Appeals decided a question of
law/substance contrary to applicable law and jurisprudence when it
affirmed the award of moral damage suit (sic) the amount of
₱10,000.00.
2. The Honorable Court of Appeals decided a question of
law/substance contrary to applicable law and jurisprudence when it
affirmed the award of exemplary damage sin (sic) the amount of
₱5,000.00 and attorney's fee in the [a]mount of ₱10,000.00.
3. The Honorable Court of Appeals gravely erred and/;or (sic) had
acted with grave abuse of discretion amounting to lack and/or excess
of jurisdiction when it refused to hold that respondent's son in the
person of Fulgencio Dacara, Jr. was negligent at the time of incident." 14
Because the issues regarding the liability of petitioners for moral and
exemplary damages presuppose that their negligence caused the
vehicular accident, we first resolve the question of negligence or the
proximate cause of the incident.
The Court's Ruling-The Petition is partly meritorious.
First Issue:Negligence
Maintaining that they were not negligent, petitioners insist that they
placed all the necessary precautionary signs to alert the public of a
roadside construction. They argue that the driver (Fulgencio Dacara
Jr.) of respondent's car was overspeeding, and that his own negligence
was therefore the sole cause of the incident.
Proximate cause is defined as any cause that produces injury in a
natural and continuous sequence, unbroken by any efficient
intervening cause, such that the result would not have occurred
otherwise.15 Proximate cause is determined from the facts of each
case, upon a combined consideration of logic, common sense, policy
and precedent.16
What really caused the subject vehicle to turn turtle is a factual issue
that this Court cannot pass upon, absent any whimsical or capricious
exercise of judgment by the lower courts or an ample showing that
they lacked any basis for their conclusions.17 The unanimity of the CA
and the trial court in their factual ascertainment that petitioners'
negligence was the proximate cause of the accident bars us from
supplanting their findings and substituting these with our own. The
function of this Court is limited to the review of the appellate court's
alleged errors of law. It is not required to weigh all over again the
factual evidence already considered in the proceedings
below.18 Petitioners have not shown that they are entitled to an
exception to this rule.19 They have not sufficiently demonstrated any
special circumstances to justify a factual review.
That the negligence of petitioners was the proximate cause of the
accident was aptly discussed in the lower court's finding, which we
quote:
"Facts obtaining in this case are crystal clear that the accident of
February 28, 1988 which caused almost the life and limb of Fulgencio
Dacara, Jr. when his car turned turtle was the existence of a pile of
earth from a digging done relative to the base failure at Matahimik
Street nary a lighting device or a reflectorized barricade or sign
perhaps which could have served as an adequate warning to motorist
especially during the thick of the night where darkness is pervasive.
"Contrary to the testimony of the witnesses for the defense that there
were signs, gasera which was buried so that its light could not be
blown off by the wind and barricade, none was ever presented to
stress the point that sufficient and adequate precautionary signs were
placed at Matahimik Street. If indeed signs were placed thereat, how
then could it be explained that according to the report even of the
policeman which for clarity is quoted again, none was found at the
scene of the accident.
xxxxxxxxx
"Negligence of a person whether natural or juridical over a particular
set of events is transfixed by the attending circumstances so that the
greater the danger known or reasonably anticipated, the greater is the
degree of care required to be observed.
xxxxxxxxx
"The provisions of Article 2189 of the New Civil Code capsulizes the
responsibility of the city government relative to the maintenance of
roads and bridges since it exercises the control and supervision over
the same. Failure of the defendant to comply with the statutory
provision found in the subject-article is tantamount to negligence per
se which renders the City government liable. Harsh application of the
law ensues as a result thereof but the state assumed the responsibility
for the maintenance and repair of the roads and bridges and neither
exception nor exculpation from liability would deem just and
equitable."20 (Emphasis supplied)
Petitioners belatedly point out that Fulgencio Jr. was driving at the
speed of 60 kilometers per hour (kph) when he met the accident. This
speed was allegedly well above the maximum limit of 30 kph allowed
on "city streets with light traffic, when not designated 'through streets,'"
as provided under the Land Transportation and Traffic Code (Republic
Act 4136). Thus, petitioners assert that Fulgencio Jr., having violated a
traffic regulation, should be presumed negligent pursuant to Article
218521 of the Civil Code.22
These matters were, however, not raised by petitioners at any time
during the trial. It is evident from the records that they brought up for
the first time the matter of violation of RA 4136 in their Motion for
Reconsideration23 of the CA Decision dated February 21, 2001. It is too
late in the day for them to raise this new issue. It is well-settled that
points of law, theories or arguments not brought out in the original
proceedings cannot be considered on review or appeal. 24 To consider
their belatedly raised arguments at this stage of the proceedings would
trample on the basic principles of fair play, justice, and due process. 25
Indeed, both the trial and the appellate courts' findings, which are
amply substantiated by the evidence on record, clearly point to
petitioners' negligence as the proximate cause of the damages
suffered by respondent's car. No adequate reason has been given to
overturn this factual conclusion.
Second Issue:Moral Damages
Petitioners argue that moral damages are recoverable only in the
instances specified in Article 221926 of the Civil Code. Although the
instant case is an action for quasi-delict, petitioners contend that moral
damages are not recoverable, because no evidence of physical injury
were presented before the trial court.27
To award moral damages, a court must be satisfied with proof of the
following requisites: (1) an injury -- whether physical, mental, or
psychological -- clearly sustained by the claimant; (2) a culpable act or
omission factually established; (3) a wrongful act or omission of the
defendant as the proximate cause of the injury sustained by the
claimant; and (4) the award of damages predicated on any of the
cases stated in Article 2219.28
Article 2219(2) specifically allows moral damages to be recovered for
quasi-delicts, provided that the act or omission caused physical
injuries. There can be no recovery of moral damages unless the quasi-
delict resulted in physical injury.29 This rule was enunciated in Malonzo
v. Galang30 as follows:
"x x x. Besides, Article 2219 specifically mentions 'quasi-delicts causing
physical injuries,' as an instance when moral damages may be
allowed, thereby implying that all other quasi-delicts not resulting in
physical injuries are excluded, excepting of course, the special torts
referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29,
30, 32, 34 and 35 on the chapter on human relations (par. 10, Art.
2219)."
51 |TORTS AND DAMAGES
In the present case, the Complaint alleged that respondent's son
Fulgencio Jr. sustained physical injuries. The son testified that he
suffered a deep cut on his left arm when the car overturned after hitting
a pile of earth that had been left in the open without any warning
device whatsoever.
