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EN BANC The question presented for decision is whether or not the defendant in

G.R. No. L-12219 March 15, 1918 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
AMADO PICART, plaintiff-appellant, opinion that he is so liable. As the defendant started across the bridge, he had
vs. the right to assume that the horse and the rider would pass over to the proper
FRANK SMITH, JR., defendant-appellee. 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
Alejo Mabanag for appellant. was too late for the horse to cross with safety in front of the moving vehicle. In
G. E. Campbell for appellee. 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
STREET, J.: of the plaintiff to escape being run down by going to a place of greater safety.
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, The control of the situation had then passed entirely to the defendant; and it was
Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by his duty either to bring his car to an immediate stop or, seeing that there were no
an automobile driven by the defendant. From a judgment of the Court of First other persons on the bridge, to take the other side and pass sufficiently far away
Instance of the Province of La Union absolving the defendant from liability the from the horse to avoid the danger of collision. Instead of doing this, the
plaintiff has appealed. 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.
The occurrence which gave rise to the institution of this action took place on But in view of the known nature of horses, there was an appreciable risk that, if
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears the animal in question was unacquainted with automobiles, he might get exited
that upon the occasion in question the plaintiff was riding on his pony over said and jump under the conditions which here confronted him. When the defendant
bridge. Before he had gotten half way across, the defendant approached from the exposed the horse and rider to this danger he was, in our opinion, negligent in the
opposite direction in an automobile, going at the rate of about ten or twelve eye of the law.
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 The test by which to determine the existence of negligence in a particular case
he had taken the bridge he gave two more successive blasts, as it appeared to him may be stated as follows: Did the defendant in doing the alleged negligent act use
that the man on horseback before him was not observing the rule of the road. 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
The plaintiff, it appears, saw the automobile coming and heard the warning by the imaginary conduct of the discreet paterfamilias of the Roman law. The
signals. However, being perturbed by the novelty of the apparition or the rapidity existence of negligence in a given case is not determined by reference to the
of the approach, he pulled the pony closely up against the railing on the right side personal judgment of the actor in the situation before him. The law considers
of the bridge instead of going to the left. He says that the reason he did this was what would be reckless, blameworthy, or negligent in the man of ordinary
that he thought he did not have sufficient time to get over to the other side. The intelligence and prudence and determines liability by that.
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 question as to what would constitute the conduct of a prudent man in a given
the proper side of the road for the machine. In so doing the defendant assumed situation must of course be always determined in the light of human experience
that the horseman would move to the other side. The pony had not as yet and in view of the facts involved in the particular case. Abstract speculations
exhibited fright, and the rider had made no sign for the automobile to stop. cannot here be of much value but this much can be profitably said: Reasonable
Seeing that the pony was apparently quiet, the defendant, instead of veering to men govern their conduct by the circumstances which are before them or known
the right while yet some distance away or slowing down, continued to approach to them. They are not, and are not supposed to be, omniscient of the future.
directly toward the horse without diminution of speed. When he had gotten quite Hence they can be expected to take care only when there is something before
near, there being then no possibility of the horse getting across to the other side, them to suggest or warn of danger. Could a prudent man, in the case under
the defendant quickly turned his car sufficiently to the right to escape hitting the consideration, foresee harm as a result of the course actually pursued? If so, it
horse alongside of the railing where it as then standing; but in so doing the was the duty of the actor to take precautions to guard against that harm.
automobile passed in such close proximity to the animal that it became frightened Reasonable foresight of harm, followed by ignoring of the suggestion born of this
and turned its body across the bridge with its head toward the railing. In so doing, prevision, is always necessary before negligence can be held to exist. Stated in
it as struck on the hock of the left hind leg by the flange of the car and the limb these terms, the proper criterion for determining the existence of negligence in a
was broken. The horse fell and its rider was thrown off with some violence. From given case is this: Conduct is said to be negligent when a prudent man in the
the evidence adduced in the case we believe that when the accident occurred the position of the tortfeasor would have foreseen that an effect harmful to another
free space where the pony stood between the automobile and the railing of the was sufficiently probable to warrant his foregoing conduct or guarding against its
bridge was probably less than one and one half meters. As a result of its injuries consequences.
the horse died. The plaintiff received contusions which caused temporary Applying this test to the conduct of the defendant in the present case we think
unconsciousness and required medical attention for several days. 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 graves). At the preliminary investigation the defendant was discharged by the
was pursuing was fraught with risk, and would therefore have foreseen harm to magistrate and the proceedings were dismissed. Conceding that the acquittal of
the horse and the rider as reasonable consequence of that course. Under these the defendant at the trial upon the merits in a criminal prosecution for the
circumstances the law imposed on the defendant the duty to guard against the offense mentioned would be res adjudicata upon the question of his civil liability
threatened harm. arising from negligence -- a point upon which it is unnecessary to express an
It goes without saying that the plaintiff himself was not free from fault, for he opinion -- the action of the justice of the peace in dismissing the criminal
was guilty of antecedent negligence in planting himself on the wrong side of the proceeding upon the preliminary hearing can have no effect. (See U. S. vs.
road. But as we have already stated, the defendant was also negligent; and in Banzuela and Banzuela, 31 Phil. Rep., 564.)
such case the problem always is to discover which agent is immediately and From what has been said it results that the judgment of the lower court must be
directly responsible. It will be noted that the negligent acts of the two parties reversed, and judgment is her rendered that the plaintiff recover of the
were not contemporaneous, since the negligence of the defendant succeeded the defendant the sum of two hundred pesos (P200), with costs of other instances.
negligence of the plaintiff by an appreciable interval. Under these circumstances The sum here awarded is estimated to include the value of the horse, medical
the law is that the person who has the last fair chance to avoid the impending expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
harm and fails to do so is chargeable with the consequences, without reference to and lawful interest on the whole to the date of this recovery. The other damages
the prior negligence of the other party. claimed by the plaintiff are remote or otherwise of such character as not to be
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., recoverable. So ordered.
359) should perhaps be mentioned in this connection. This Court there held that Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
while contributory negligence on the part of the person injured did not constitute Johnson, J., reserves his vote.
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 Separate Opinions
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 MALCOLM, J., concurring:
a narrow track. At certain spot near the water's edge the track gave way by After mature deliberation, I have finally decided to concur with the judgment in
reason of the combined effect of the weight of the car and the insecurity of the this case. I do so because of my understanding of the "last clear chance" rule of
road bed. The car was in consequence upset; the rails slid off; and the plaintiff's the law of negligence as particularly applied to automobile accidents. This rule
leg was caught and broken. It appeared in evidence that the accident was due to cannot be invoked where the negligence of the plaintiff is concurrent with that of
the effects of the typhoon which had dislodged one of the supports of the track. the defendant. Again, if a traveler when he reaches the point of collision is in a
The court found that the defendant company was negligent in having failed to situation to extricate himself and avoid injury, his negligence at that point will
repair the bed of the track and also that the plaintiff was, at the moment of the prevent a recovery. But Justice Street finds as a fact that the negligent act of the
accident, guilty of contributory negligence in walking at the side of the car interval of time, and that at the moment the plaintiff had no opportunity to avoid
instead of being in front or behind. It was held that while the defendant was the accident. Consequently, the "last clear chance" rule is applicable. In other
liable to the plaintiff by reason of its negligence in having failed to keep the track words, when a traveler has reached a point where he cannot extricate himself
in proper repair nevertheless the amount of the damages should be reduced on and vigilance on his part will not avert the injury, his negligence in reaching that
account of the contributory negligence in the plaintiff. As will be seen the position becomes the condition and not the proximate cause of the injury and will
defendant's negligence in that case consisted in an omission only. The liability of not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
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
EN BANC and David held the cap while Manuel applied a lighted match to the contents. An
G.R. No. L-4977 March 22, 1910 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
DAVID TAYLOR, plaintiff-appellee, frightened and started to run away, received a slight cut in the neck. Manuel had
vs. his hand burned and wounded, and David was struck in the face by several
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant. 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
W. H. Lawrence, for appellant. care for his wounds.
W. L. Wright, for appellee. 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
CARSON, J.: found them. It appears, however, that some months before the accident, during
An action to recover damages for the loss of an eye and other injuries, instituted the construction of the defendant's plant, detonating caps of the same size and
by David Taylor, a minor, by his father, his nearest relative. kind as those found by the boys were used in sinking a well at the power plant
The defendant is a foreign corporation engaged in the operation of a street near the place where the caps were found; and it also appears that at or about
railway and an electric light system in the city of Manila. Its power plant is the time when these caps were found, similarly caps were in use in the
situated at the eastern end of a small island in the Pasig River within the city of construction of an extension of defendant's street car line to Fort William
Manila, known as the Isla del Provisor. The power plant may be reached by boat McKinley. The caps when found appeared to the boys who picked them up to have
or by crossing a footbridge, impassable for vehicles, at the westerly end of the been lying for a considerable time, and from the place where they were found
island. would seem to have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
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 No measures seems to have been adopted by the defendant company to prohibit
than the average boy of his age, and having considerable aptitude and training in or prevent visitors from entering and walking about its premises unattended,
mechanics. 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
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, the islands;" and, we may add, roamed about at will on the uninclosed premises
about 12 years of age, crossed the footbridge to the Isla del Provisor, for the of the defendant, in the neighborhood of the place where the caps were found.
purpose of visiting one Murphy, an employee of the defendant, who and promised There is evidence that any effort ever was made to forbid these children from
to make them a cylinder for a miniature engine. Finding on inquiry that Mr. visiting the defendant company's premises, although it must be assumed that the
Murphy was not in his quarters, the boys, impelled apparently by youthful company or its employees were aware of the fact that they not infrequently did
curiosity and perhaps by the unusual interest which both seem to have taken in so.
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 Two years before the accident, plaintiff spent four months at sea, as a cabin boy
to anyone after leaving the power house where they had asked for Mr. Murphy. 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
After watching the operation of the travelling crane used in handling the accident he obtained employment as a mechanical draftsman and continued in
defendant's coal, they walked across the open space in the neighborhood of the that employment for six months at a salary of P2.50 a day; and it appears that he
place where the company dumped in the cinders and ashes from its furnaces. was a boy of more than average intelligence, taller and more mature both
Here they found some twenty or thirty brass fulminating caps scattered on the mentally and physically than most boys of fifteen.
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 The facts set out in the foregoing statement are to our mind fully and conclusively
may be discharged by the use of electricity. They are intended for use in the established by the evidence of record, and are substantially admitted by counsel.
explosion of blasting charges of dynamite, and have in themselves a considerable The only questions of fact which are seriously disputed are plaintiff's allegations
explosive power. After some discussion as to the ownership of the caps, and their that the caps which were found by plaintiff on defendant company's premises
right to take them, the boys picked up all they could find, hung them on stick, of were the property of the defendant, or that they had come from its possession
which each took end, and carried them home. After crossing the footbridge, they and control, and that the company or some of its employees left them exposed on
met a little girl named Jessie Adrian, less than 9 years old, and all three went to its premises at the point where they were found.
the home of the boy Manuel. The boys then made a series of experiments with the The evidence in support of these allegations is meager, and the defendant
caps. They trust the ends of the wires into an electric light socket and obtained company, apparently relying on the rule of law which places the burden of proof
no result. They next tried to break the cap with a stone and failed. Manuel looked of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists
for a hammer, but could not find one. Then they opened one of the caps with a that plaintiff failed in his proof. We think, however, that plaintiff's evidence is
knife, and finding that it was filled with a yellowish substance they got matches, 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 premises were its property, and were left where they were found by the company
less extensively, on the McKinley extension of the defendant company's track; or some of its employees.
that some of these caps were used in blasting a well on the company's premises a Plaintiff appears to have rested his case, as did the trial judge his decision in
few months before the accident; that not far from the place where the caps were plaintiff's favor, upon the provisions of article 1089 of the Civil Code read
found the company has a storehouse for the materials, supplies and so forth, used together with articles 1902, 1903, and 1908 of that code.
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 ART. 1089 Obligations are created by law, by contracts, by quasi-
the company as a sort of dumping ground for ashes and cinders. Fulminating caps contracts, and illicit acts and omissions or by those in which any kind of
or detonators for the discharge by electricity of blasting charges by dynamite are fault or negligence occurs.
not articles in common use by the average citizen, and under all the ART. 1902 A person who by an act or omission causes damage to another
circumstances, and in the absence of all evidence to the contrary, we think that when there is fault or negligence shall be obliged to repair the damage
the discovery of twenty or thirty of these caps at the place where they were so done.
found by the plaintiff on defendant's premises fairly justifies the inference that
ART. 1903 The obligation imposed by the preceding article is
the defendant company was either the owner of the caps in question or had the
demandable, not only for personal acts and omissions, but also for those
caps under its possession and control. We think also that the evidence tends to
of the persons for whom they should be responsible.
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 The father, and on his death or incapacity the mother, is liable for the
expectation that they would be buried out of the sight by the ashes which it was damages caused by the minors who live with them.
engaged in dumping in that neighborhood, they being old and perhaps defective; xxx xxx xxx
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 Owners or directors of an establishment or enterprise are equally liable
through an oversight left them exposed at a point on its premises which the for damages caused by their employees in the service of the branches in
general public, including children at play, where not prohibited from visiting, and which the latter may be employed or on account of their duties.
over which the company knew or ought to have known that young boys were likely xxx xxx xxx
to roam about in pastime or in play.
The liability referred to in this article shall cease when the persons
Counsel for appellant endeavors to weaken or destroy the probative value of the mentioned therein prove that they employed all the diligence of a good
facts on which these conclusions are based by intimidating or rather assuming that father of a family to avoid the damage.
the blasting work on the company's well and on its McKinley extension was done
ART. 1908 The owners shall also be liable for the damage caused —
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 1 By the explosion of machines which may not have been cared for with
firm of contractors, he did the work on the well directly and immediately under due diligence, and for kindling of explosive substances which may not
the supervision and control of one of defendant company's foremen, and there is have been placed in a safe and proper place.
no proof whatever in the record that the blasting on the McKinley extension was Counsel for the defendant and appellant rests his appeal strictly upon his
done by independent contractors. Only one witness testified upon this point, and contention that the facts proven at the trial do not established the liability of the
while he stated that he understood that a part of this work was done by contract, defendant company under the provisions of these articles, and since we agree
he could not say so of his own knowledge, and knew nothing of the terms and with this view of the case, it is not necessary for us to consider the various
conditions of the alleged contract, or of the relations of the alleged contractor to questions as to form and the right of action (analogous to those raised in the case
the defendant company. The fact having been proven that detonating caps were of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would,
more or less extensively employed on work done by the defendant company's perhaps, be involved in a decision affirming the judgment of the court below.