It is apparent from the Decisions of the trial and the appellate courts,
however, that no other evidence (such as a medical certificate or proof
of medical expenses) was presented to prove Fulgencio Jr.'s bare
assertion of physical injury. Thus, there was no credible proof that
would justify an award of moral damages based on Article 2219(2) of
the Civil Code.
Moreover, the Decisions are conspicuously silent with respect to the
claim of respondent that his moral sufferings were due to the
negligence of petitioners. The Decision of the trial court, which
summarizes the testimony of respondent's four witnesses, makes no
mention of any statement regarding moral suffering, such as mental
anguish, besmirched reputation, wounded feelings, social humiliation
and the like.
Moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury unjustly
inflicted on a person.31 Intended for the restoration of the psychological
or emotional status quo ante, the award of moral damages is designed
to compensate emotional injury suffered, not to impose a penalty on
the wrongdoer.
For the court to arrive upon a judicious approximation of emotional or
moral injury, competent and substantial proof of the suffering
experienced must be laid before it. Essential to this approximation
are definite findings as to what the supposed moral damages suffered
consisted of; otherwise, such damages would become a penalty rather
than a compensation for actual injury suffered.32
Furthermore, well-settled is the rule that moral damages cannot be
awarded -- whether in a civil33 or a criminal case34 -- in the absence of
proof of physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social
humiliation, or similar injury.35 The award of moral damages must be
solidly anchored on a definite showing that
respondent actually experienced emotional and mental sufferings.
Mere allegations do not suffice; they must be substantiated by clear
and convincing proof.36
Third Issue:
Exemplary Damages
Petitioners argue that exemplary damages and attorney's fees are not
recoverable. Allegedly, the RTC and the CA "did not find that
petitioners were guilty of gross negligence in the performance of their
duty and responsibilities."37
Exemplary damages cannot be recovered as a matter of right.38 While
granting them is subject to the discretion of the court, they can be
awarded only after claimants have shown their entitlement to moral,
temperate or compensatory damages.39 In the case before us,
respondent sufficiently proved before the courts a quo that petitioners'
negligence was the proximate cause of the incident, thereby
establishing his right to actual or compensatory damages. He has
adduced adequate proof to justify his claim for the damages caused
his car. The question that remains, therefore, is whether exemplary
damages may be awarded in addition to compensatory damages.
Article 2231 of the Civil Code mandates that in cases of quasi-delicts,
exemplary damages may be recovered if the defendant acted with
gross negligence.40 Gross negligence means such utter want of care
as to raise a presumption that the persons at fault must have been
conscious of the probable consequences of their carelessness, and
that they must have nevertheless been indifferent (or worse) to the
danger of injury to the person or property of others. 41 The negligence
must amount to a reckless disregard for the safety of persons or
property. Such a circumstance obtains in the instant case.
A finding of gross negligence can be discerned from the Decisions of
both the CA and the trial court. We quote from the RTC Decision:
"Sad to state that the City Government through its instrumentalities
have (sic) failed to show the modicum of responsibility, much less, care
expected of them (sic) by the constituents of this City. It is even more
deplorable that it was a case of a street digging in a side street which
caused the accident in the so-called 'premier city.'"421avvphi1.zw+
The CA reiterated the finding of the trial court that petitioners'
negligence was clear, considering that there was no warning
device whatsoever43 at the excavation site.
The facts of the case show a complete disregard by petitioners of any
adverse consequence of their failure to install even a single warning
device at the area under renovation. Considering further that the street
was dimly lit,44 the need for adequate precautionary measures was
even greater. By carrying on the road diggings without any warning or
barricade, petitioners demonstrated a wanton disregard for public
safety. Indeed, the February 28, 1988 incident was bound to happen
due to their gross negligence. It is clear that under the circumstances,
there is sufficient factual basis for a finding of gross negligence on their
part.
Article 2229 of the Civil Code provides that exemplary damages may
be imposed by way of example or correction for the public good. The
award of these damages is meant to be a deterrent to socially
deleterious actions.45 Public policy requires such imposition to
suppress wanton acts of an offender.46 It must be emphasized that
local governments and their employees should be responsible not only
for the maintenance of roads and streets, but also for the safety of the
public. Thus, they must secure construction areas with adequate
precautionary measures.
Not only is the work of petitioners impressed with public interest; their
very existence is justified only by public service. Hence, local
governments have the paramount responsibility of keeping the
interests of the public foremost in their agenda. For these reasons, it is
most disturbing to note that the present petitioners are the very parties
responsible for endangering the public through such a rash and
reckless act.
WHEREFORE, the Petition is hereby PARTLY GRANTED. The
Decision of the Court of Appeals is AFFIRMED, with
the MODIFICATION that the award of moral damages
is DELETED. No costs. SO ORDERED.
G.R. No. 185891 June 26, 2013
CATHAY PACIFIC AIRWAYS, Petitioner,
vs.
JUANITA REYES, WILFREDO REYES, MICHAEL ROY REYES,
SIXTA LAPUZ, and SAMPAGUITA TRAVEL CORP., Respondents.
DECISION
PEREZ, J.:
Assailed in this petition for review are the Decision1 dated 22 October
2008 in CA-G.R. CV. No. 86156 and the 6 January 2009 Resolution2 in
the same case of the Court of Appeals.
This case started as a complaint for damages tiled by respondents
against Cathay Pacific Airways (Cathay Pacific) and Sampaguita
Travel Corp. (Sampaguita Travel), now joined as a respondent. The
factual backdrop leading to the filing of the complaint is as follows:
Sometime in March 1997, respondent Wilfredo Reyes (Wilfredo) made
a travel reservation with Sampaguita Travel for his family’s trip to
Adelaide, Australia scheduled from 12 April 1997 to 4 May 1997. Upon
booking and confirmation of their flight schedule, Wilfredo paid for the
airfare and was issued four (4) Cathay Pacific round-trip airplane
tickets for Manila-HongKong-Adelaide-HongKong-Manila with the
following record locators:
1âwphi1
Name of Passenger PNR OR RECORD LOCATOR NOS.3
Reyes, Wilfredo J76TH
Reyes, Juanita HDWC3
Reyes, Michael Roy H9VZF
Lapuz, Sixta HTFMG4
On 12 April 1997, Wilfredo, together with his wife Juanita Reyes
(Juanita), son Michael Roy Reyes (Michael) and mother-in-law Sixta
Lapuz (Sixta), flew to Adelaide, Australia without a hitch.
One week before they were scheduled to fly back home, Wilfredo
reconfirmed his family’s return flight with the Cathay Pacific office in
Adelaide. They were advised that the reservation was "still okay as
scheduled."