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 We agree with counsel for appellant that under the Civil Code, as under the
unreasonable inference that it was the owner of the material used in these generally accepted doctrine in the United States, the plaintiff in an action such as
operations and that it was responsible for tortious or negligent acts of the agents that under consideration, in order to establish his right to a recovery, must
employed therein, on the ground that this work had been intrusted establish by competent evidence:
to independent contractors as to whose acts the maxim respondent (1) Damages to the plaintiff.
superior should not be applied. If the company did not in fact own or make use of (2) Negligence by act or omission of which defendant personally, or some
caps such as those found on its premises, as intimated by counsel, it was a very person for whose acts it must respond, was guilty.
simple matter for it to prove that fact, and in the absence of such proof we think
that the other evidence in the record sufficiently establishes the contrary, and (3) The connection of cause and effect between the negligence and the
justifies the court in drawing the reasonable inference that the caps found on its damage.
These proposition are, of course, elementary, and do not admit of discussion, the of tender years. The care and caution required of a child is according to his
real difficulty arising in the application of these principles to the particular facts maturity and capacity only, and this is to be determined in each case by the
developed in the case under consideration. circumstances of the case."
It is clear that the accident could not have happened and not the fulminating caps The doctrine of the case of Railroad Company vs. Stout was vigorously
been left exposed at the point where they were found, or if their owner had controverted and sharply criticized in several state courts, and the supreme court
exercised due care in keeping them in an appropriate place; but it is equally clear of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated
that plaintiff would not have been injured had he not, for his own pleasure and and disapproved the doctrine of the Turntable cases, especially that laid down
convenience, entered upon the defendant's premises, and strolled around thereon in Railroad Company vs. Stout, in a very able decision wherein it held, in the
without the express permission of the defendant, and had he not picked up and language of the syllabus: (1) That the owner of the land is not liable to
carried away the property of the defendant which he found on its premises, and trespassers thereon for injuries sustained by them, not due to his wanton or
had he not thereafter deliberately cut open one of the caps and applied a match willful acts; (2) that no exception to this rule exists in favor of children who are
to its contents. injured by dangerous machinery naturally calculated to attract them to the
But counsel for plaintiff contends that because of plaintiff's youth and premises; (3) that an invitation or license to cross the premises of another can not
inexperience, his entry upon defendant company's premises, and the intervention be predicated on the mere fact that no steps have been taken to interfere with
of his action between the negligent act of defendant in leaving the caps exposed such practice; (4) that there is no difference between children and adults as to
on its premises and the accident which resulted in his injury should not be held to the circumstances that will warrant the inference of an invitation or a license to
have contributed in any wise to the accident, which should be deemed to be the enter upon another's premises.
direct result of defendant's negligence in leaving the caps exposed at the place Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
where they were found by the plaintiff, and this latter the proximate cause of the indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad
accident which occasioned the injuries sustained by him. Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in
In support of his contention, counsel for plaintiff relies on the doctrine laid down Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.
in many of the courts of last resort in the United States in the cases known as the On the other hand, many if not most of the courts of last resort in the United
"Torpedo" and "Turntable" cases, and the cases based thereon. States, citing and approving the doctrine laid down in England in the leading case
In a typical cases, the question involved has been whether a railroad company is of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in
liable for an injury received by an infant of tender years, who from mere idle accord with that announced in the Railroad Company vs. Stout (supra), and the
curiosity, or for the purposes of amusement, enters upon the railroad company's Supreme Court of the United States, in a unanimous opinion delivered by Justice
premises, at a place where the railroad company knew, or had good reason to Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the
suppose, children would be likely to come, and there found explosive signal doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical
torpedoes left unexposed by the railroad company's employees, one of which analysis and review of many of the adjudged cases, both English and American,
when carried away by the visitor, exploded and injured him; or where such infant formally declared that it adhered "to the principles announced in the case
found upon the premises a dangerous machine, such as a turntable, left in such of Railroad Co. vs. Stout."
condition as to make it probable that children in playing with it would be exposed In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as
to accident or injury therefrom and where the infant did in fact suffer injury in follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own
playing with such machine. pleasure, entered upon and visited the defendant's premises, without defendant's
In these, and in great variety of similar cases, the great weight of authority holds express permission or invitation, and while there, was by accident injured by
the owner of the premises liable. 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
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the anything to give warning of its dangerous condition, although defendant knew or
principal question was whether a railroad company was liable for in injury had reason the interest or curiosity of passers-by. On these facts the court held
received by an infant while upon its premises, from idle curiosity, or for purposes that the plaintiff could not be regarded as a mere trespasser, for whose safety
of amusement, if such injury was, under circumstances, attributable to the and protection while on the premises in question, against the unseen danger
negligence of the company), the principles on which these cases turn are that referred to, the defendant was under no obligation to make provision.
"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 We quote at length from the discussion by the court of the application of the
conveyed by it, it is not exempt from responsibility to such strangers for injuries principles involved to the facts in that case, because what is said there is
arising from its negligence or from its tortious acts;" and that "the conduct of an strikingly applicable in the case at bar, and would seem to dispose of defendant's
infant of tender years is not to be judged by the same rule which governs that of contention that, the plaintiff in this case being a trespasser, the defendant
adult. While it is the general rule in regard to an adult that to entitle him to company owed him no duty, and in no case could be held liable for injuries which
recover damages for an injury resulting from the fault or negligence of another he would not have resulted but for the entry of plaintiff on defendant's premises.
must himself have been free from fault, such is not the rule in regard to an infant
We adhere to the principles announced in Railroad Co. vs. Stout (supra). precautions accordingly. If they leave exposed to the observation of
Applied to the case now before us, they require us to hold that the children anything which would be tempting to them, and which they in
defendant was guilty of negligence in leaving unguarded the slack pile, their immature judgment might naturally suppose they were at liberty to
made by it in the vicinity of its depot building. It could have forbidden handle or play with, they should expect that liberty to be taken.
all persons from coming to its coal mine for purposes merely of curiosity And the same eminent jurist in his treatise or torts, alluding to the doctrine of
and pleasure. But it did not do so. On the contrary, it permitted all, implied invitation to visit the premises of another, says:
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 In the case of young children, and other persons not fully sui juris, an
its slack pit, close to its depot building, at which the people of the implied license might sometimes arise when it would not on behalf of
village, old and young, would often assemble. It knew that children were others. Thus leaving a tempting thing for children to play with exposed,
in the habit of frequenting that locality and playing around the shaft where they would be likely to gather for that purpose, may be equivalent
house in the immediate vicinity of the slack pit. The slightest regard for to an invitation to them to make use of it; and, perhaps, if one were to
the safety of these children would have suggested that they were in throw away upon his premises, near the common way, things tempting to
danger from being so near a pit, beneath the surface of which was children, the same implication should arise. (Chap. 10, p. 303.)
concealed (except when snow, wind, or rain prevailed) a mass of burning The reasoning which led the Supreme Court of the United States to its conclusion
coals into which a child might accidentally fall and be burned to death. in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
Under all the circumstances, the railroad company ought not to be heard McDonald (supra) is not less cogent and convincing in this jurisdiction than in that
to say that the plaintiff, a mere lad, moved by curiosity to see the mine, wherein those cases originated. Children here are actuated by similar childish
in the vicinity of the slack pit, was a trespasser, to whom it owed no instincts and impulses. Drawn by curiosity and impelled by the restless spirit of
duty, or for whose protection it was under no obligation to make youth, boys here as well as there will usually be found whenever the public is
provisions. permitted to congregate. The movement of machinery, and indeed anything
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man which arouses the attention of the young and inquiring mind, will draw them to
dangerous traps, baited with flesh, in his own ground, so near to a the neighborhood as inevitably as does the magnet draw the iron which comes
highway, or to the premises of another, that dogs passing along the within the range of its magnetic influence. The owners of premises, therefore,
highway, or kept in his neighbors premises, would probably be attracted whereon things attractive to children are exposed, or upon which the public are
by their instinct into the traps, and in consequence of such act his expressly or impliedly permitted to enter or upon which the owner knows or ought
neighbor's dogs be so attracted and thereby injured, an action on the to know children are likely to roam about for pastime and in play, " must
case would lie. "What difference," said Lord Ellenborough, C.J., "is there calculate upon this, and take precautions accordingly." In such cases the owner of
in reason between drawing the animal into the trap by means of his the premises can not be heard to say that because the child has entered upon his
instinct which he can not resist, and putting him there by manual force?" premises without his express permission he is a trespasser to whom the owner
What difference, in reason we may observe in this case, is there between owes no duty or obligation whatever. The owner's failure to take reasonable
an express license to the children of this village to visit the defendant's precautions to prevent the child from entering his premises at a place where he
coal mine, in the vicinity of its slack pile, and an implied license, knows or ought to know that children are accustomed to roam about of to which
resulting from the habit of the defendant to permit them, without their childish instincts and impulses are likely to attract them is at least
objection or warning, to do so at will, for purposes of curiosity or equivalent to an implied license to enter, and where the child does enter under
pleasure? Referring it the case of Townsend vs. Wathen, Judge such conditions the owner's failure to take reasonable precautions to guard the
Thompson, in his work on the Law of Negligence, volume 1, page 305, child against injury from unknown or unseen dangers, placed upon such premises
note, well says: "It would be a barbarous rule of law that would make the by the owner, is clearly a breach of duty, responsible, if the child is actually
owner of land liable for setting a trap thereon, baited with stinking injured, without other fault on its part than that it had entered on the premises
meat, so that his neighbor's dog attracted by his natural instinct, might of a stranger without his express invitation or permission. To hold otherwise
run into it and be killed, and which would exempt him from liability for would be expose all the children in the community to unknown perils and
the consequence of leaving exposed and unguarded on his land a unnecessary danger at the whim of the owners or occupants of land upon which
dangerous machine, so that his neighbor's child attracted to it and they might naturally and reasonably be expected to enter.
tempted to intermeddle with it by instincts equally strong, might thereby This conclusion is founded on reason, justice, and necessity, and neither is
be killed or maimed for life." contention that a man has a right to do what will with his own property or that
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the children should be kept under the care of their parents or guardians, so as to
case of Powers vs. Harlow (53 Mich., 507), said that (p. 515): 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
Children, wherever they go, must be expected to act upon childlike acquired and held under the tacit condition that it shall not be so used as to
instincts and impulses; and others who are chargeable with a duty of injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No.
care and caution toward them must calculate upon this, and take 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 throughout that he was exceptionally well qualified to take care of himself. The
we lived to hold that parents or guardian are guilty of negligence or imprudence evidence of record leaves no room for doubt that, despite his denials on the
in every case wherein they permit growing boys and girls to leave the parental witness stand, he well knew the explosive character of the cap with which he was
roof unattended, even if in the event of accident to the child the negligence of amusing himself. The series of experiments made by him in his attempt to
the parent could in any event be imputed to the child so as to deprive it a right to produce an explosion, as described by the little girl who was present, admit of no
recover in such cases — a point which we neither discuss nor decide. other explanation. His attempt to discharge the cap by the use of electricity,
But while we hold that the entry of the plaintiff upon defendant's property followed by his efforts to explode it with a stone or a hammer, and the final
without defendant's express invitation or permission would not have relieved success of his endeavors brought about by the application of a match to the
defendant from responsibility for injuries incurred there by plaintiff, without contents of the caps, show clearly that he knew what he was about. Nor can there
other fault on his part, if such injury were attributable to the negligence of the be any reasonable doubt that he had reason to anticipate that the explosion might
defendant, we are of opinion that under all the circumstances of this case the be dangerous, in view of the fact that the little girl, 9 years of age, who was
negligence of the defendant in leaving the caps exposed on its premises was not within him at the time when he put the match to the contents of the cap, became
the proximate cause of the injury received by the plaintiff, which therefore was frightened and ran away.
not, properly speaking, "attributable to the negligence of the defendant," and, on True, he may not have known and probably did not know the precise nature of the
the other hand, we are satisfied that plaintiffs action in cutting open the explosion which might be expected from the ignition of the contents of the cap,
detonating cap and putting match to its contents was the proximate cause of the and of course he did not anticipate the resultant injuries which he incurred; but
explosion and of the resultant injuries inflicted upon the plaintiff, and that the he well knew that a more or less dangerous explosion might be expected from his
defendant, therefore is not civilly responsible for the injuries thus incurred. act, and yet he willfully, recklessly, and knowingly produced the explosion. It
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that would be going far to say that "according to his maturity and capacity" he
because of plaintiff's youth the intervention of his action between the negligent exercised such and "care and caution" as might reasonably be required of him, or
act of the defendant in leaving the caps exposed on its premises and the that defendant or anyone else should be held civilly responsible for injuries
explosion which resulted in his injury should not be held to have contributed in incurred by him under such circumstances.
any wise to the accident; and it is because we can not agree with this proposition, The law fixes no arbitrary age at which a minor can be said to have the necessary
although we accept the doctrine of the Turntable and Torpedo cases, that we capacity to understand and appreciate the nature and consequences of his own
have thought proper to discuss and to consider that doctrine at length in this acts, so as to make it negligence on his part to fail to exercise due care and
decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the precaution in the commission of such acts; and indeed it would be impracticable
general rule in regard to an adult that to entitle him to recover damages for an and perhaps impossible so to do, for in the very nature of things the question of
injury resulting from the fault or negligence of another he must himself have been negligence necessarily depends on the ability of the minor to understand the
free from fault, such is not the rule in regard to an infant of tender years. The character of his own acts and their consequences; and the age at which a minor
care and caution required of a child is according to his maturity and capacity can be said to have such ability will necessarily depends of his own acts and their
only, and this is to be determined in each case by the circumstances of the case." consequences; and at the age at which a minor can be said to have such ability
As we think we have shown, under the reasoning on which rests the doctrine of will necessarily vary in accordance with the varying nature of the infinite variety
the Turntable and Torpedo cases, no fault which would relieve defendant of of acts which may be done by him. But some idea of the presumed capacity of
responsibility for injuries resulting from its negligence can be attributed to the infants under the laws in force in these Islands may be gathered from an
plaintiff, a well-grown boy of 15 years of age, because of his entry upon examination of the varying ages fixed by our laws at which minors are
defendant's uninclosed premises without express permission or invitation' but it is conclusively presumed to be capable of exercising certain rights and incurring
wholly different question whether such youth can be said to have been free from certain responsibilities, though it can not be said that these provisions of law are
fault when he willfully and deliberately cut open the detonating cap, and placed of much practical assistance in cases such as that at bar, except so far as they
a match to the contents, knowing, as he undoubtedly did, that his action would illustrate the rule that the capacity of a minor to become responsible for his own
result in an explosion. On this point, which must be determined by "the particular acts varies with the varying circumstances of each case. Under the provisions of
circumstances of this case," the doctrine laid down in the Turntable and Torpedo the Penal Code a minor over fifteen years of age is presumed to be capable of
cases lends us no direct aid, although it is worthy of observation that in all of the committing a crime and is to held criminally responsible therefore, although the
"Torpedo" and analogous cases which our attention has been directed, the record fact that he is less than eighteen years of age will be taken into consideration as
discloses that the plaintiffs, in whose favor judgments have been affirmed, were an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a
of such tender years that they were held not to have the capacity to understand child may, under certain circumstances, choose which parent it prefers to live
the nature or character of the explosive instruments which fell into their hands. with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment
In the case at bar, plaintiff at the time of the accident was a well-grown youth of of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec.
15, more mature both mentally and physically than the average boy of his age; he 765). And males of 14 and females of 12 are capable of contracting a legal
had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
draftsman thirty days after the injury was incurred; and the record discloses
We are satisfied that the plaintiff in this case had sufficient capacity and negligence gives rise to an obligation when between it and the damage
understanding to be sensible of the danger to which he exposed himself when he there exists the relation of cause and effect; but if the damage caused
put the match to the contents of the cap; that he was sui juris in the sense that does not arise from the acts or omissions of a third person, there is no
his age and his experience qualified him to understand and appreciate the obligation to make good upon the latter, even though such acts or
necessity for the exercise of that degree of caution which would have avoided the omissions be imprudent or illegal, and much less so when it is shown that
injury which resulted from his own deliberate act; and that the injury incurred by the immediate cause of the damage has been the recklessness of the
him must be held to have been the direct and immediate result of his own willful injured party himself.
and reckless act, so that while it may be true that these injuries would not have And again —
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 In accordance with the fundamental principle of proof, that the burden
principal cause of the accident which inflicted the injury. 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,
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non 1896, and March 18, July, and September 27, 1898, have especially
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.) supported the principle, the first setting forth in detail the necessary
The Patidas contain the following provisions: points of the proof, which are two: An act or omission on the part of the
The just thing is that a man should suffer the damage which comes to person who is to be charged with the liability, and the production of the
him through his own fault, and that he can not demand reparation damage by said act or omission.
therefor from another. (Law 25, tit. 5, Partida 3.) This includes, by inference, the establishment of a relation of cause or
And they even said that when a man received an injury through his own effect between the act or omission and the damage; the latter must be
acts the grievance should be against himself and not against another. the direct result of one of the first two. As the decision of March 22,
(Law 2, tit. 7, Partida 2.) 1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily
According to ancient sages, when a man received an injury through his presupposing a legal ground for imputability." (Decision of October 29,
own acts the grievance should be against himself and not against 1887.)
another. (Law 2, tit. 7 Partida 2.)
Negligence is not presumed, but must be proven by him who alleges it.
And while there does not appear to be anything in the Civil Code which expressly (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
lays down the law touching contributory negligence in this jurisdiction,
nevertheless, the interpretation placed upon its provisions by the supreme court (Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Finally we think the doctrine in this jurisdiction applicable to the case at bar was
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to definitely settled in this court in the maturely considered case of Rakes vs.
recover damages from the defendant, in whole or in part, for the injuries Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are
sustained by him. many cases (personal injury cases) was exonerated," on the ground that "the
The judgment of the supreme court of Spain of the 7th of March, 1902 negligence of the plaintiff was the immediate cause of the casualty" (decisions of
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said: 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
According to the doctrine expressed in article 1902 of the Civil Code, Spain "define the effect to be given the negligence of its causes, though not the
fault or negligence is a source of obligation when between such principal one, and we are left to seek the theory of the civil law in the practice of
negligence and the injury there exists the relation of cause and effect; other countries;" and in such cases we declared that law in this jurisdiction to
but if the injury produced should not be the result of acts or omissions of require the application of "the principle of proportional damages," but expressly
a third party, the latter has no obligation to repair the same, although and definitely denied the right of recovery when the acts of the injured party
such acts or omission were imprudent or unlawful, and much less when it were the immediate causes of the accident.
is shown that the immediate cause of the injury was the negligence of
the injured party himself. The doctrine as laid down in that case is as follows:

The same court, in its decision of June 12, 1900, said that "the existence of the Difficulty seems to be apprehended in deciding which acts of the injured
alleged fault or negligence is not sufficient without proof that it, and no other party shall be considered immediate causes of the accident. The test is
cause, gave rise to the damage." simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no
See also judgment of October 21, 1903. accident, and those acts of the victim not entering into it, independent
To similar effect Scaevola, the learned Spanish writer, writing under that of it, but contributing to his own proper hurt. For instance, the cause of
title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), the accident under review was the displacement of the crosspiece or the
commenting on the decision of March 7, 1902 of the Civil Code, fault or 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
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.

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

Johnson, J., concurs in the result.

Phil. Rep., 85.
G.R. No. 129792 December 21, 1999 After the burial of their daughter, private respondents demanded upon petitioners
the reimbursement of the hospitalization, medical bills and wake and funeral
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA expenses 6 which they had incurred. Petitioners refused to pay. Consequently,
PANELO, petitioners, private respondents filed a complaint for damages, docketed as Civil Case No.
vs. 7119 wherein they sought the payment of P157,522.86 for actual damages,
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. P300,000 for moral damages, P20,000 for attorney's fees and an unspecified
AGUILAR, respondents. amount for loss of income and exemplary damages.
DAVIDE, JR., J.: In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in
In this petition for review on certiorari under Rule 45 of the Rules of Court, exercising care and diligence over her daughter by allowing her to freely roam
petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of around in a store filled with glassware and appliances. ZHIENETH too, was guilty
Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for of contributory negligence since she climbed the counter, triggering its eventual
reconsideration. The assailed decision set aside the 15 January 1992 judgment of collapse on her. Petitioners also emphasized that the counter was made of sturdy
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and wood with a strong support; it never fell nor collapsed for the past fifteen years
ordered petitioners to pay damages and attorney's fees to private respondents since its construction.
Conrado and Criselda (CRISELDA) Aguilar.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, the diligence of a good father of a family in the selection, supervision and control
Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's of its employees. The other petitioners likewise raised due care and diligence in
branch manager, operations manager, and supervisor, respectively. Private the performance of their duties and countered that the complaint was malicious
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH). for which they suffered besmirched reputation and mental anguish. They sought
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of the dismissal of the complaint and an award of moral and exemplary damages and
Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at attorney's fees in their favor.
the payment and verification counter when she felt a sudden gust of wind and In its decision 7 the trial court dismissed the complaint and counterclaim after
heard a loud thud. She looked behind her. She then beheld her daughter finding that the preponderance of the evidence favored petitioners. It ruled that
ZHIENETH on the floor, her young body pinned by the bulk of the store's gift- the proximate cause of the fall of the counter on ZHIENETH was her act of
wrapping counter/structure. ZHIENETH was crying and screaming for help. clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung
Although shocked, CRISELDA was quick to ask the assistance of the people around to the counter, afterwhich the structure and the girl fell with the structure falling
in lifting the counter and retrieving ZHIENETH from the floor. 3 on top of her, pinning her stomach. In contrast, none of private respondents'
ZHIENETH was quickly rushed to the Makati Medical Center where she was witnesses testified on how the counter fell. The trial court also held that
operated on. The next day ZHIENETH lost her speech and thereafter CRISELDA's negligence contributed to ZHIENETH's accident.
communicated with CRISELDA by writing on a magic slate. The injuries she In absolving petitioners from any liability, the trial court reasoned that the
sustained took their toil on her young body. She died fourteen (14) days after the counter was situated at the end or corner of the 2nd floor as a precautionary
accident or on 22 May 1983, on the hospital bed. She was six years old. 4 measure hence, it could not be considered as an attractive nuisance. 8The counter
The cause of her death was attributed to the injuries she sustained. The was higher than ZHIENETH. It has been in existence for fifteen years. Its structure
provisional medical certificate 5 issued by ZHIENETH's attending doctor described was safe and well-balanced. ZHIENETH, therefore, had no business climbing on
the extent of her injuries: and clinging to it.
Diagnoses: Private respondents appealed the decision, attributing as errors of the trial court
1. Shock, severe, sec. to intra-abdominal injuries due to blunt its findings that: (1) the proximate cause of the fall of the counter was
injury 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)
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) petitioners were not liable for the death of ZHIENETH.
lobe liver
Further, private respondents asserted that ZHIENETH should be entitled to the
3. Rupture, stomach, anterior & posterior walls conclusive presumption that a child below nine (9) years is incapable of
4. Complete transection, 4th position, duodenum 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
5. Hematoma, extensive, retroperitoneal
have propped herself on the counter. She had a small frame (four feet high and
6. Contusion, lungs, severe 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 The Court of Appeals also rejected the testimonies of the witnesses of
accompanied ZHIENETH when she was brought to the emergency room of the petitioners. It found them biased and prejudiced. It instead gave credit to the
Makati Medical Center belied petitioners' theory that ZHIENETH climbed the testimony of disinterested witness Gonzales. The Court of Appeals then awarded
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she P99,420.86 as actual damages, the amount representing the hospitalization
did, ZHIENETH replied, "[N]othing, I did not come near the counter and the expenses incurred by private respondents as evidenced by the hospital's
counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's statement of account. 12 It denied an award for funeral expenses for lack of proof
spontaneous declaration should not only be considered as part of res gestaebut to substantiate the same. Instead, a compensatory damage of P50,000 was
also accorded credit. awarded for the death of ZHIENETH.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for We quote the dispositive portion of the assailed decision, thus:
her to have let go of ZHIENETH at the precise moment that she was signing the WHEREFORE, premises considered, the judgment of the lower
credit card slip. court is SET ASIDE and another one is entered against
Finally, private respondents vigorously maintained that the proximate cause of [petitioners], ordering them to pay jointly and severally unto
ZHIENETH's death, was petitioners' negligence in failing to institute measures to [private respondents] the following:
have the counter permanently nailed. 1. P50,000.00 by way of compensatory damages for the
On the other hand, petitioners argued that private respondents raised purely death of Zhieneth Aguilar, with legal interest (6% p.a.)
factual issues which could no longer be disturbed. They explained that ZHIENETH's from 27 April 1984;
death while unfortunate and tragic, was an accident for which neither CRISELDA 2. P99,420.86 as reimbursement for hospitalization
nor even ZHIENETH could entirely be held faultless and blameless. Further, expenses incurred; with legal interest (6% p.a.) from 27
petitioners adverted to the trial court's rejection of Gonzales' testimony as April 1984;
unworthy of credence.
3. P100,000.00 as moral and exemplary damages;
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 4. P20,000.00 in the concept of attorney's fees; and
existence for several years without any prior accident and was deliberately placed 5. Costs.
at a corner to avoid such accidents. Truth to tell, they acted without fault or
Private respondents sought a reconsideration of the decision but the same was
negligence for they had exercised due diligence on the matter. In fact, the
denied in the Court of Appeals' resolution 14 of 16 July 1997.
criminal case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict of Petitioners now seek the reversal of the Court of Appeals' decision and the
acquittal was rendered in their favor. 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 Court of Appeals, however, decided in favor of private respondents and
the trial court. They stress that since the action was based on tort, any finding of
reversed the appealed judgment. It found that petitioners were negligent in
negligence on the part of the private respondents would necessarily negate their
maintaining a structurally dangerous counter. The counter was shaped like an
claim for damages, where said negligence was the proximate cause of the injury
inverted "L" 11 with a top wider than the base. It was top heavy and the weight of
sustained. The injury in the instant case was the death of ZHIENETH. The
the upper portion was neither evenly distributed nor supported by its narrow
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
base. Thus, the counter was defective, unstable and dangerous; a downward
caused the counter to fall on her. This and CRISELDA's contributory negligence,
pressure on the overhanging portion or a push from the front could cause the
through her failure to provide the proper care and attention to her child while
counter to fall. Two former employees of petitioners had already previously
inside the store, nullified private respondents' claim for damages. It is also for
brought to the attention of the management the danger the counter could cause.
these reasons that parents are made accountable for the damage or injury
But the latter ignored their concern. The Court of Appeals faulted the petitioners
inflicted on others by their minor children. Under these circumstances,
for this omission, and concluded that the incident that befell ZHIENETH could
petitioners could not be held responsible for the accident that befell ZHIENETH.
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 Petitioners also assail the credibility of Gonzales who was already separated from
incident. Syvel's at the time he testified; hence, his testimony might have been tarnished
by ill-feelings against them.
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. For their part, private respondents principally reiterated their arguments that
It reasoned that since a child under nine (9) years could not be held liable even neither ZHIENETH nor CRISELDA was negligent at any time while inside the store;
for an intentional wrong, then the six-year old ZHIENETH could not be made to the findings and conclusions of the Court of Appeals are substantiated by the
account for a mere mischief or reckless act. It also absolved CRISELDA of any evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on
negligence, finding nothing wrong or out of the ordinary in momentarily allowing the incident while she was in the hospital's emergency room should receive
ZHIENETH to walk while she signed the document at the nearby counter. 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 This testimony of Gonzales pertaining to ZHIENETH's statement formed (and
correct version of the gruesome events. should be admitted as) part of the res gestae under Section 42, Rule 130 of the
We deny the petition. Rules of Court, thus:

The two issues to be resolved are: (1) whether the death of ZHIENETH was Part of res gestae. Statements made by a person while a
accidental or attributable to negligence; and (2) in case of a finding of startling occurrence is taking place or immediately prior or
negligence, whether the same was attributable to private respondents for subsequent thereto with respect to the circumstances thereof,
maintaining a defective counter or to CRISELDA and ZHIENETH for failing to may be given in evidence as part of the res gestae. So, also,
exercise due and reasonable care while inside the store premises. statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part
An accident pertains to an unforeseen event in which no fault or negligence of the res gestae.
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 It is axiomatic that matters relating to declarations of pain or suffering and
through human agency, an event which under the circumstances is unusual or statements made to a physician are generally considered declarations and
unexpected by the person to whom it happens." 16 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
On the other hand, negligence is the omission to do something which a reasonable declarant had the time to think and concoct a falsehood as witnessed by the
man, guided by those considerations which ordinarily regulate the conduct of person who testified in court. Under the circumstances thus described, it is
human affairs, would do, or the doing of something which a prudent and unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
reasonable man would not do. 17 Negligence is "the failure to observe, for the have lied to a doctor whom she trusted with her life. We therefore accord
protection of the interest of another person, that degree of care, precaution and credence to Gonzales' testimony on the matter, i.e., ZHIENETH performed no act
vigilance which the circumstances justly demand, whereby such other person that facilitated her tragic death. Sadly, petitioners did, through their negligence
suffers injury." 18 or omission to secure or make stable the counter's base.
Accident and negligence are intrinsically contradictory; one cannot exist with the Gonzales' earlier testimony on petitioners' insistence to keep and maintain the
other. Accident occurs when the person concerned is exercising ordinary care, structurally unstable gift-wrapping counter proved their negligence, thus:
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19 Q When you assumed the position as gift wrapper at the second
floor, will you please describe the gift wrapping counter, were
The test in determining the existence of negligence is enunciated in the landmark you able to examine?