On the day of their scheduled departure from Adelaide, Wilfredo and
his family arrived at the airport on time. When the airport check-in
counter opened, Wilfredo was informed by a staff from Cathay Pacific
that the Reyeses did not have confirmed reservations, and only Sixta’s
flight booking was confirmed. Nevertheless, they were allowed to
board the flight to HongKong due to adamant pleas from Wilfredo.
When they arrived in HongKong, they were again informed of the same
problem. Unfortunately this time, the Reyeses were not allowed to
board because the flight to Manila was fully booked. Only Sixta was
allowed to proceed to Manila from HongKong. On the following day,
the Reyeses were finally allowed to board the next flight bound for
Manila.
Upon arriving in the Philippines, Wilfredo went to Sampaguita Travel to
report the incident. He was informed by Sampaguita Travel that it was
actually Cathay Pacific which cancelled their bookings.
On 16 June 1997, respondents as passengers, through counsel, sent a
letter to Cathay Pacific advising the latter of the incident and
demanding payment of damages.
After a series of exchanges and with no resolution in sight,
respondents filed a Complaint for damages against Cathay Pacific and
Sampaguita Travel and prayed for the following relief: a)
₱1,000,000.00 as moral damages; b) ₱300,000.00 as actual damages;
c) ₱100,000.00 as exemplary damages; and d) ₱100,000.00 as
attorney’s fees.5
In its Answer, Cathay Pacific alleged that based on its computerized
booking system, several and confusing bookings were purportedly
made under the names of respondents through two (2) travel agencies,
namely: Sampaguita Travel and Rajah Travel Corporation. Cathay
Pacific explained that only the following Passenger Name Records
(PNRs) appeared on its system: PNR No. H9V15, PNR No. HTFMG,
52 |TORTS AND DAMAGES
PNR No. J9R6E, PNR No. J76TH, and PNR No. H9VSE. Cathay
Pacific went on to detail each and every booking, to wit:
1. PNR No. H9V15
Agent: Sampaguita Travel Corp.
Party: Ms. J Reyes, Mr. M R Reyes, Mr. W Reyes
Itinerary: CX902/CX105 MNL/HKG/ADL 12 APR.
The itinerary listed above was confirmed booking. However, the
itinerary did not include booking for the return flights. From information
retrieved from ABACUS (the booking system used by agents), the
agent has, on 10 April, added segments CX104/CX905 ADL/HKG/MNL
04 MAY on MK status, which was not a confirmed booking. MK
function is used for synchronizing records or for ticketing purposes
only. It does not purport to be a real booking. As a result, no booking
was transmitted into CPA’s system.
2. PNR No. HTFMG
Agent: Sampaguita Travel Corp.
Party: Mrs. Sixta Lapuz
Itinerary: CX902/CX105 MNL/HKG/ADL 12 APR, CX104/CX907
ADL/HKG/MNL 04/05 MAY.
The above itinerary is the actual itinerary that the passenger has flown.
However, for the return sector, HKG/MNL, the original booking was on
CX905 of 04 May. This original booking was confirmed on 21 Mar. and
ticketed on 11 Apr.
This booking was cancelled on 04 May at 9:03 p.m. when CX905 was
almost scheduled to leave at the behest of the passenger and she was
re-booked on CX907 of 05 May at the same time.
3. PNR No. J9R6E
Agent: Rajah Travel Corp.
Party: Mrs. Julieta Gaspar, Mrs. Sixta Lapuz, Mrs. Juanita Reyes,
Mr. Michael Roy Reyes, Mr. Wilfredo Reyes.
Itinerary: CX900 & CX902 MNL/HKG 12 APR, CX105 HKG/ADL 12
APR, CX104/CX905 ADL/HKG/MNL 04 MAY & 07 MAY
The party was confirmed initially on CX900/12 Apr, CX105/12 Apr,
CX104/CX9095 07 May and on waiting list for CX902/12 Apr,
CX104/CX905 04 May.
However, on 31 Mar., the booking was cancelled by the agent.
4. PNR No. J76TH
Agent: Sampaguita Travel Corp.
Party: Mr. W Reyes
Itinerary: CX104/CX905 ADL/HKG/MNL 04 MAY.
The booking on the above itinerary was confirmed initially. When the
agent was asked for the ticket number as the flight CX905 04 May was
very critical, the agent has inputted the ticket number on 10 Apr. but
has removed the record on 11 April. Since the booking was reflected
as not ticketed, the booking was cancelled on 18 Apr. accordingly.
This PNR was split from another PNR record, H9VSE.
5. PNR No. H9VSE
Agent: Sampaguita Travel Corp.
Party: Ms. R Lapuz, Mr. R Lapuz, Mr. A Samson, originally Mr. W
Reyes was included in this party as well
Itinerary: CX104/CX905 ADL/HKG/MNL 04 MAY.
The booking was confirmed initially but were not ticketed by 11 Apr.
and was cancelled accordingly. However, the PNR of Mr. W Reyes
who was originally included in this party was split to a separate record
of J76TH.6
Cathay Pacific asserted that in the case of Wilfredo with PNR No.
J76TH, no valid ticket number was inputted within a prescribed period
which means that no ticket was sold. Thus, Cathay Pacific had the
right to cancel the booking. Cathay Pacific found that Sampaguita
Travel initially inputted a ticket number for PNR No. J76TH and had it
cancelled the following day, while the PNR Nos. HDWC3 and HTFMG
of Juanita and Michael do not exist.
The Answer also contained a cross-claim against Sampaguita Travel
and blamed the same for the cancellation of respondents’ return flights.
Cathay Pacific likewise counterclaimed for payment of attorney’s fees.
On the other hand, Sampaguita Travel, in its Answer, denied Cathay
Pacific’s claim that it was the cause of the cancellation of the bookings.
Sampaguita Travel maintained that it made the necessary reservation
with Cathay Pacific for respondents’ trip to Adelaide. After getting
confirmed bookings with Cathay Pacific, Sampaguita Travel issued the
corresponding tickets to respondents. Their confirmed bookings were
covered with the following PNRs:
PASSENGER NAME PNR No.
Lapuz, Sixta H9V15/ J76TH
Reyes, Wilfredo H9V15/HDWC3
Reyes, Michael Roy H9V15/H9VZF
Reyes, Juanita HTFMG7
Sampaguita Travel explained that the Reyeses had two (2) PNRs each
because confirmation from Cathay Pacific was made one flight
segment at a time. Sampaguita Travel asserted that it only issued the
tickets after Cathay Pacific confirmed the bookings. Furthermore,
Sampaguita Travel exonerated itself from liability for damages because
respondents were claiming for damages arising from a breach of
contract of carriage. Sampaguita Travel likewise filed a cross-claim
against Cathay Pacific and a counterclaim for damages.