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 A Because every morning before I start working I used to clean
would have used in the same situation? If not, then he is guilty of negligence. 21 that counter and since not nailed and it was only standing on
the floor, it was shaky.
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributed to negligence. xxx xxx xxx

We quote the testimony of Gerardo Gonzales who was at the scene of the incident Q Will you please describe the counter at 5:00 o'clock [sic] in
and accompanied CRISELDA and ZHIENETH to the hospital: the afternoon on [sic] May 9 1983?

Q While at the Makati Medical Center, did you hear or notice A At that hour on May 9, 1983, that counter was standing beside
anything while the child was being treated? the verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime,
A At the emergency room we were all surrounding the child. And since the top is heavy.
when the doctor asked the child "what did you do," the child
said "nothing, I did not come near the counter and the counter xxx xxx xxx
just fell on me." Q And what did you do?
Q (COURT TO ATTY. BELTRAN) A I informed Mr. Maat about that counter which is [sic] shaky
You want the words in Tagalog to be translated? and since Mr. Maat is fond of putting display decorations on
tables, he even told me that I would put some decorations. But
ATTY. BELTRAN since I told him that it not [sic] nailed and it is shaky he told me
Yes, your Honor. "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]
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
Ramon Guevarra, another former employee, corroborated the testimony of
bumagsak." 22
Gonzales, thus:
Q Will you please described [sic] to the honorable Court the appreciate some facts or circumstances of weight and substance which could
counter where you were assigned in January 1983? affect the result of the case.27 In the instant case, petitioners failed to bring their
xxx xxx xxx claim within the exception.

A That counter assigned to me was when my supervisor ordered Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption
me to carry that counter to another place. I told him that the that favors children below nine (9) years old in that they are incapable of
counter needs nailing and it has to be nailed because it might contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:
cause injury or accident to another since it was shaky. In our jurisdiction, a person under nine years of age is
Q When that gift wrapping counter was transferred at the conclusively presumed to have acted without discernment, and
second floor on February 12, 1983, will you please describe that is, on that account, exempt from criminal liability. The same
to the honorable Court? presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age,
A I told her that the counter wrapper [sic] is really in good [sic] unless it is shown that he has acted with discernment. Since
condition; it was shaky. I told her that we had to nail it. negligence may be a felony and aquasi-delict and required
Q When you said she, to whom are you referring to [sic]? discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
A I am referring to Ms. Panelo, sir.
presumed to be incapable of negligence; and that the
Q And what was the answer of Ms. Panelo when you told her presumption of lack of discernment or incapacity for negligence
that the counter was shaky? in the case of a child over nine but under fifteen years of age is
A She told me "Why do you have to teach me. You are only my a rebuttable one, under our law. The rule, therefore, is that a
subordinate and you are to teach me?" And she even got angry child under nine years of age must be conclusively presumed
at me when I told her that. incapable of contributory negligence as a matter of law.
[Emphasis supplied]
xxx xxx xxx
Even if we attribute contributory negligence to ZHIENETH and assume that she
Q From February 12, 1983 up to May 9, 1983, what if any, did climbed over the counter, no injury should have occurred if we accept petitioners'
Ms. Panelo or any employee of the management do to that (sic) theory that the counter was stable and sturdy. For if that was the truth, a frail
xxx xxx xxx 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
None, sir. They never nailed the counter. They only nailed the like an inverted "L," the counter was heavy, huge, and its top laden with formica.
counter after the accident happened. 25 [Emphasis supplied] It protruded towards the customer waiting area and its base was not secured. 30
Without doubt, petitioner Panelo and another store supervisor were personally CRISELDA too, should be absolved from any contributory negligence. Initially,
informed of the danger posed by the unstable counter. Yet, neither initiated any ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
concrete action to remedy the situation nor ensure the safety of the store's momentarily released the child's hand from her clutch when she signed her credit
employees and patrons as a reasonable and ordinary prudent man would have card slip. At this precise moment, it was reasonable and usual for CRISELDA to let
done. Thus, as confronted by the situation petitioners miserably failed to go of her child. Further, at the time ZHIENETH was pinned down by the counter,
discharge the due diligence required of a good father of a family. she was just a foot away from her mother; and the gift-wrapping counter was just
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to four meters away from CRISELDA. 32 The time and distance were both significant.
establish that the former's testimonies were biased and tainted with partiality. ZHIENETH was near her mother and did not loiter as petitioners would want to
Therefore, the allegation that Gonzales and Guevarra's testimonies were impress upon us. She even admitted to the doctor who treated her at the hospital
blemished by "ill feelings" against petitioners — since they (Gonzales and that she did not do anything; the counter just fell on her.
Guevarra) were already separated from the company at the time their testimonies WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
were offered in court — was but mere speculation and deserved scant challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
consideration. 37937 is hereby AFFIRMED.
It is settled that when the issue concerns the credibility of witnesses, the Costs against petitioners.
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 Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
deportment of the witnesses. 26However, the rule admits of exceptions such as
when its evaluation was reached arbitrarily or it overlooked or failed to Footnotes
1 Annex "A" of Petition; Rollo, 36-47. Per Justice Godardo A. Jacinto, 3 meters in width; with four (4) square legs. Its top was made of 5 1/2
with Justices Salome A. Montoya and Maximiano C. Asuncion, concurring. inch thick wood covered by formica about 3/4 inch thick.
2 Annex "B" of Petition; Rollo, 49. 31 TSN, 13 February 15, 20.
3 TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31. 32 Ibid., 11, 22.
4 Id., 32, 36, 42, 52.
5 Original Record (OR), 8.
6 Exhibit "H."
7 OR, 603-612. Per Judge Pedro N. Lagui.
8 One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails
to exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured
thereby, even if the child is technically a tresspasser in the premises.
The principal reason for the doctrine is that the condition or
appliance in question although its danger is apparent to those of
age, is so enticing or alluring to children of tender years as to
induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children. (Hidalgo
Enterprises, Inc. v. Balandan, et al., 488, 490 [1952].
9 TSN, 10 September 1987, 12.
10 Criminal Case No. 118986 filed with the Makati Metropolitan Trial
Court, Branch 61.
11 Exhibit "D."
12 Exhibit "F."
13 Supra note 1.
14 Supra note 2.
15 See Novo & Co. v. Ainsworth, 26 Phil. 380, 387 [1913].
16 BLACK'S LAW DICTIONARY, 5th ed. 1979, 14.
17 Mckee v. Intermediate Appellate Court, 211 SCRA 517, 539
[1992] citing Black's Law Dictionary, 5th ed., 1979, 930.
18 U.S. v. Barias, 23 Phil. 434, 437 [1912] citing Judge Cooley's work on
Torts, 3rd ed., 1324.
19 See Cavanaugh v. Jepson Iowa, 167 N.W. 2d 616, 623 [1969]. See
also Restatement, Second, Torts §8.
20 37 Phil. 809 [1918].
21 Ibid, 813.
22 TSN, 10 September 1987, 12, 13.
23 RICARDO J. FRANCISCO, III EVIDENCE, 1997, 591 citing Keefe v. State
of Arizona, 60 Ariz. 293; Stukas v. Warfield, Pratt, Howell Co., 175 N.W.
81, 85. [1919].
24 TSN, 10 September 1987, 8, 9, 11.
25 TSN, 2 October 1987, 9, 11.
26 See BPI Credit Corporation v. Court of Appeals, 204 SCRA 601, 608
[1991]; Geronimo v. Court of Appeals, 224 SCRA 494, 498 [1993].
27 Borillo v. Court of Appeals, 209 SCRA 130, 140-141 [1992]; McKee v.
Intermediate Appellate Court,supra note 16, 537; Salvador v. Court of
Appeals, 243 SCRA 239, 253 [1995].
29 Exhibit "D."
30 Exhibits "K," "M," and "N." The counter was made of heavy wood
measuring about 4 to 5 meters in height; 1 meter in length; and 2 1/2 to
EN BANC collected, and some one cut the wire and disengaged the body. Upon being taken
G.R. No. L-35283 November 5, 1932 to St. Luke's Hospital the child was pronounced dead.
The wire was an ordinary number 6 triple braid weather proof wire, such as
JULIAN DEL ROSARIO, plaintiff-appellant, is commonly used by the defendant company for the purpose of conducting
vs. electricity for lighting. The wire was cased in the usual covering, but this had
MANILA ELECTRIC COMPANY, defendant-appellee. been burned off for some distance from the point where the wire parted. The
Vicente Sotto for appellant. engineer of the company says that it was customary for the company to make a
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee. special inspection of these wires at least once in six months, and that all of the
company's inspectors were required in their daily rounds to keep a lookout for
STREET, J.: trouble of this kind. There is nothing in the record indicating any particular cause
This action was instituted by Julian del Rosario for the purpose of for the parting of the wire.lawphil.net
recovering damages from the Manila Electric Company for the death of his son, We are of the opinion that the presumption of negligence on the part of
Alberto del Rosario, resulting from a shock from a wire used by the defendant for the company from the breakage of this wire has not been overcome, and the
the transmission of electricity. The accident occurred on Dimas-Alang Street, in defendant is in our opinion responsible for the accident. Furthermore, when
the municipality of Caloocan, Province of Rizal. Damages are claimed in the notice was received at the Malabon station at 2.25 p. m., somebody should have
complaint in the amount of P30,000. Upon hearing the cause the trial court been dispatched to the scene of the trouble at once, or other measures taken to
absolved the defendant, and the plaintiff appealed. guard the point of danger; but more than an hour and a half passed before anyone
Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble representing the company appeared on the scene, and in the meantime this child
developed in a wire used by the defendant on Dimas-Alang Street for the purpose had been claimed as a victim.
of conducting electricity used in lighting the City of Manila and its suburbs. Jose It is doubtful whether contributory negligence can properly be imputed to
Noguera, who had charge of a tienda nearby, first noticed that the wire was the deceased, owing to his immature years and the natural curiosity which a child
burning and its connections smoking. In a short while the wire parted and one of would feel to do something out of the ordinary, and the mere fact that the
the ends of the wire fell to the ground among some shrubbery close to the way. deceased ignored the caution of a companion of the age of 8 years does not, in
As soon as Noguera took cognizance of the trouble, he stepped into a garage our opinion, alter the case. But even supposing that contributory negligence could
which was located nearby and asked Jose Soco, the timekeeper, to telephone the in some measure be properly imputed to the deceased, — a proposition upon
Malabon station of the Manila Electric Company that an electrical wire was which the members of the court do not all agree, — yet such negligence would not
burning at that place. Soco transmitted the message at 2.25 p.m. and received be wholly fatal to the right of action in this case, not having been the determining
answer from the station to the effect that they would send an inspector. From the cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359.)
testimony of the two witnesses mentioned we are justified in the conclusion that
information to the effect that the electric wire at the point mentioned had With respect to the amount of damages recoverable the majority of the
developed trouble was received by the company's servant at the time stated. At members of this court are of the opinion that the plaintiff is entitled to recover
the time that message was sent the wire had not yet parted, but from the P250 for expenses incurred in connection with the death and burial of the boy.
testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear For the rest, in accordance with the precedents cited in Astudillo vs. Manila
that the end of the wire was on the ground shortly after 3 p.m. Electric Company (55 Phil., 427), the majority of the court are of the opinion that
the plaintiff should recover the sum of P1,000 as general damages for loss of
At 4 p. m. the neighborhood school was dismissed and the children went service.
home. Among these was Alberto del Rosario, of the age of 9 years, who was a few
paces ahead of two other boys, all members of the second grade in the public The judgment appealed from is therefore reversed and the plaintiff will
school. These other two boys were Jose Salvador, of the age of 8, and Saturnino recover of the defendant the sum of P1,250, with costs of both instances. So
Endrina, of the age of 10. As the three neared the place where the wire was ordered.
down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, Avanceña, C.J., Malcolm, Ostrand, Villa-Real, Vickers, Imperial and Butte, JJ.,
happened to be the son of an electrician and his father had cautioned him never concur.
to touch a broken electrical wire, as it might have a current. Jose therefore
stopped Saturnino, telling him that the wire might be charged. Saturnino yielded
to this admonition and desisted from his design, but Alberto del Rosario, who was
somewhat ahead, said, I have for some time been in the habit of touching wires Separate Opinions
("Yo desde hace tiempo cojo alambres"). Jose Salvador rejoined that he should
into touch wires as they carry a current, but Alberto, no doubt feeling that he was ABAD SANTOS, J., concurring in part and dissenting in part:
challenged in the matter, put out his index finger and touch the wire. He
immediately fell face downwards, exclaiming "Ay! madre". The end of the wire
remained in contact with his body which fell near the post. A crowd soon
I concur in so far as the defendant company is held liable for the death of
the plaintiff's son, but I dissent in so far as the decision allows the plaintiff to
recover of the defendant the sum of P1,250 only.
It is well settled in this jurisdiction that an action will lie to recover
damages for death caused by the wrongful act. (Manzanares vs. Moreta, 38 Phil.,
821.) The question, however, arises as to the amount of damages recoverable in
this case. In criminal cases, this court has adopted the rule of allowing, as a
matter of course, the sum of P1,000 as indemnity to the heirs of the deceased.
Following that rule, the court has allowed the plaintiff in this case to recover the
sum of P1,000 as general damages for loss of service. Whatever may be the
reasons for the rule followed in criminal cases, I am of the opinion that those
reasons do not obtain in fixing the amount of the damages recoverable in the
present case. The indemnity allowed in criminal case is merely incidental to the
main object sought, which is the punishment of the guilty party. In a civil action,
the principal object is the recovery of damages for wrongful death; and where, as
in this case, the defendant is a corporation, not subject to criminal prosecution
for the act complained of, the question assumes a vastly different aspect. Both in
reason and in justice, there should be a distinction between the civil liability of
an ordinary person who, by wrongful act, has caused the death of another; and
the civil liability of a corporation, organized primarily for profit, which has caused
the death of a person by failure to exercise due care in the prosecution of its
business. The liability of such a corporation for damages must be regarded as a
part of the risks which it assumes when it undertakes to promote its own business;
and just as it is entitled to earn adequate profits from its business, so it should be
made adequately to compensate those who have suffered damage by its
Considering the circumstances of this case, I am of the opinion that the
plaintiff should recover the sum of P2,250 as damages.
FIRST DIVISION 1. Contusion with hematoma, left inguinal region and
G.R. No. L-33722 July 29, 1988 suprapubic region.
2. Contusion with ecchymosis entire scrotal region.
FEDERICO YLARDE and ADELAIDA DORONIO petitioners, 3. Lacerated wound, left lateral aspect of penile skin with
vs. phimosis
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents. 4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood
Buenaventura C. Evangelista for petitioners. and urine about 2 liters.