During the pre-trial, the parties agreed on the following stipulation of
facts:
1. That the plaintiffs did not deal directly with Cathay Pacific Airways;
2. That the plaintiffs did not make their bookings directly with Cathay
Pacific Airways;
3. That the plaintiffs did not purchase and did not get their tickets from
Cathay Pacific Airways;
4. That Cathay Pacific Airways has promptly replied to all
communications sent by the plaintiffs through their counsel;
5. That the plane tickets issued to plaintiffs were valid, which is why
they were able to depart from Manila to Adelaide, Australia and that
the reason why they were not able to board their return flight from
Adelaide was because of the alleged cancellation of their booking by
Cathay Pacific Airways at Adelaide, save for that of Sixta Lapuz whose
booking was confirmed by Cathay Pacific Airways;
6. That several reservations and bookings for the plaintiffs were done
by defendant Sampaguita Travel Corporation through the computer
reservation system and each of such request was issued a PNR;
7. That, as a travel agent, defendant Sampaguita Travel Corporation
merely acts as a booking/sales/ticketing arm for airline companies and
it has nothing to do with the airline operations;
8. That in the travel industry, the practice of reconfirmation of return
flights by passengers is coursed or done directly with the airline
company and not with the travel agent, which has no participation,
control or authority in making such reconfirmations.
9. That in the travel industry, the practice of cancellation of flights is
within the control of the airline and not of the travel agent, unless the
travel agent is requested by the passengers to make such
cancellations; and,
10. That defendant Cathay Pacific Airways has advertised that "there is
no need to confirm your flight when travelling with us", although Cathay
Pacific Airways qualifies the same to the effect that in some cases
there is a need for reconfirmations.8
After trial on the merits, the Regional Trial Court (RTC) rendered a
Decision,9 the dispositive part of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the defendants and against the herein plaintiff. Accordingly,
plaintiffs’ complaint is hereby ordered DISMISSED for lack of merit.
Defendants’ counterclaims and cross-claims are similarly ordered
dismissed for lack of merit. No pronouncement as to cost.10
The trial court found that respondents were in possession of valid
tickets but did not have confirmed reservations for their return trip to
Manila. Additionally, the trial court observed that the several PNRs
opened by Sampaguita Travel created confusion in the bookings. The
trial court however did not find any basis to establish liability on the
part of either Cathay Pacific or Sampaguita Travel considering that the
cancellation was not without any justified reason. Finally, the trial court
denied the claims for damages for being unsubstantiated.
Respondents appealed to the Court of Appeals. On 22 October 2008,
the Court of Appeals ordered Cathay Pacific to pay ₱25,000.00 each to
respondents as nominal damages.
Upon denial of their motion for reconsideration, Cathay Pacific filed the
instant petition for review assigning the following as errors committed
by the Court of Appeals:
A.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
CLEAR AND REVERSIBLE ERROR IN HOLDING THAT CATHAY
PACIFIC AIRWAYS IS LIABLE FOR NOMINAL DAMAGES FOR ITS
ALLEGED INITIAL BREACH OF CONTRACT WITH THE
PASSENGERS EVEN THOUGH CATHAY PACIFIC AIRWAYS WAS
ABLE TO PROVE BEYOND REASONABLE DOUBT THAT IT WAS
NOT AT FAULT FOR THE PREDICAMENT OF THE RESPONDENT
PASSENGERS.
B.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
CLEAR AND REVERSIBLE ERROR IN RELYING ON MATTERS NOT
PROVED DURING THE TRIAL AND NOT SUPPORTED BY THE
EVIDENCE AS BASIS FOR HOLDING CATHAY PACIFIC AIRWAYS
LIABLE FOR NOMINAL DAMAGES.
C.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
CLEAR AND REVERSIBLE ERROR IN HOLDING CATHAY PACIFIC
AIRWAYS LIABLE FOR NOMINAL DAMAGES TO RESPONDENT
SIXTA LAPUZ.
D.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
CLEAR AND REVERSIBLE ERROR IN NOT HOLDING
SAMPAGUITA TRAVEL CORP. LIABLE TO CATHAY PACIFIC
AIRWAYS FOR WHATEVER DAMAGES THAT THE AIRLINE
COMPANY WOULD BE ADJUDGED THE RESPONDENT
PASSENGERS.
E.ALTERNATIVELY, WHETHER OR NOT THE COURT OF APPEALS
COMMITTED A CLEAR AND REVERSIBLE ERROR WHEN IT
FAILED TO APPLY THE DOCTRINE OF STARE DECISIS IN FIXING
THE AMOUNT OF NOMINAL DAMAGES TO BE AWARDED.11
Cathay Pacific assails the award of nominal damages in favor of
respondents on the ground that its action of cancelling the flight
bookings was justifiable. Cathay Pacific reveals that upon
investigation, the respondents had no confirmed bookings for their
return flights. Hence, it was not obligated to transport the respondents.
In fact, Cathay Pacific adds, it exhibited good faith in accommodating
the respondents despite holding unconfirmed bookings.
Cathay Pacific also scores the Court of Appeals in basing the award of
nominal damages on the alleged asthmatic condition of passenger
Michael and old age of Sixta. Cathay Pacific points out that the
records, including the testimonies of the witnesses, did not make any
mention of Michael’s asthma. And Sixta was in fact holding a
53 |TORTS AND DAMAGES
confirmed booking but she refused to take her confirmed seat and
instead stayed in HongKong with the other respondents.
Cathay Pacific blames Sampaguita Travel for negligence in not
ensuring that respondents had confirmed bookings for their return trips.
Lastly, assuming arguendo that the award of nominal damages is
proper, Cathay Pacific contends that the amount should be reduced to
₱5,000.00 for each passenger.
At the outset, it bears pointing out that respondent Sixta had no cause
of action against Cathay Pacific or Sampaguita Travel. The elements
of a cause of action consist of: (1) a right existing in favor of the
plaintiff, (2) a duty on the part of the defendant to respect the plaintiff’s
right, and (3) an act or omission of the defendant in violation of such
right.12 As culled from the records, there has been no violation of any
right or breach of any duty on the part of Cathay Pacific and
Sampaguita Travel. As a holder of a valid booking, Sixta had the right
to expect that she would fly on the flight and on the date specified on
her airplane ticket. Cathay Pacific met her expectations and Sixta was
indeed able to complete her flight without any trouble. The absence of
any violation to Sixta’s right as passenger effectively deprived her of
any relief against either Cathay Pacific or Sampaguita Travel.