Modesto V. Cabanela for respondent Edgardo Aquino. 6. Fracture, simple, symphesis pubis
Manuel P. Pastor for respondent Mauro Soriano. 7. Ruptured (macerated) urinary bladder with body of bladder
almost entirely separated from its neck.
In this petition for review on certiorari seeking the reversal of the decision of the 1. Above were incurred by crushing injury.
Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. 2. Prognosis very poor.
Edgardo Aquino, et al.," a case which originated from the Court of First Instance (Sgd.) MELQUIADES A. BRAVO
of Pangasinan, We are again caned upon determine the responsibility of the
principals and teachers towards their students or pupils. Physician on Duty. 1
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Three days later, Novelito Ylarde died.
Primary School, a public educational institution located in Tayug, Pangasinan-
Ylarde's parents, petitioners in this case, filed a suit for damages against both
Private respondent Edgardo Aquino was a teacher therein. At that time, the
private respondents Aquino and Soriano. The lower court dismissed the complaint
school was fittered with several concrete blocks which were remnants of the old
on the following grounds: (1) that the digging done by the pupils is in line with
school shop that was destroyed in World War II. Realizing that the huge stones
their course called Work Education; (2) that Aquino exercised the utmost
were serious hazards to the schoolchildren, another teacher by the name of Sergio
diligence of a very cautious person; and (3) that the demise of Ylarde was due to
Banez started burying them one by one as early as 1962. In fact, he was able to
his own reckless imprudence. 2
bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered On appeal, the Court of Appeals affirmed the Decision of the lower court.
eighteen of his male pupils, aged ten to eleven, after class dismissal on October Petitioners base their action against private respondent Aquino on Article 2176 of
7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton the Civil Code for his alleged negligence that caused their son's death while the
concrete block in order to make a hole wherein the stone can be buried. The work complaint against respondent Soriano as the head of school is founded on Article
was left unfinished. The following day, also after classes, private respondent 2180 of the same Code.
Aquino called four of the original eighteen pupils to continue the digging. These
four pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Article 2176 of the Civil Code provides:
Ylarde, dug until the excavation was one meter and forty centimeters deep. At Art. 2176. Whoever by act or omission causes damage to
this point, private respondent Aquino alone continued digging while the pupils another, there being fault or negligence, is obliged to pay for
remained inside the pit throwing out the loose soil that was brought about by the the damage done. Such fault or negligence, if there is no pre-
digging. existing contractual relation between the parties, is called a
When the depth was right enough to accommodate the concrete block, private quasi-delict and is governed by the provisions of this Chapter.
respondent Aquino and his four pupils got out of the hole. Then, said private
On the other hand, the applicable provision of Article 2180 states:
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 Art. 2180. x x x
to borrow from Banez the key to the school workroom where he could get some xxx xxx xxx
rope. Before leaving. , private respondent Aquino allegedly told the children "not
to touch the stone." Lastly, teachers or heads of establishments of arts and trades
A few minutes after private respondent Aquino left, three of the four kids, shall be liable for damages caused by their pupils and students
Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any or apprentices, so long as they remain in their custody. 3
warning at all, the remaining Abaga jumped on top of the concrete block causing The issue to be resolved is whether or not under the cited provisions, both private
it to slide down towards the opening. Alonso and Alcantara were able to scramble respondents can be held liable for damages.
out of the excavation on time but unfortunately fo Ylarde, the concrete block As regards the principal, We hold that he cannot be made responsible for the
caught him before he could get out, pinning him to the wall in a standing position. death of the child Ylarde, he being the head of an academic school and not a
As a result thereof, Ylarde sustained the following injuries: 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 Left by themselves, it was but natural for the children to play around. Tired from
school who should be answerable for torts committed by their students. This the strenuous digging, they just had to amuse themselves with whatever they
Court went on to say that in a school of arts and trades, it is only the head of the found. Driven by their playful and adventurous instincts and not knowing the risk
school who can be held liable. In the same case, We explained: they were facing three of them jumped into the hole while the other one jumped
After an exhaustive examination of the problem, the Court has on the stone. Since the stone was so heavy and the soil was loose from the
come to the conclusion that the provision in question should digging, it was also a natural consequence that the stone would fall into the hole
apply to all schools, academic as well as non-academic. Where beside it, causing injury on the unfortunate child caught by its heavy weight.
the school is academic rather than technical or vocational in Everything that occurred was the natural and probable effect of the negligent
nature, responsibility for the tort committed by the student will acts of private respondent Aquino. Needless to say, the child Ylarde would not
attach to the teacher in charge of such student, following the have died were it not for the unsafe situation created by private respondent
first part of the provision. This is the general rule. In the case of Aquino which exposed the lives of all the pupils concerned to real danger.
establishments of arts and trades, it is the head thereof, and We cannot agree with the finding of the lower court that the injuries which
only he, who shall be held liable as an exception to the general resulted in the death of the child Ylarde were caused by his own reckless
rule. In other words, teachers in general shall be liable for the imprudence, It should be remembered that he was only ten years old at the time
acts of their students except where the school is technical in of the incident, As such, he is expected to be playful and daring. His actuations
nature, in which case it is the head thereof who shall be were natural to a boy his age. Going back to the facts, it was not only him but the
answerable. Following the canon of reddendo singula three of them who jumped into the hole while the remaining boy jumped on the
sinquilis 'teachers' should apply to the words "pupils and block. From this, it is clear that he only did what any other ten-year old child
students' and 'heads of establishments of arts and trades to the would do in the same situation.
word "apprentices." In ruling that the child Ylarde was imprudent, it is evident that the lower court
Hence, applying the said doctrine to this case, We rule that private respondent did not consider his age and maturity. This should not be the case. The degree of
Soriano, as principal, cannot be held liable for the reason that the school he care required to be exercised must vary with the capacity of the person
heads is an academic school and not a school of arts and trades. Besides, as endangered to care for himself. A minor should not be held to the same degree of
clearly admitted by private respondent Aquino, private respondent Soriano did care as an adult, but his conduct should be judged according to the average
not give any instruction regarding the digging. conduct of persons of his age and experience. 5 The standard of conduct to which
From the foregoing, it can be easily seen that private respondent Aquino can be a child must conform for his own protection is that degree of care ordinarily
held liable under Article 2180 of the Civil Code as the teacher-in-charge of the exercised by children of the same age, capacity, discretion, knowledge and
children for being negligent in his supervision over them and his failure to take experience under the same or similar circumstances. 6 Bearing this in mind, We
the necessary precautions to prevent any injury on their persons. However, as cannot charge the child Ylarde with reckless imprudence.
earlier pointed out, petitioners base the alleged liability of private respondent The court is not persuaded that the digging done by the pupils can pass as part of
Aquino on Article 2176 which is separate and distinct from that provided for in their Work Education. A single glance at the picture showing the excavation and
Article 2180. the huge concrete block 7 would reveal a dangerous site requiring the attendance
With this in mind, the question We need to answer is this: Were there acts and of strong, mature laborers and not ten-year old grade-four pupils. We cannot
omissions on the part of private respondent Aquino amounting to fault or comprehend why the lower court saw it otherwise when private respondent
negligence which have direct causal relation to the death of his pupil Ylarde? Our Aquino himself admitted that there were no instructions from the principal
answer is in the affirmative. He is liable for damages. 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
From a review of the record of this case, it is very clear that private respondent made mention of the fact that respondent Aquino decided all by himself to help
Aquino acted with fault and gross negligence when he: (1) failed to avail himself his co-teacher Banez bury the concrete remnants of the old school
of services of adult manual laborers and instead utilized his pupils aged ten to shop. 8 Furthermore, the excavation should not be placed in the category of
eleven to make an excavation near the one-ton concrete stone which he knew to school gardening, planting trees, and the like as these undertakings do not expose
be a very hazardous task; (2) required the children to remain inside the pit even the children to any risk that could result in death or physical injuries.
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 The contention that private respondent Aquino exercised the utmost diligence of
perilous area; (3) ordered them to level the soil around the excavation when it a very cautious person is certainly without cogent basis. A reasonably prudent
was so apparent that the huge stone was at the brink of falling; (4) went to a person would have foreseen that bringing children to an excavation site, and more
place where he would not be able to check on the children's safety; and (5) left so, leaving them there all by themselves, may result in an accident. An ordinarily
the children close to the excavation, an obviously attractive nuisance. 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
The negligent act of private respondent Aquino in leaving his pupils in such a adjacent to an excavation would present to the children. Moreover, a teacher
dangerous site has a direct causal connection to the death of the child Ylarde.
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
Narvasa Cruz, Griño-Aquino and Medialdea, JJ., concur.

1 Pages 2-3, Rollo.
2 Decision of the Court of First Instance of Pangasinan, page 22,
Original Record.
3 Article 2180 of the Civil Code.
4 G.R. No. L-47745, April 15, 1988.
5 Sangco Philippine Law on Torts and Damages, 1978 ed., p. 62.
6 Ibid, p. 123.
7 Exh. "B," Original Exhibit.
8 Decision of the Court of Appeals; page 33, Rollo.
EN BANC experiment was satisfactory. The next problem was to introduce into the
G.R. No. L-32611 November 3, 1930 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
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee, above and at a short distance from the compartment covering the engine. This
vs. tank was connected with the carburetor by a piece of tubing, which was
PHILIPPINE MOTORS CORPORATION, defendant-appellant. 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
Gibbs and McDonough for appellant. the engine compartment. The new fuel line and that already in use between the
Benj. S. Ohnick for appellee. 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
STREET, J.: the operator to start the engine on gasoline and then, after the engine had been
This action was instituted in the Court of First Instance of Manila by the operating for a few moments, to switch to the new fuel supply. lawphil.net
Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from the In the course of the preliminary work upon the carburetor and its
Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon connections, it was observed that the carburetor was flooding, and that the
hearing the cause the trial court gave judgment in favor of the plaintiff to recover gasoline, or other fuel, was trickling freely from the lower part to the carburetor
of the defendant the sum of P9,850, with interest at 6 per centum per annum to the floor. This fact was called to Quest's attention, but he appeared to think
from March 24,1927, the date of the filing of the complaint, until satisfaction of lightly of the matter and said that, when the engine had gotten to running well,
the judgment, with costs. From this judgment the defendant appealed. the flooding would disappear.
The plaintiff and defendant are domestic corporations; and at the time of After preliminary experiments and adjustments had been made the boat
the incident with which we are here concerned, H.D. Cranston was the was taken out into the bay for a trial run at about 5 p.m. or a little later, on the
representative of the plaintiff in the City of Manila. At the same time the plaintiff evening of January 30,1925. The first part of the course was covered without any
was the registered owner of the motor schooner Gwendoline, which was used in untoward development, other than he fact that the engine stopped a few times,
the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if owing no doubt to the use of an improper mixture of fuel. In the course of the
practicable, to have the engine on the Gwendoline changed from a gasoline trial Quest remained outside of the engine compartment and occupied himself
consumer to a crude oil burner, expecting thereby to effect economy in the cost with making distillate, with a view to ascertaining what proportion of the two
of running the boat. He therefore made known his desire to McLeod & Co., a firm elements would give best results in the engine.
dealing in tractors, and was told by Mc Kellar, of said company, that he might As the boat was coming in from this run, at about 7:30 p.m. and when
make inquiries of the Philippine Motors Corporations, which had its office on passing near Cavite, the engine stopped, and connection again had to be made
Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of with the gasoline line to get a new start. After this had been done the mechanic,
the Philippine Motors Corporation and had a conference with C.E. Quest, its or engineer, switched to the tube connecting with the new mixture. A moment
manager, who agreed to do the job, with the understanding that payment should later a back fire occurred in the cylinder chamber. This caused a flame to shoot
be made upon completion of the work. back into the carburetor, and instantly the carburetor and adjacent parts were
The Philippine Motors Corporation was at this time engaged in business as covered with a mass of flames, which the members of the crew were unable to
an automobile agency, but, under its charter, it had authority to deal in all sorts subdue. They were therefore compelled, as the fire spread, to take to a boat, and
of machinery engines and motors, as well as to build, operate, buy and sell the their escape was safely effected, but the Gwendoline was reduced to a mere
same and the equipment therof. Quest, as general manager, had full charge of hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The
the corporations in all its branches. value of the boat, before the accident occured, as the court found, was P10,000.
As a result of the aforesaid interview, Quest, in company with Cranston, A study of the testimony lead us to the conclusion that the loss of this boat
visited the Gwendoline while it lay at anchor in the Pasig River, and the work of was chargeable to the negligence and lack of skill of Quest. The temporary tank in
effecting the change in the engine was begun and conducted under the which the mixture was prepared was apparently at too great an elevation from
supervision of Quest, chiefly by a mechanic whom Quest took with him to the the carburetor, with the result that when the fuel line was opened, the
boat. In this work Quest had the assistance of the members of the crew of hydrostatic pressure in the carburetor was greater than the delicate parts of the
the Gwendoline, who had been directed by Cranston to place themselves under carburetor could sustain. This was no doubt the cause of the flooding of the
Quest's directions. carburetor; and the result was that; when the back fire occurred, the external
Upon preliminary inspection of the engine, Quest came to the conclusion parts of the carburetor, already saturated with gasoline, burst into flames,
that the principal thing necessary to accomplish the end in view was to install a whence the fire was quickly communicated to the highly inflammable material
new carburetor, and a Zenith carburetor was chosen as the one most adapted to near-by. Ordinarily a back fire from an engine would not be followed by any
the purpose. After this appliance had been installed, the engine was tried with disaster, but in this case the leak along the pipe line and the flooding of the
gasoline as a fuel, supplied from the tank already in use. The result of this 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 corporation and had gone back to the United States. Upon these facts, the
improperly mixed. defendant bases the contention that the action should be considered stale. It is
In this connection it must be remembered that when a person holds himself sufficient reply to say that the action was brought within the period limited by
out as being competent to do things requiring professional skill, he will be held the statute of limitations and the situation is not one where the defense of laches
liable for negligence if he fails to exhibit the care and skill of one ordinarily can be properly invoked.
skilled in the particular work which he attempts to do. The proof shows that It results that the judgment appealed from, awarding damages to the
Quest had had ample experience in fixing the engines of automobiles and plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so
tractors, but it does not appear that he was experienced in the doing of similar ordered, with costs against the appellant.
work on boats. For this reason, possibly the dripping of the mixture form the tank Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ.,
on deck and the flooding of the carburetor did not convey to his mind an concur.
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 theGwendoline 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
EN BANC On the trial of a criminal case the question relates to the tendency of
G.R. No. L-12858 January 22, 1918 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
THE UNITED STATES, plaintiff-appellee, of the trial judge which a court of errors will not interfere with, unless it
vs. manifestly appear that the testimony has no legitimate bearing upon the
SANTIAGO PINEDA, defendant-appellant. question at issue, and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence,
Francisco and Lualhati for appellant. either from the nature of the inquiry or the failure of direct proof,
Acting Attorney-General Paredes for appellee. objections to the testimony on the ground of irrelevancy are not favored.