With respect to the three remaining respondents, we rule as follows:
The determination of whether or not the award of damages is correct
depends on the nature of the respondents’ contractual relations with
Cathay Pacific and Sampaguita Travel. It is beyond dispute that
respondents were holders of Cathay Pacific airplane tickets and they
made the booking through Sampaguita Travel.
Respondents’ cause of action against Cathay Pacific stemmed from a
breach of contract of carriage. A contract of carriage is defined as one
whereby a certain person or association of persons obligate
themselves to transport persons, things, or news from one place to
another for a fixed price.13 Under Article 1732 of the Civil Code, this
"persons, corporations, firms, or associations engaged in the business
of carrying or transporting passengers or goods or both, by land, water,
or air, for compensation, offering their services to the public" is called a
common carrier.
Respondents entered into a contract of carriage with Cathay Pacific.
As far as respondents are concerned, they were holding valid and
confirmed airplane tickets. The ticket in itself is a valid written contract
of carriage whereby for a consideration, Cathay Pacific undertook to
carry respondents in its airplane for a round-trip flight from Manila to
Adelaide, Australia and then back to Manila. In fact, Wilfredo called the
Cathay Pacific office in Adelaide one week before his return flight to re-
confirm his booking. He was even assured by a staff of Cathay Pacific
that he does not need to reconfirm his booking.
In its defense, Cathay Pacific posits that Wilfredo’s booking was
cancelled because a ticket number was not inputted by Sampaguita
Travel, while bookings of Juanita and Michael were not honored for
being fictitious. Cathay Pacific clearly blames Sampaguita Travel for
not finalizing the bookings for the respondents’ return flights.
Respondents are not privy to whatever misunderstanding and
confusion that may have transpired in their bookings. On its face, the
airplane ticket is a valid written contract of carriage. This Court has
held that when an airline issues a ticket to a passenger confirmed on a
particular flight, on a certain date, a contract of carriage arises, and the
passenger has every right to expect that he would fly on that flight and
on that date. If he does not, then the carrier opens itself to a suit for
breach of contract of carriage.14
As further elucidated by the Court of Appeals:
Now, Article 1370 of the Civil Code mandates that "if the terms of a
contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control."
Under Section 9, Rule 130 of the Rules of Court, once the terms of an
agreement have been reduced to writing, it is deemed to contain all the
terms agreed upon by the parties and no evidence of such terms other
than the contents of the written agreement shall be admissible. The
terms of the agreement of appellants and appellee Cathay Pacific
embodied in the tickets issued by the latter to the former are plain –
appellee Cathay Pacific will transport appellants to Adelaide, Australia
from Manila via Hongkong on 12 April 1991 and back to Manila from
Adelaide, Australia also via Hongkong on 4 May 1997. In addition, the
tickets reveal that all appellants have confirmed bookings for their flight
to Adelaide, Australia and back to Manila as manifested by the words
"Ok" indicated therein. Arlene Ansay, appellee Cathay Pacific’s
Reservation Supervisor, validated this fact in her testimony saying that
the return flights of all appellants to the Philippines on 4 May 1997
were confirmed as appearing on the tickets. Indubitably, when appellee
Cathay Pacific initially refused to transport appellants to the Philippines
on 4 May 1997 due to the latter’s lack of reservation, it has, in effect,
breached their contract of carriage. Appellants, however, were
eventually accommodated and transported by appellee Cathay Pacific
to Manila.15
Cathay Pacific breached its contract of carriage with respondents when
it disallowed them to board the plane in Hong Kong going to Manila on
the date reflected on their tickets. Thus, Cathay Pacific opened itself to
claims for compensatory, actual, moral and exemplary damages,
attorney’s fees and costs of suit.
In contrast, the contractual relation between Sampaguita Travel and
respondents is a contract for services. The object of the contract is
arranging and facilitating the latter’s booking and ticketing. It was even
Sampaguita Travel which issued the tickets.
Since the contract between the parties is an ordinary one for services,
the standard of care required of respondent is that of a good father of a
family under Article 1173 of the Civil Code. This connotes reasonable
care consistent with that which an ordinarily prudent person would
have observed when confronted with a similar situation. The test to
determine whether negligence attended the performance of an
obligation is: 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.16
There was indeed failure on the part of Sampaguita Travel to exercise
due diligence in performing its obligations under the contract of
services. It was established by Cathay Pacific, through the generation
of the PNRs, that Sampaguita Travel failed to input the correct ticket
number for Wilfredo’s ticket. Cathay Pacific even asserted that
Sampaguita Travel made two fictitious bookings for Juanita and
Michael.
The negligence of Sampaguita Travel renders it also liable for
damages.
For one to be entitled to actual damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and the best evidence obtainable by the injured
party. To justify an award of actual damages, there must be competent
proof of the actual amount of loss. Credence can be given only to
claims which are duly supported by receipts.17
We echo the findings of the trial court that respondents failed to show
proof of actual damages. Wilfredo initially testified that he personally
incurred losses amounting to ₱300,000.00 which represents the
amount of the contract that he was supposedly scheduled to sign had
his return trip not been cancelled. During the cross-examination
however, it appears that the supposed contract-signing was a mere
formality and that an agreement had already been hatched
beforehand. Hence, we cannot fathom how said contract did not
materialize because of Wilfredo’s absence, and how Wilfredo incurred
such losses when he himself admitted that he entered into said
contract on behalf of Parsons Engineering Consulting Firm, where he
worked as construction manager. Thus, if indeed there were losses,
these were losses suffered by the company and not by Wilfredo.
Moreover, he did not present any documentary evidence, such as the
actual contract or affidavits from any of the parties to said contract, to
substantiate his claim of losses. With respect to the remaining
passengers, they likewise failed to present proof of the actual losses
they suffered.
Under Article 2220 of the Civil Code of the Philippines, an award of
moral damages, in breaches of contract, is in order upon a showing
that the defendant acted fraudulently or in bad faith.18 What the law
considers as bad faith which may furnish the ground for an award of
moral damages would be bad faith in securing the contract and in the
execution thereof, as well as in the enforcement of its terms, or any
other kind of deceit. In the same vein, to warrant the award of
exemplary damages, defendant must have acted in wanton, fraudulent,
reckless, oppressive, or malevolent manner.19
In the instant case, it was proven by Cathay Pacific that first, it
extended all possible accommodations to respondents.1âwphi1 They
were promptly informed of the problem in their bookings while they
were still at the Adelaide airport. Despite the non-confirmation of their
bookings, respondents were still allowed to board the Adelaide to Hong
Kong flight. Upon arriving in Hong Kong, they were again informed that
they could not be accommodated on the next flight because it was
already fully booked. They were however allowed to board the next
available flight on the following day. Second, upon receiving the
complaint letter of respondents, Cathay Pacific immediately addressed
the complaint and gave an explanation on the cancellation of their flight
bookings.
The Court of Appeals is correct in stating that "what may be attributed
to x x x Cathay Pacific is negligence concerning the lapses in their
process of confirming passenger bookings and reservations, done
through travel agencies. But this negligence is not so gross so as to
amount to bad faith."20 Cathay Pacific was not motivated by malice or
bad faith in not allowing respondents to board on their return flight to
Manila. It is evident and was in fact proven by Cathay Pacific that its
refusal to honor the return flight bookings of respondents was due to
the cancellation of one booking and the two other bookings were not
reflected on its computerized booking system.
Likewise, Sampaguita Travel cannot be held liable for moral damages.
True, Sampaguita Travel was negligent in the conduct of its booking
and ticketing which resulted in the cancellation of flights. But its actions
were not proven to have been tainted with malice or bad faith. Under
these circumstances, respondents are not entitled to moral and
exemplary damages. With respect to attorney’s fees, we uphold the
appellate court’s finding on lack of factual and legal justification to
award attorney’s fees.
We however sustain the award of nominal damages in the amount of
₱25,000.00 to only three of the four respondents who were aggrieved
by the last-minute cancellation of their flights. Nominal damages are
recoverable where a legal right is technically violated and must be
vindicated against an invasion that has produced no actual present
loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be
54 |TORTS AND DAMAGES
shown.21 Under Article 2221 of the Civil Code, nominal damages may
be awarded to a plaintiff whose right has been violated or invaded by
the defendant, for the purpose of vindicating or recognizing that right,
not for indemnifying the plaintiff for any loss suffered.
Considering that the three respondents were denied boarding their
return flight from HongKong to Manila and that they had to wait in the
airport overnight for their return flight, they are deemed to have
technically suffered injury. Nonetheless, they failed to present proof of
actual damages. Consequently, they should be compensated in the
form of nominal damages.
The amount to be awarded as nominal damages shall be equal or at
least commensurate to the injury sustained by respondents
considering the concept and purpose of such damages. The amount of
nominal damages to be awarded may also depend on certain special
reasons extant in the case.22
The amount of such damages is addressed to the sound discretion of
the court and taking into account the relevant circumstances, 23 such as
the failure of some respondents to board the flight on schedule and the
slight breach in the legal obligations of the airline company to comply
with the terms of the contract, i.e., the airplane ticket and of the travel
agency to make the correct bookings. We find the award of ₱25,000.00
to the Reyeses correct and proper.
Cathay Pacific and Sampaguita Travel acted together in creating the
confusion in the bookings which led to the erroneous cancellation of
respondents’ bookings. Their negligence is the proximate cause of the
technical injury sustained by respondents. Therefore, they have
become joint tortfeasors, whose responsibility for quasi-delict, under
Article 2194 of the Civil Code, is solidary.
Based on the foregoing, Cathay Pacific and Sampaguita Travel are
jointly and solidarily liable for nominal damages awarded to
respondents Wilfredo, Juanita and Michael Roy.
WHEREFORE, the Petition is DENIED. The 22 October 2008 Decision
of the Court of Appeals is AFFIRMED with MODIFICATION that
Sampaguita Travel is held to be solidarily liable with Cathay Pacific in
the payment of nominal damages of ~25,000.00 each for Wilfredo
Reyes, Juanita Reyes, and Michael Rox Reyes. The complaint of
respondent Sixta
Lapuz is DISMISSED for lack of cause of action.
SO ORDERED.
G.R. No. 206184
SPOUSES ED DANTE LATONIO AND MARY ANN LATONIO and
the minor ED CHRISTIAN LATONIO, Petitioners
vs.
MCGEORGE FOOD INDUSTRIES INC., CEBU GOLDEN FOODS
INDUSTRIES, INC., and TYKE PHILIP LOMIBAO, Respondents
PERALTA, J.:
Before this Court is a petition for review1 via Rule 45 of the Rules of
Court assailing the Decision2 dated September 28, 2012 and
Resolution3 dated January 31, 2013 of the Court of
Appeals (CA), Cebu City in CA-G.R. CV No. 03079, which reversed
4
and set aside the Decision of the Regional Trial Court (RTC) Branch
22, Cebu City and denied the motion for reconsideration, respectively.
The facts are as follows:
On September 17, 2000, the petitioners, spouses Ed Dante (Ed) and
Mary Ann Latonio (Mary Ann); accompanied their eight-month-old child
Ed Christian to a birthday party at the McDonald's Restaurant, Ayala
Center, Cebu City.
During the party and as part of the birthday package, McDonald's
presented two mascots – "Birdie" and "Grimace" - to entertain and
dance for the guests. Respondent Tyke Philip
Lomibao (Lomibao )5 was the person inside the "Birdie" mascot suit.
After the mascots danced, guests had their pictures taken with them.
Intending to have her child's photo taken with the mascots, Mary Ann
placed Ed Christian on a chair in front of the mascot "Birdie." The
mascot positioned itself behind the child and extended its "wings" to
give a good pose for the camera.
As photos were about to be taken, Mary Ann released her hold of Ed
Christian. Seconds later, the child fell head first from the chair onto the
floor.
Several guests attended to Ed Christian. Meanwhile, the employees of
respondent McDonald’s Cebu Golden Food6 (Cebu Golden
Food) assisted petitioners in giving first aid treatment to Ed Christian.
Petitioners, nevertheless, remained and continued with the party and
left only after the party was over.
At about 9:30 in the evening of the same day, Mary Ann called up
Cebu Golden Food to inform them that their doctor advised them to get
an x-ray examination on Ed Christian. Cebu Golden Food then assured
her that they were willing to shoulder the expenses for the x-ray
examination of Ed Christian. Later, McDonald’s reimbursed Mary Ann
for the expenses incurred relative to the x-ray examination. It further
offered to pay the expenses for the CT scan to be conducted on Ed
Christian.
For some time, nothing was heard from petitioners. Nonetheless, a
staff of Cebu Golden Food visited the Latonios in their residence to
follow up the results of the CT scan test. The staff was met by the
brother of Mary Ann, who allegedly repeatedly shouted at them saying
that they would file a case against Cebu Golden Food. Thus, Cebu
Golden Food reported the incident to their licensor, McGeorge Food
Industries, Inc.