MALCOLM, J.: Evidence is admissible in a criminal action which tends to show motive,
although it tends to prove the commission of another offense by the
This appeal requires a construction and an application, for the first time, of the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
penal provisions of the Pharmacy Law.
The second assignment of error is that the lower court erred in finding that the
Santiago Pineda, the defendant, is a registered pharmacist of long standing and substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was
the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of barium chlorate and not potassium chlorate. The proof demonstrates the
Manila. One Feliciano Santos, having some sick horses, presented a copy of a contrary.
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 The third and fourth assignments of error that the lower court erred in finding
prescription read — "clorato de potasa — 120 gramos — en seis papelitos de 20 that the accused has been proved guilty beyond a reasonable doubt of an
gramos, para caballo." Under the supervision of Pineda, the prescription was infraction of Act No. 597, section 17, as amended. The third assignment contains
prepared and returned to Santos in the form of six papers marked, "Botica Pineda the points we should consider, including, we may remark, a somewhat difficult
— Clorato potasa — 120.00 — en seis papeles — para caballo — Sto. Cristo 442, question concerning which the briefs have given little assistance.
444, Binondo, Manila." Santos, under the belief that he had purchased the The Pharmacy Law was first enacted as Act No. 597, was later amended by Act
potassium chlorate which he had asked for, put two of the packages in water the Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative
doses to two of his sick horses. Another package was mixed with water for Code. The law provides for a board of pharmaceutical examiners, and the
another horse, but was not used. The two horses, to which had been given the examination and registration of pharmacists, and finally contains sundry
preparation, died shortly afterwards. Santos, thereupon, took the three remaining provisions relative to the practice of pharmacy. High qualification for applicants
packages to the Bureau of Science for examination. Drs. Peña and Darjuan, of the for the pharmaceutical; examination are established. The program of subjects for
Bureau of Science, on analysis found that the packages contained not potassium the examination is wide. Responsibility for the quality of drugs is fixed by section
chlorate but barium chlorate. At the instance of Santos, the two chemists also 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section
went to the drug store of the defendant and bought potassium chlorate, which 751), in the following term:
when analyzed was found to be barium chlorate. (Barium chlorate, it should be
Every pharmacist shall be responsible for the quality of all drugs,
noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian,
chemicals, medicines, and poisons he may sell or keep for sale; and it
performed an autopsy on the horses, and found that death was the result of
shall be unlawful for any person whomsoever to manufacture, prepare,
sell, or administer any prescription, drug, chemical, medicine, or poison
Four assignments of error are made. The first is that the lower court erred in under any fraudulent name, direction, or pretense, or to adulterate any
admitting the testimony of the chemist Pena and Darjuan as to their purchase of drug, chemical, medicine, or poison so used, sold or offered for sale. Any
potassium chlorate at the drug store of the accused, which substance proved on drug, chemical, medicine, or poison shall be held to be adulterated or
analysis to be barium chlorate. What the appellant is here relying on is the deteriorated within the meaning of this section if it differs from the
maxim res inter alios acta. As a general rule, the evidence of other offenses standard of quality or purity given in the United States Pharmacopoeia.
committed by a defendant is inadmissible. But appellant has confused this maxim
The same section of the Pharmacy Law also contains the following penal
and this rule with certain exceptions thereto. The effort is not to convict the
provision: "Any person violating the provisions of this Act shall, upon conviction,
accused of a second offense. Nor is there an attempt to draw the mind away from
be punished by a fine of not more than five hundred dollar." The Administrative
the point at issue and thus to prejudice defendant's case. The purpose is to
Code, section 2676, changes the penalty somewhat by providing that:
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 Any person engaging in the practice of pharmacy in the Philippine Islands
good faith is possibly excluded, negligence is intensified, and fraudulent intent contrary to any provision of the Pharmacy Law or violating any provisions
may even be established. It has been said that there is no better evidence of of said law for which no specific penalty s provided shall, for each
negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The offense, be punished by a fine not to exceed two hundred pesos, or by
United States Supreme Court has held that:
imprisonment for not more than ninety days, or both, in the discretion of calculated to produce a certain effect, in place of another sent for and
the court. designed to produce a different effect. If he does these things, he cannot
These are the provisions of law, pursuant to which prosecution has been initiated escape civil responsibility, upon the alleged pretext that it was an
and which it is now incumbent upon us to construe. accidental or an innocent mistake; that he had been very careful and
particular, and had used extraordinary care and diligence in preparing or
Turning to the law, certain points therein as bearing on our present facts must be compounding the medicines as required, etc. Such excuses will not avail
admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.)
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 Under the other conception, in which the proof of negligence is considered as
"fraudulent name." It is the one word "fraudulent" which has given the court material, where a customer calls upon a druggist for a harmless remedy, delivery
trouble. What did the Legislature intend to convey by this restrictive adjective? of a poisonous drug by mistake by the druggist is prima facienegligence, placing
the burden on him to show that the mistake was under the circumstances
Were we to adhere to the technical definition of fraud, which the appellant consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,) The
vigorously insists upon, it would be difficult, if not impossible, to convict any druggist cannot, for example in filling a prescription calling for potassium chlorate
druggist of a violation of the law. The prosecution would have to prove to a give instead to the customer barium chlorate, a poison, place this poison in a
reasonable degree of certainty that the druggist made a material representation; package labeled "potassium chlorate," and expect to escape responsibility on plea
that it was false; that when he made it he knew that it was false or made it of mistake. His mistake, under the most favorable aspect for himself, was
recklessly without any knowledge of its truth and as positive assertion; that he negligence. So in a case where a druggist filled an order for calomel tablets with
made it with the intention that it should be acted upon by the purchaser; that the morphine and placed the morphine in a box labeled calomel, it was said:
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 It is not suggested, nor can we apprehend that it is in any wise probable,
subject of fraud would strip the law of at least much of its force. It would leave that the act of furnishing the wrong drug in this case was willful. If it was
the innocent purchaser of drugs, who must blindly trust in the good faith and furnished by the clerk, it was undoubtedly a mistake and unintentional.
vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should However, it was a mistake of the gravest kind, and of the most disastrous
not, therefore, without good reason so devitalize the law. 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
The profession of pharmacy, it has been said again and again, is one demanding relied upon by those dealing with him to exercise that high degree of
care and skill. The responsibility of the druggist to use care has been variously caution and care called for by the peculiarly dangerous nature of this
qualified as "ordinary care," "care of a special high degree," "the highest degree of business, can be heard to say that his mistakes by which he furnishes a
care known to practical men." Even under the first conservative expression, customer the most deadly of drugs for those comparatively harmless is
"ordinary care" with reference to the business of a druggist, the Supreme Court of not, in and of itself, gross negligence, and that of an aggravated form.
Connecticut has said must be held to signify "the highest practicable degree of (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)
prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards
consistent with the reasonable conduct of the business, in order that human life The rule of caveat emptor cannot apply to the purchase and sale of drugs. The
may not be constantly be exposed to the danger flowing from the substitution of vendor and the vendee do not stand at arms length as in ordinary transactions. An
deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn., imperative duty is on the druggist to take precautions to prevent death or serious
235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; injury to anyone who relies on his absolute honesty and peculiar leaning. The
Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is nature of drugs is such that examination would not avail the purchaser anything.
denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 It would be idle mockery for the customer to make an examination of a compound
L. R. A., 428.) In other words, the care required must be commensurate with the of which he can know nothing. Consequently, it must be that the druggist
danger involved, and the skill employed must correspond with the superior warrants that he will deliver the drug called for.
knowledge of the business which the law demands. In civil cases, the druggist is made liable for any injury approximately resulting
Under one conception, and it should not be forgotten that the case we consider from his negligence. If B negligently sells poison under the guise of a beneficial
are civil in nature, the question of negligence or ignorance is irrelevant. The drug to A, he is liable for the injury done to A. In a case, which has repeatedly
druggist is responsible as an absolute guarantor of what he sells. In a decision been termed the leading case on the subject and which has been followed by the
which stands alone, the Supreme Court of Kentucky said: United States Supreme Court, it was said, "Pharmacists or apothecaries who
compound or sell medicines, if they carelessly label a poison as a harmless
As applicable to the owners of drug stores, or persons engaged in vending medicine, and sent it so labeled into the market, are liable to all persons who,
drugs and medicines by retail, the legal maxim should be reversed. without fault on their part, are injured by using it as such medicine, in
Instead of caveat emptor, it should be caveat venditor. That is to say, consequence of the false label; the rule being that the liability in such a case
let him be certain that he does not sell to a purchaser or send to a arises not out of any contract or direct privity between the wrong-doer and the
patient one drug for another, as arsenic for calomel, cantharides for or person injured, but out of the duty which the law imposes on him to avoid acts in
mixed with snakeroot and Peruvian bark, or even one innocent drug, 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
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.
Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ., concur.
THIRD DIVISION The controversy in this case arose from the following facts as found by the
G.R. No. 102383 November 26, 1992 Arbitration Committee of respondent Philippine Clearing House Corporation in
Arbicom Case No. 83-029 entitled Bank of the Philippine Island v. China Banking
BANK OF THE PHILIPPINE ISLANDS, petitioner, Corporation:
vs. The story underlying this case began in the afternoon of October
THE HON. COURT OF APPEALS (SEVENTH JUDICIAL), HON. JUDGE REGIONAL 9, 1981 with a phone call to BPI's Money Market Department by a
TRIAL COURT OF MAKATI, BRANCH 59, CHINA BANKING CORP., and PHILIPPINE woman who identified herself as Eligia G. Fernando who had a
CLEARING HOUSE CORPORATION, respondents. money market placement as evidenced by a promissory note
with a maturity date of November 11, 1981 and a maturity value
GUTIERREZ, JR., J.: of P2,462,243.19. The caller wanted to preterminate the
The present petition asks us to set aside the decision and resolution of the Court placement, but Reginaldo Eustaquio, Dealer Trainee in BPI's
of Appeals in CA-G.R. SP No. 24306 which affirmed the earlier decision of the Money Market Department, who received the call and who
Regional Trial Court of Makati, Branch 59 in Civil Case No. 14911 entitled Bank of happened to be alone in the trading room at the time, told her
the Philippine Islands v. China Banking Corporation and the Philippine Clearing "trading time" was over for the day, which was a Friday, and
House Corporation, the dispositive portion of which reads: suggested that she call again the following week. The
WHEREFORE, premises considered, judgment is hereby rendered promissory note the caller wanted to preterminate was a roll-
dismissing petitioner-appellant's (BPI's) appeal and affirming the over of an earlier 50-day money market placement that had
appealed order of August 26, 1986 (Annex B of BPI's Petition) matured on September 24, 1981.
with modification as follows: Later that afternoon, Eustaquio conveyed the request for
1. Ordering the petitioner-appellant (BPI) to pay respondent- pretermination to the officer who before had handled Eligia G.
appellee (CBC): Fernando's account, Penelope Bulan, but Eustaquio was left to
attend to the pretermination process.
(a) the amount of One Million Two Hundred Six Thousand, Six
Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58) The next Monday, October 12, 1981, in the morning, the caller
with interest at the legal rate of twelve percent (12%) per of the previous Friday followed up with Eustaquio, merely by
annum starting August 26, 1986, the date when the order of the phone again, on the pretermination of the placement. Although
PCHC Board of Directors was issued until the full amount is not familiar with the voice of the real Eligia G. Fernando,
finally paid; and Eustaquio "made certain" that the caller was the real Eligia G.
Fernando by "verifying" that the details the caller gave about
(b) the amount of P150,000.00 representing attorney's fees; the placement tallied with the details in "the ledger/folder" of
2. BPI shall also bear 75% or P5,437.50 and CBC, 25% or the account. Eustaquio knew the real Eligia G. Fernando to be
P1,812.50 of the cost of the arbitration proceedings amounting the Treasurer of Philippine American Life Insurance Company
to P7,250.00; (Philamlife) since he was handling Philamlife's corporate money
market account. But neither Eustaquio nor Bulan who originally
3. The ownership of respondent-appellee (CBC) of the other sum
handled Fernando's account, nor anybody else at BPI, bothered
of One Million Two Hundred Six Thousand Six Hundred Seven
to call up Fernando at her Philamlife office to verify the request
Pesos and Fifty Eight Centavos (P1,206,607.58) previously
for pretermination.
credited to its clearing account on August 12, 1983 per PCHC
Stockholders' Resolution No. 6083 dated April 6, 1983, is hereby Informed that the placement would yield less than the maturity
confirmed. value because of its pretermination, the caller insisted on the
pretermination just the same and asked that two checks be
4. The PCHC is hereby directed to immediately debit the
issued for the proceeds, one for P1,800,000.00 and the second
clearing account of BPI the sum of One Million Two Hundred Six
for the balance, and that the checks be delivered to her office
Thousand Six Hundred Pesos and Fifty Eight Centavos
at Philamlife.