Sometime in October 2000, McGeorge received a Letter from the
lawyer of the Latonios regarding the September 17, 2000 incident. In
its reply, McGeorge immediately assured the Latonios that the health
and safety of all McDonald's customers is its utmost concern and that
the best medical and hospital care would be made available to Ed
Christian.
McGeorge also sent its Field Service Director, together with its lawyer,
to meet with the Latonios and their lawyers to assure them that
McDonald's was ready to assist in whatever medical attention would be
required of Ed Christian.
During the meeting, McGeorge agreed to contact a neurologist for
consultation to ensure Ed Christian’s health. McGeorge conferred and
consulted with two neurosurgeons at the St. Luke's Medical Center and
the Makati Medical Center, who both recommended to first study the x-
ray results and CT scan to determine the extent of the injury sustained
by the baby.
Thereafter, McGeorge relayed the doctor’s requirement to the Latonios
who initially agreed to give McGeorge copies of the x-ray and CT scan
results. However, the Latonios had a change of heart and informed
McGeorge that they had decided against lending them the x-ray and
CT scan results and other related medical records.
Instead, the Latonios sent a Letter to McGeorge demanding for
compensation in the amount of Fifteen Million Pesos (₱15,000,000.00).
As their demand remained unheeded, the Latonios caused the
publication of the accident in the local newspaper, Sun Star Cebu on
February 8, 2001 with a headline "Food outlet sued for ₱.9 M
damages". Simultaneously, the Latonios also instituted a complaint for
damages and attorney's fees against McGeorge.
On March 3, 2009, the RTC, in Civil Case No. CEB-26126, issued a
Decision,7 the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs and against defendants Tyke Philip Lomibao and
Cebu Golden Foods, Inc., finding defendant Tyke Philip Lomibao liable
for acts of negligence causing the fall of baby Ed Christian Latonio and
correspondingly, finding defendant Cebu Golden Foods, Inc. liable
solidarily with defendant Tyke Philip Lomibao, pursuant to Article 2180
of the New Civil Code inasmuch as defendant Cebu Golden Foods,
Inc. was the employer of defendant Tyke Philip Lomibao.
Accordingly, defendants Tyke Philip Lomibao and Cebu Golden Foods,
Incorporated, are hereby ordered to pay to the plaintiffs the following:
1. ₱900,000.00 as Moral Damages;
2. ₱50,000.00 as Exemplary Damages, and
3. ₱300,000.00 as Attorney's fees.
The case against defendant McGeorge Food Industries Inc., is hereby
dismissed for lack of evidence. SO ORDERED.
Aggrieved, Cebu Golden Food and Lomibao filed an appeal before the
Court of Appeals-Cebu City.
On September 28, 2012, in its assailed Decision, the Court of Appeals
reversed the trial court's decision and said that the trial court
overlooked substantial facts and circumstances which, if properly
considered, would justify a different conclusion and alter the results of
the case. The dispositive portion of the decision reads, thus:
WHEREFORE, the appeal is GRANTED. The Decision dated 03 March
2009 of the Regional Trial Court, Branch 22, Cebu City
is REVERSED and SET ASIDE. Civil Case No. CEB-26126
is DISMISSED for lack of merit. The compulsory counterclaims of
defendants-appellants are DENIED. No costs.
SO ORDERED.8
Thus, the instant petition for review under Rule 45 of the Rules of Court
brought before this Court raising the sole issue of: Whether the Court
of Appeals erred in ruling that the proximate cause of Ed Christian’s fall
was the negligence of petitioner Mary Ann Latonia. 9
The trial court held Cebu Golden Food is liable because the proximate
cause of Ed Christian’s fall is the negligence of their employee,
Lomibao. On the other hand, the Court of Appeals reversed the trial
court's decision and held that Ed Christian’s mother, Mary Ann, is liable
because the proximate cause of the child's fall was Mary Ann's act of
leaving her eightmonth- old child, Ed Christian, in the "hands" of
Lomibao who was at the time wearing the Birdie mascot costume.
We find no merit on this instant petition.
The principle is well-established that this Court is not a trier of facts.
Therefore, in an appeal by certiorari under Rule 45 of the Rules of
Court, only questions of law may be raised. The resolution of factual
issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this
Court.10
However, this rule is subject to certain exceptions. One of these is
when the findings of the appellate court are contrary to those of the
trial court.11 It is also settled that the appellate courts will not as a
general rule disturb the findings of the trial court, which is in a better
position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the
deportment of the witnesses. Nevertheless, the rule admits of
exceptions such as when its evaluation was reached arbitrarily, or it
overlooked or failed to appreciate some facts or circumstances of
55 |TORTS AND DAMAGES
weight and substance which could affect the result of the case, 12 as
what happened in the instant case.
In the instant case, there is no dispute that petitioners suffered
damages because of Ed Christian's fall. However, as to the issues on
negligence and proximate cause, the Court of Appeals and the trial
court gave contradicting findings.
As the action is predicated on negligence, the relevant law is Article
2176 of the Civil Code, which states that-
Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there was no pre-existing contractual relation between
the parties, is called quasi-delict and is governed by the provisions of
this chapter.
The trial court held that the proximate cause of Ed Christian's fall and
the resulting injury was Lomibao’s act of holding the baby during the
party which was purportedly prohibited under the rules and policy of
the establishment.
We disagree.
Indeed, the testimony of Mary Ann herself on cross-examination is
telling. Thus:
xxxx
Q. And when you said that you informed the mascot, what exact words
did you use?
A. I tap (sic) him on his side and then I called him that I am going to
have the taking of pictures with my baby.
xxxx
Q. Now did you wait for the mascots to make a reply?
A. He was looking at me and he look (sic) at my face.
Q. Did he make a reply?
A. No, Ma’am.
Q. Did you see his eyes looking at you?
A. No, Ma’am.
x x x.13
ATTY. ABELLA
xxxx
Q. And at the time you already observed that the person was wearing a
thick leather suit?
A. Yes.
Q. Did you actually see the body of the person who lift (sic) your baby
then?
A. No.
Q. Did you see the hands inside the costume?
A. Of course, I cannot see the hands.
Q. Did you see the arms of the person inside the mascot?
A. I cannot because he is (sic) wearing a costume.14
COURT
Q. You were not sure that when you handed the baby it was firmly held
by the mascot?