(P1,206,607.58) together with its interest as decreed in
paragraph 1 (a) herein above stated and credit the same to the Eustaquio, thus, proceeded to prepare the "purchase order slip"
clearing account of CBC; for the requested pretermination as required by office
procedure, and from his desk, the papers, following the
5. The PCHC's counterclaim and cross-claim are dismissed for
processing route, passed through the position analyst, securities
lack of merit; and
clerk, verifier clerk and documentation clerk, before the two
6. With costs against the petitioner-appellant. (Rollo, pp. 161- cashier's checks, nos. 021759 and 021760 for P1,800,000.00 and
162) P613,215.16, respectively, both payable to Eligia G. Fernando,
covering the preterminated placement, were prepared. The two application to the New Accounts Section for processing. As
cashier's checks, together with the papers consisting of the finally proceeds, the application form shows the signature of
money market placement was to be preterminated and the "Eligia G. Fernando", "her" date of birth, sex, civil status,
promissory note (No. 35623) to be preterminated, were sent to nationality, occupation ("business woman"), tax account
Gerlanda E. de Castro and Celestino Sampiton, Jr., Manager and number, and initial deposit of P10,000.00. This final approval of
Administrative Assistant, respectively, in BPI's Treasury the new current account is indicated on the application form by
Operations Department, both authorized signatories for BPI, the initials of Regina G. Dy, Cashier, who did not interview the
who signed the two checks that very morning. Having been new client but affixed her initials on the application form after
singed, the checks now went to the dispatcher for delivery. reviewing it. The new current account was given the number:
Later in the same morning, however, the same caller changed 26310-3.
the delivery instructions; instead of the checks being delivered The following day, October 14, 1981, the woman holding herself
to her office at Philamlife, she would herself pick up the checks out as Eligia G. Fernando deposited the two checks in
or send her niece, Rosemarie Fernando, to pick them up. controversy with Current Account No. 126310-3. Her
Eustaquio then told her that if it were her niece who was going endorsement on the two checks was found to conform with the
to get the checks, her niece would have to being a written depositor's specimen signature. CBC's guaranty of prior
authorization from her to pick up the checks. This telephone endorsements and/or lack of endorsement was then stamped on
conversation ended with the caller's statement that "definitely" the two checks, which CBC forthwith sent to clearing and which
it would be her niece, Rosemarie Fernando, who would pick up BPI cleared on the same day.
the checks. Thus, Eustaquio had to hurriedly go to the Two days after, withdrawals began on Current Account No.
dispatcher, Bernardo Laderas, to tell him of the new delivery 26310-3: On October 16, 1981, by means of Check No. 240005
instructions for the checks; in fact, he changed the delivery dated the same day for P1,000,000.00, payable to "cash", which
instruction on the purchase order slip, writing thereon the woman holding herself out as Eligia G. Fernando encashed
"Rosemarie Fernando release only with authority to pick up. over the counter, and Check No. 240003 dated October 15, 1981
It was, in fact Rosemarie Fernando who got the two checks from for P48,500.00, payable to "cash" which was received through
the dispatcher, as shown by the delivery receipt. Actually, as it clearing from PNB Pasay Branch; on October 19, 1981, by means
turned out, the same impersonated both Eligia G. Fernando and of Check No. 240006 dated the same day for P1,000,000.00,
Rosemarie Fernando. Although the checks represented the payable to "cash," which the woman identifying herself as Eligia
termination proceeds of Eligia G. Fernando's placement, not just G. Fernando encashed over the counter; on October 22, 1981,
a roll-over of the placement, the dispatcher failed to get or to by means of Check No. 240007 dated the same day for
require the surrender of the promissory note evidencing the P370,000.00, payable to "cash" which the woman herself also
placement. There is also no showing that Eligia G. Fernando's encashed over the counter; and on November 4, 1981, by means
purported signature on the letter requesting the pretermination of Check No. 240001 dated November 3, 1981 for P4,100.00,
and the latter authorizing Rosemarie Fernando to pick up the payable to "cash," which was received through clearing from Far
two checks, both of which letters were presumably handed to East Bank.
the dispatcher by Rosemarie Fernando, was compared or All these withdrawals were allowed on the basis of the
verified with Eligia G. Fernando's signature in BPI's file. Such verification of the drawer's signature with the specimen
purported signature has been established to be forged although signature on file and the sufficiency of the funds in the account.
it has a "close similarity" to the real signature of Eligia G. However, the balance shown in the computerized teller terminal
Fernando (TSN of January 15, 1985, pp. 24 and 26). when a withdrawal is serviced at the counter, unlike the ledger
The story's scene now shifted when, in the afternoon of October or usual statement prepared at month-end, does not show the
13, 1981, a woman who represented herself to be Eligia G. account's opening date, the amounts and dates of deposits and
Fernando applied at CBC's Head Office for the opening of a withdrawals. The last withdrawal on November 4, 1981 left
current account. Current Account No. 26310-3 with a balance of only P571.61.
She was accompanied and introduced to Emily Sylianco Cuaso, The day of reckoning came on November 11, 1981, the maturity
Cash Supervisor, by Antonio Concepcion whom Cuaso knew to date of Eligia G. Fernado's money market placement with BPI,
have opened, earlier that year, an account upon the when the real Eligia G. Fernando went to BPI for the roll-over of
introduction of Valentin Co, a long-standing "valued client" of her placement. She disclaimed having preterminated her
CBC. What Cuaso indicated in the application form, however, placement on October 12, 1981. She executed an affidavit
was that the new client was introduced by Valentin Co, and with stating that while she was the payee of the two checks in
her initials on the form signifying her approval, she referred the controversy, she never received nor endorsed them and that her
purported signature on the back of the checks was not hers but decision so that the Complaint of BPI is dismissed, and on the
forged. With her surrender of the original of the promissory note Counterclaim of CBC, BPI is sentenced to pay CBC the sum of
(No. 35623 with maturity value of P2,462,243.19) evidencing the P1,206,607.58. In view of the facts, no interest nor attorney's
placement which matured that day, BPI issued her a new fees are awarded. BPI shall also bear 75% or P5,437.50 and CBC,
promissory note (No. 40314 with maturity date of December 23, 25% or P1,812.50 of the cost of the Arbitration proceedings
1981 and maturity value of P2,500.266.77) to evidence a roll- amounting to P7,250.00.
over of the placement. The PCHC is hereby directed to debit the clearing account of
On November 12, 1981, supported by Eligia G. Fernando's the BPI the sum of P1,206,607.58 and credit the same to that of
affidavit, BPI returned the two checks in controversy to CBC for CBC. The cost of Arbitration proceedings are to be debited from
the reason "Payee's endorsement forged". A ping-pong started the accounts of the parties in the proportion above stated.
when CBC, in turn, returned the checks for reason "Beyond (Rollo, pp. 112-113)
Clearing Time", and the stoppage of this ping-pong, as we BPI then filed a petition for review of the abovestated order with the Regional
mentioned at the outset, prompted the filing of this case. Trial Court of Makati. The trial court dismissed the petition but modified the
Investigation of the fraud by the Presidential Security Command order as can be gleaned from the dispositive portion of its decision quoted earlier.
led to the filing of criminal actions for "Estafa Thru Falsification Not satisfied with the trial court's decision petitioner BPI filed with us a petition
of Commercial Documents" against four employees of BPI, for review on certiorari under Rule 45 of the Rules of Court. The case was
namely Quirino Victorio, Virgilio Gayon, Bernardo Laderas and docketed as G.R. No. 96376. However, in a Resolution dated February 6, 1991, we
Jorge Atayan, and the woman who impersonated Eligia G. referred the case to the Court of Appeals for proper determination and
Fernando, Susan Lopez San Juan. Victorio and Gayon were both disposition. The appellate court affirmed the trial court's decision.
bookkeepers in BPI's Money Market Operations Department,
Laderas was a dispatcher in the same department. . . . (Rollo, Hence, this petition.
pp. 74-79) In a resolution dated May 20, 1992 we gave due course to the petition:
The Arbitration Committee ruled in favor of petitioner BPI. The dispositive portion Petitioner BPI now asseverates:
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 II
implemented, up to the date of actual payment. CONTRARY TO THE RULING OF THE RESPONDENT COURT, THE
Costs of suit in the total amount of P7,250.00 are to be assessed PROXIMATE CAUSE FOR THE LOSS OF THE PROCEEDS OF THE
the litigant banks in the following proportion: TWO CHECKS IN QUESTION WAS THE NEGLIGENCE OF THE
a) Plaintiff BPI —– P1,812.50
Total Assessment — P7,250.00 III
conformably with PCHC Resolution Nos. 46-83 dated October 25, THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN
1983 and 4-85 dated February 25, 1985. FAILING TO APPRECIATE THE FACT THAT CBC HAD THE "LAST
The PCHC is hereby directed to effect the corresponding entries CLEAR CHANCE" OF AVOIDING THE LOSS OCCASIONED BY THE
to the litigant banks' clearing accounts in accordance with the FRAUDULENT ACTS INVOLVED IN THE INSTANT CASE. (Rollo, p.
foregoing decision. (Rollo, pp. 97-98) 24)
However, upon motion for reconsideration filed by respondent CBC, the Board of The main issues raised in the assignment of errors are: When a bank (in this case
Directors of the PCHC reversed the Arbitration Committee's decision in its Order, CBC) presents checks for clearing and payment, what is the extent of the bank's
the dispositive portion of which reads: 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
WHEREFORE, the Board hereby reconsiders the Decision of the bank (in this case BPI) claim reimbursement from the collecting bank [CBC] which
Arbitration Committee dated March 24, 1986 in Arbicom Case
No. 183-029 and in lieu thereof, one is rendered modifying the
earlier paid the proceeds of the checks after the same checks were cleared by The facts in the Banco de Oro case are as follows: Sometime in March, April, May
petitioner BPI through the PCHC? and August 1983 Equitable Banking Corporation through its Visa Card Department
Anent the first issue, petitioner BPI contends that respondent CBC's clear drew six (6) crossed Manager's check with the total amount of Forty Five Thousand
warranty that "all prior endorsements and/or lack of endorsements guaranteed" Nine Hundred and Eighty Two Pesos and Twenty Three Centavos (P45,982.23) and
stamped at the back of the checks was an unrestrictive clearing guaranty that all payable to certain member establishments of Visa Card. Later, the checks were
prior endorsements in the checks are genuine. Under this premise petitioner BPI deposited with Banco de Oro to the credit of its depositor, a certain Aida Trencio.
asserts that the presenting or collecting bank, respondent CBC, had an Following normal procedures, and after stamping at the back of the checks the
unquestioned liability when it turned out that the payee's signature on the checks endorsements: "All prior and/or lack of endorsements guaranteed" Banco de Oro
were forged. With these circumstances, petitioner BPI maintains that sent the checks for clearing through the PCHC. Accordingly, Equitable Banking
considerations of relative negligence becomes totally irrelevant. 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.
In sum, petitioner BPI theorizes that the Negotiable Instruments Law, specifically When Equitable Banking Corporation discovered that the endorsements at the
Section 23 thereof is not applicable in the light of the absolute liability of the back of the checks and purporting to be that of the payees were forged it
representing or collecting bank as regards forged endorsements in consonance presented the checks directly to Banco de Oro for reimbursement. Banco de Oro
with the clearing guarantee requirement imposed upon the presenting or refused to reimburse Equitable Banking Corporation for the value of the checks.
collecting banks "as it is worded today." Equitable Banking Corporation then filed a complaint with the Arbitration
Petitioner BPI first returned to CBC the two (2) checks on the ground that "Payee's Committees of the PCHC. The Arbiter, Atty. Ceasar Querubin, ruled in favor of
endorsement (was) forged" on November 12, 1981. At that time the clearing Equitable Banking Corporation. The Board of Directors of the PCHC affirmed the
regulation then in force under PCHC's Clearing House Rules and Regulations as Arbiter's decision. A petition for review of the decision filed by Banco de Oro with
revised on September 19, 1980 provides: the Regional Trial Court of Quezon City was dismissed. The decision of the PCHC
was affirmed in toto.
Items which have been the subject of material alteration or
items bearing a forged endorsement when such endorsement is One of the main issues threshed out in this case centered on the effect of Banco
necessary for negotiation shall be returned within twenty four de Oro's (representing or collecting bank) guarantee of "all prior endorsements
(24) hours after discovery of the alteration or the forgery, but in and/or lack of endorsements" at the back of the checks. A corollary issue was the
no event beyond the period prescribed by law for the filing of a effect of the forged endorsements of the payees which were late discovered by
legal action by the returning bank/branch institution or entity the Equitable Banking Corporation (drawee bank) resulting in the latter's claim for
against the bank/branch, institution or entity sending the same. reimbursement of the value of checks after it paid the proceeds of the checks.
(Section 23) We agreed with the following disquisition of the Regional Trial Court, to wit:
In the case of Banco de Oro Savings and Mortgage Bank v. Equitable Banking Anent petitioner's liability on said instruments, this court is in
Corporation (157 SCRA 188 [1988]) the clearing regulation (this is the present full accord with the ruling of the PCHC Board of Directors that:
clearing regulation) at the time the parties' dispute occurred was as follows:
In presenting the checks for clearing and for payment, the
Sec. 21. . . . . defendant made an express guarantee on the validity of "all
Items which have been the subject of material alteration or prior endorsements." Thus, stamped at the back of the checks
items bearing forged endorsement when such endorsement is are the defendant's clear warranty: ALL PRIOR ENDORSEMENTS
necessary for negotiation shall be returned by direct AND/OR LACK OF ENDORSEMENTS GUARANTEED. Without such
presentation or demand to the Presenting Bank and not through warranty, plaintiff would not have paid on the checks.
the regular clearing house facilities within the period prescribed No amount of legal jargon can reverse the clear meaning of
by law for the filing of a legal action by the returning defendant's warranty. As the warranty has proven to be false
bank/branch, institution or entity sending the same. and inaccurate, the defendant is liable for any damage arising
It is to be noted that the above-cited clearing regulations are substantially the out of the falsity of its representation.
same in that it allows a return of a check "bearing forged endorsement when such The principle of estoppel, effectively prevents the defendant
endorsement is necessary for negotiation" even beyond the next regular clearing from denying liability for any damage sustained by the plaintiff
although not beyond the prescriptive period "for the filing of a legal action by the which, relying upon an action or declaration of the defendant,
returning bank." paid on the checks. The same principle of estoppel effectively
Bearing in mind this similarity in the clearing regulation in force at the time the prevents the defendant from denying the existence of the
forged checks in the present case and the Banco de Oro case were dishonored and checks. (pp. 10-11, Decision, pp. 43-44, Rollo) (at pp. 194-195)
returned to the presenting or collecting banks, we can be guided by the principles We also ruled:
enunciated in the Banco de Oro case on the relevance of negligence of the
drawee vis-a-vis the forged checks.
Apropos the matter of forgery in endorsements, this Court has rules and regulations are null and void. Thus, we held Shell Philippines,
presently succintly emphasized that the collecting bank or last Inc. v. Central Bank of the Philippines (162 SCRA 628 [1988]):
endorser generally suffers the loss because it has the duty to . . . while it is true that under the same law the Central Bank
ascertain the genuineness of all prior endorsements considering was given the authority to promulgate rules and regulations to
that the act of presenting the check for payment to the drawee implement the statutory provision in question, we reiterate the
is an assertion that the party making the presentment has done principle that this authority is limited only to carrying into
its duty to ascertain the genuineness of the endorsements. This effect what the law being implemented provides.
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 In People v. Maceren (79 SCRA 450, 458 and 460), this Court
discovers that the signature of the payee was forged after it has ruled that:
paid the amount of the check to the holder thereof, it can Administrative regulations adopted under legislative authority
recover the amount paid from the collecting bank. by a particular department must be in harmony with the
xxx xxx xxx provisions of the law, and should be for the sole purpose of
carrying into effect its general provisions. By such regulations,
The point that comes uppermost is whether the drawee bank of course, the law itself cannot be extended. (U.S. v. Tupasi
was negligent in failing to discover the alteration or the Molina, supra). An administrative agency cannot amend an act
forgery. (Emphasis supplied) of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon v.
xxx xxx xxx Members of the Board of Administrators, L-25619, June 30,
The court reproduces with approval the following disquisition of 1970, 33 SCRA 585; Manuel v. General Auditing Office, L-28952,
the PCHC in its decision. December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-21906,
August 29, 1969, 29 SCRA 350).
xxx xxx xxx
The rule-making power must be confined to details for
III. Having Violated Its Warranty On Validity Of All regulating the mode or proceeding to carry into effect the law
Endorsements, Collecting Bank Cannot Deny Liability To Those as it has been enacted. The power cannot be extended to
Who Relied On Its Warranty. amending or expanding the statutory requirements or to
xxx xxx xxx embrace matters not covered by the statute. Rules that subvert
the statute cannot be sanctioned. (University of Santo Tomas v.