A. I placed the baby in front of the mascot.
Q. You were not aware about the hands when you turned over the
baby because it was a mascot?
A. I was sure because I can feel the hands and my baby was standing
in front of him; and he is doing like this (witness demonstrating).15
ATTY. ABELLA
Q. Did you see the eyes of the person inside the mascot costume?
A. No.
Q. Were you aware if there were openings for the eyes of the person
inside the mascot?
A. Yes, I was aware.
Q. The eyesin this mascot costume actually had no opening?
A. Yes, no opening.16
COURT
Q. You entrusted the baby even if there was no opening of the eyes?
A. There was an opening of the costume near the mouth. If the mascot
cannot see, then how can he play with the kids?
Q. You said that you told the mascot that you were leaving the baby to
him?
A. Ipat (sic) him.
Q. Did you see the ears of the person inside the mascot?
A. No.
Q. Did you even know if there was an opening for the ears at the
person wearing the mascot costume?
A. No, but I was nearer the mascot.
x x x.17
We agree with the appellate court that despite Mary Ann’s insistence
that she made sure that her baby was safe and secured before she
released her grasp on Ed Christian, her own testimony revealed that
she had, in fact, acted negligently and carelessly, to wit:
Q. Now when you said that you made sure that the mascot was holding
your baby, what action did you do to insure that?
A. When I saw that the mascot was holding my baby so I make (sic) a
motion to my husband for the picture taking so I left beside. I backed
off a little bit.
x x x x.
Q. I will not risk my baby if I am not sure that the mascot was not
inserting his hands over my baby when I left the scene. The (sic) I am
sure that the baby was already safe in the hands of the mascot.
Q. When you say that you make (sic) sure you just relied on your
sight?
A. Yes, ma'am.18
xxxx
Q: Did you check what part of your child's body was in contact in any
part of the mascot’s body?
A: Partly it was here on the waist of the child until (sic) the armpit.
Q: Now you said that you move (sic) further to the side from where
your baby was standing, is that your testimony?
A: Yes, ma’am.
Q: Can you tell us or can you give us any reason why you move (sic) to
the side?
A: Because I motioned my husband already that he would take a
picture of the baby and the mascot before I left and I am so sure that
the baby is securely (sic) with the mascot holding the baby.19
xxxx
Q. And your child at that time was eight (8) months old?
A: Yes, ma’am.
Q: He cannot stand on his own?
A: He can stand but he has to have support.
Q: He cannot walk on his own at that time?
A: At that time with support."
x x x.20
More telling is the ratiocination of the Court of Appeals, which we quote
with approval:
Indeed, it is irresponsible for a mother to entrust the safety, even
momentarily, of her eight-month-old child to a mascot, not to mention a
bird mascot in thick leather suit that had no arms to hold the child and
whose diminished ability to see, hear, feel, and move freely was readily
apparent. Moreover, by merely tapping the mascot and saying
"papicture ta", Mary Ann Latonio cannot be said to have "told, informed
and instructed the mascot that she was letting the mascot hold the
baby momentarily." Releasing her grasp of the baby without waiting for
any indication that the mascot heard and understood her is just plain
negligence on the part of Mary Ann.
To Our mind, what is more in accord with human experience and
dictates of reason is that a diligent mother would naturally ensure first
and foremost the safety of her child before releasing her hold on him.
Such is not the case here. Mary Ann Latonio, in placing Ed Christian
on a chair and expecting a bird mascot to ensure the child's safety,
utterly failed to observe the degree of diligence expected of her as a
mother of an eight-month- old baby.21
Clearly, based on the foregoing, Mary Ann’s negligence was the
proximate cause of Ed Christian’s fall which caused him injury.
Proximate cause is defined as –
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. And more comprehensively, the
proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom.22
Here, it is beyond dispute that the cause of Ed Christian’s fall is
traceable to the negligent act of Mary Ann of leaving him in the "hands"
of Lomibao who was wearing the Birdie mascot suit. We noted that
"hands" and "wings" were used interchangeably during the testimonies
of the witnesses, thus, causing confusion. However, it must be
stressed that while indeed Lomibao has hands of his own, at the time
of the incident he was wearing the Birdie mascot suit. Suffice it to say
that the Birdie mascot suit have no hands but instead have wings.
Lomibao cannot possibly hold or grasp anything while wearing the
thick Birdie mascot suit. In fact, even if he wanted to hold Ed Christian
or anything, he could not possibly do so because he was wearing the
Birdie mascot suit which do not even have hands or fingers to be able
to hold or grasp firmly.
Notably, while the CA and the trial court made conflicting rulings on the
negligence of Cebu Golden Food and Lomibao, they, however, concur
on Mary Ann's own negligence. The trial court's summation of Mary
Ann's own negligence is as follows:
xxxx
A review of their testimonies would reveal that although we ascribe
negligence of defendant Lomibao we, likewise, unraveled that plaintiff
herself was not entirely blameless. Therefore, plaintiff Mary Ann
Latonio was likewise negligent. Why was she negligent can be traced
to the fact as established that she left her eight-month-old baby on top
of a chair to the temporary custody of a mascot. Even if the baby was
only left for a few seconds or minutes that could already spell a
disaster, in fact, it really happened. The baby fell from the chair and
went straight into the floor head first. Even if she already informed and
told the mascot that she was leaving the baby to his hold she should
not have let go of her grip because as a mother she ought to exercise
the commensurate prudence and case.
x x x."23
Thus, all the aforementioned circumstances lead us to no other
conclusion than that the proximate cause of the injury sustained by Ed
Christian was due to Mary Ann's own negligence.
All told, in the absence of negligence on the part of respondents Cebu
Golden Foods and Lomibao, as well as their management and staff,
they cannot be made liable to pay for the damages prayed for by the
petitioners.
56 |TORTS AND DAMAGES
To warrant the recovery of damages, there must be both a right of
action for a legal wrong inflicted by the defendant, and damage
resulting to the plaintiff therefrom.1âwphi1 Wrong without damage, or
damage without wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for the injury caused
by a breach or wrong.24
Many accidents occur and many injuries are inflicted by acts or
omissions which cause damage or loss to another but which violate no
legal duty to such other person, and consequently create no cause of
action in his favor. In such cases, the consequences must be borne by
the injured person alone. The law affords no remedy resulting from an
act which does not amount to a legal injury or wrong. 25
WHEREFORE, premises considered, the Decision dated September
28, 2012 and Resolution dated January 31, 2013 of the Court of
Appeals in CA-G.R. CV No. 03079 are hereby AFFIRMED.
SO ORDERED.

57 |TORTS AND DAMAGES