The damage that will result if judgment is not rendered for the
Board of Tax Appeals, 93 Phil. 376, 382,citing 12 C.J. 845-46. as
plaintiff is irreparable. The collecting bank has privity with the
to invalid regulations, see Collector of Internal Revenue v.
depositor who is the principal culprit in this case. The
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del
defendant knows the depositor; her address and her
Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51
history. Depositor is defendant's client. It has taken a risk on its
SCRA 340, 349).
depositor when it allowed her to collect on the crossed-checks.
xxx xxx xxx
Having accepted the crossed checks from persons other than
the payees, the defendant is guilty of negligence; the risk of . . . The rule or regulation should be within the scope of the
wrongful payment has to be assumed by the statutory authority granted by the legislature to the
defendant. (Emphasis supplied, at pp. 198-202) administrative agency. (Davis, Administrative Law, p. 194, 197,
cited in Victorias Milling Co., Inc. v. Social Security Commission,
As can be gleaned from the decision, one of the main considerations in affirming
114 Phil. 555, 558).
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 In case of discrepancy between the basic law and a rule or
negligent and thus responsible for undue payment. regulation issued to implement said law the basic law prevails
because said rule or regulation cannot go beyond the terms and
Parenthetically, petitioner BPI's theory that the present clearing guarantee
provisions of the basic law (People v. Lim 108 Phil. 1091). (at
requirement imposed on the representing or collecting bank under the PCHC rules
pp. 633-634)
and regulations is independent of the Negotiable Instruments Law is not in order.
Section 23 of the Negotiable Instruments Law states:
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 When signature is forged or made without the authority of the
defined under section one thereof. Undeniably, the present case involves checks person whose signature it purports to be, it is wholly inoperative
as defined by and under the coverage of the Negotiable Instruments Law. To and no right to retain the instrument, or to give discharge
affirm the theory of the petitioner would, therefore, violate the rule that rules therefore, or to enforce payment thereof, against any party
and regulations implementing the law should conform to the law, otherwise the thereto, can be acquired through or under such forged
signature, unless the party against whom it is sought to enforce The Arbitration Committee, however, belittled petitioner BPI's negligence
such right is precluded from setting up the forgery or want of compared to that of respondent CBC which it declared as graver and the
authority. proximate cause of the loss of the subject checks to the impostor who
There are two (2) parts of the provision. The first part states the general rule impersonated Eligia G. Fernando. Petitioner BPI now insists on the adoption of the
while the second part states the exception to the general rule. The general rule is Arbitration Committee's evaluation of the negligence of both parties, to wit:
to the effect that a forged signature is "wholly inoperative", and payment made a) But what about the lapses of BPI's employees who processed
"through or under such signature" is ineffectual or does not discharge the the pretermination of Eligia G. Fernando's placement and issued
instrument. The exception to this rule is when the party relying in the forgery is the checks? We do not think it was a serious lapse not to confirm
"precluded from setting up the forgery or want of authority. In this jurisdiction we the telephone request for pretermination purportedly made by
recognize negligence of the party invoking forgery as an exception to the general Eligia G. Fernando, considering that it is common knowledge
rule. (See Banco de Oro Savings and Mortgage Bank v. Equitable Banking that business in the money market is done mostly by telephone.
Corporation supra; Philippine National Bank v. Quimpo, 158 SCRA 582 [1988]; Then, too, the initial request of the caller was for the two
Philippine National Bank v. Court of Appeals, 25 SCRA 693 [1968]; Republic v. checks representing the pretermination proceeds to be
Equitable Banking Corporation, 10 SCRA 8 [1964]; National Bank v. National City delivered to "her" office, meaning Eligia G. Fernando's office at
Bank of New York, 63 Phil. 711 [1936]; San Carlos Milling Co. v. Bank of P.I., 59 Philamlife, this clever ruse must have put off guard the
Phil. 59 [1933]). In these cases we determined the rights and liabilities of the employee preparing the "purchase order slip", enough at least
parties under a forged endorsement by looking at the legal effects of the relative for him to do away with having to call Eligia G. Fernando at her
negligence of the parties thereto. office. (Annex C at p. 17).
In the present petition the payee's names in the two (2) subject checks were b) We also do not think it unusual that Penelope Bulan, who
forged. Following the general rule, the checks are "wholly inoperative" and of no used to handle Eligia G. Fernando's account, should do nothing
effect. However, the underlying circumstances of the case show that the general about the request for pretermination and leave it to Eustaquio
rule on forgery is not applicable. The issue as to who between the parties should to process the pretermination. In a bank the of BPI, it would be
bear the loss in the payment of the forged checks necessities the determination of quite normal for an officer to take over from another the
the rights and liabilities of the parties involved in the controversy in relation to handling of an account. (Ibid. p. 17)
the forged checks. c) The failure to verify or compare Eligia G. Fernando's
The records show that petitioner BPI as drawee bank and respondent CBC as purported signature on the letter requesting the pretermination
representing or collecting bank were both negligent resulting in the encashment and the letter authorizing the pick-up of the checks in
of the forged checks. controversy with her signature in BPI's file showed lack of care
The Arbitration Committee in its decision analyzed the negligence of the and prudence required by the circumstances, although it is
employees of petitioner BPI involved in the processing of the pre-termination of doubtful that such comparison would have disclosed the
Eligia G. Fernando's money market placement and in the issuance and delivery of deception considering the "close similarity" between her
the subject checks in this wise: purported signature and her signature in BPI's file. (Ibid., p. 17).

a) The impostor could have been readily unmasked by a mere d) A significant lapse was, however, committed when the two
telephone call, which nobody in BPI bothered to make to Eligia checks in controversy were delivered without requiring the
G. Fernando, a vice-president of Philamlife (Annex C, p. 13). surrender of the promissory note evidencing the placement that
was supposedly preterminated. Although, as we already said, it
b) It is rather curious, too, that the officer who used to handle is hard to determine whether the failure to require the
Eligia G. Fernando's account did not do anything about the surrender of the promissory note was a deliberate act of
account's pre-termination (Ibid, p. 13). Laderas, the dispatcher, or simply because the "purchase order
c) Again no verification appears to have been made by (sic) slip" note, (sic) the fact remains that such failure contributed to
Eligia G. Fernando's purported signature on the letter requesting the consummation of the fraud. (Ibid., p. 17-18)
the pre-termination and the letter authorizing her niece to pick- The Arbitration Committee Decision's conclusion was expressed
up the checks, yet, her signature was in BPI's file (Ibid., p. 13). thus —
d) Another step that could have foiled the fraud, but which BPI Except for Laderas, not one of the BPI
neglected to take, was requiring before the two checks in personnel tasked with the pretermination of
controversy were delivered, the surrender of the promissory Eligia G. Fernando's placement and the
note evidencing the money market placement that was issuance of the pretermination checks
supposedly pre-terminated. (Rollo, p. 13). colluded in the fraud, although there may
have been lapses of negligence on their part
which we shall discuss later. The secreting out could still have been prevented if only the
of BPI of Fernando's specimen signature, care and diligence demanded by the
which, as admitted by the impostor herself circumstances were exercised. On October 14,
(Exhibit E-2, page 5), helped her in forging 1981, just a day after she opened her account,
Fernando's signature was no doubt an "inside the impostor deposited the two checks which
job" but done by any of the four employees had an aggregate value of P2,413,215.16,
colluding in the fraud, not by the personnel which was grossly disproportionate to her
directly charged with the custody of initial deposit of P10,000. The very date of
Fernando's records. (Annex C, p. 15) both checks, October 12, 1981, should have
With respect to the negligence of the CBC employees in the tipped off the real purpose of the opening of
payment of the two (2) BPI cashier's checks involved in this the account on October 13, 1981. But what
case, the Arbitration Committee's Decision made surely can be characterized only as
incontrovertible findingsundisputed in the statement of facts abandonment of caution was allowing the
found in the Court of Appeals' decision of 8 August 1991, the withdrawal of the checks' proceeds which
Regional Trial Court decision of 28 November 1990 and the started on October 16, 1981 only two days
PCHC Board of Directors' Order of 26 August 1986 (Annexes A, E, after the two checks were deposited; by
D, respectively). These findings point to negligence of the CBC October 22, 1981, the account had been
employees which led to: (a) the opening of the impostor's emptied of the checks' proceeds. (Annex C, p.
current account in the name of Eligia G. Fernando; (b) the 19).
deposit of said account of the two (2) checks in controversy and 3. We cannot accept CBC's contention that "big
(c) the withdrawal of their proceeds from said account. withdrawals" are "usual business" with it. Huge
The Arbitration Committee found that — withdrawals might be a matter of course with
an established account but not for a newly
1. Since the impostor presented only her tax opened account, especially since the supposed
account number as a means of identification, check proceeds being withdrawn were grossly
we feel that Emily Sylianco Cuaso, Cash disproportionate to the initial cash deposit.
Supervisor, approved the opening of her (Annex C, p. 19).
current account in the name of Eligia G.
Fernando on the strength of the introduction As intimated earlier, the foregoing findings of fact were not
of Antonio Concepcion who had himself materially disputed either by the respondent PCHC Board of
opened an account earlier that year. That Mrs. Directors or by the respondent courts (compare statement of
Cuaso was not comfortable with the facts of respondent court as reproduced in pp. 9-11 of this
introduction of the new depositor by petition).
Concepcion is betrayed by the fact that she Having seen the negligence of the employees of both Banks, the
made it appear in the application form that relevant question is: which negligence was graver. The
the new depositor was introduced by Valentin Arbitration Committee's Decision found and concluded thus —
Co a long-standing valued client of CBC who Since there were lapses by both BPI and CBC,
had introduced Concepcion when he opened the question is: whose negligence was the
his account. We find this misrepresentation graver and which was the proximate cause of
significant because when she reviewed the the loss? Even viewing BPI's lapses in the worst
application form she assumed that the new light, it can be said that while its negligence
client was introduced by Valentin Co as may have introduced the two checks in
indicated in the application form (tsn of March controversy into the commercial stream. CBC's
19, 1985, page 13). Thus we find that the lack of care in approving the opening with it of
impostor was able to open with CBC's current the impostor's current account, and its
account in the name of Eligia G. Fernando due allowing the withdrawal's of the checks'
to the negligence, if not misrepresentation, of proceeds, the aggregate value of which was
its Cash Supervisor, (Annex C, p. 18). grossly disproportionate to the initial cash
2. Even with negligence attending the deposit, so soon after such checks were
impostor's opening of a current account, her deposited, caused the "payment" of the
encashment of the two checks in controversy checks. Being closest to the vent of loss,
therefore, CBC's negligence must be held to be This omission of the BPI to require the surrender of the
proximate cause of the loss. (Annex C, pp. 19- promissory notes evidencing the placement is justified by the
20) (Rollo, pp. 38-41) decision by saying that Sec. 74 of the Negotiable Instrument Law
While it is true that the PCHC Board of Directors, and the lower courts did not is not violated by this omission of the BPI employees because
dispute the findings of facts of the Arbitration Committee, the PCHC Board of said provision is intended for the benefit of the person paying
Directors evaluated the negligence of the parties, to wit: (in this case the BPI) so that since the omission to surrender
having been waived by BPI, so the non-surrender does not
The Board finds the ruling that the negligence of the employees invalidate the payment. The fallacy of this argument is that the
of CBC is graver than that of the BPI not warranted by the facts in this case is: whether or not such non-surrender is a necessary
because: ingredient in the cause of the success of the fraud and not
1. The acts and omissions of which BPI employees are guilty are whether or not the payment was valid. This excuse may perhaps
not only negligent but criminal as found by the decision. be acceptable if the omission did not cause damage to any other
person. In this case, however, it did cause tremendous damage.
2. The act of BPI's dealer-trainee Eustaquio of disclosing
Moreover, this statement obviously overlooks the provision in
information about the money market placement of its client
Art. 1240 of the Civil Code requiring the payor (which in this
over the telephone is a violation, if not of Republic Act 1405, of
case is the BPI) to be sure he pays to the right person and as
Sec. 87 (a) of the General Banking Act which penalizes any
Art. 1242 states, he can claim good faith in paying to the right
officer-employee or agent of any banking institution who
person only if he pays to the person possession of the credit
discloses to any unauthorized person any information relative to
(which in this case is the promissory note evidencing the money
the funds or properties in the custody of the bank belonging to
market placement). Clearly therefore, the excuse given in the
private individual, corporations, or any other entity; and the
decision for the non-surrender of this promissory note
bland excuse given by the decision that "business in the money
evidencing the money market placement cannot be accepted.
market is done mostly by the telephone" cannot be accepted nor
tolerated for it is an elementary rule of law that no custom or xxx xxx xxx
usage of business can override what a law specifically provides. The decision, however, discusses in detail the negligent acts of
(Ang Tek v. CA, 87 Phil. 383). the CBC in its lapses or certain requirements in the opening of
3. The failure of BPI employees to verify or compare Eligia G. the account and in allowing withdrawals against the deposited
Fernando's purported signature on the letter requesting for pre- checks soon after the deposit thereof. As stated by the decision
termination and the letter authorizing the pick-up of the checks however, in computerized banks the history of the account is
in controversy with the signatures on file is not even justified not shown in the computer terminal whenever a withdrawal is
but admitted in the decision as showing lack of care and made.
prudence required by the circumstances. The conjectural The Board therefore believes that these withdrawals, without
excuse made in the decision that "it is doubtful that such any further showing that the CBC employees "had actual
comparison would have disclosed the deception" does not give knowledge of the infirmity or defect, or knowledge of such
an excuse for the omission by BPI employees of the act of facts" (Sec. 56, Negotiable Instruments Law) that their action in
verifying the signature, a duty which is the basic requirement of accepting their checks for deposit and allowing the withdrawals
all acts in the bank. From the very first time an employee against the same "amounted to bad faith" cannot be considered
enters the services of a bank up to the time he becomes the as basis for holding CBC liable. (Rollo, pp. 107-111)
highest officer thereof, the cautionary rule is drilled on him to
always be sure that when he acts on the basis of any signature Banks handle daily transactions involving millions of pesos. By the very nature of
presented before him, the signature is to be verified as genuine their work the degree of responsibility, care and trustworthiness expected of
and that if the bank acts on the basis of a forgery of such their employees and officials is far greater than those of ordinary clerks and
signature, the bank will be held liable. There can be no excuse employees. For obvious reasons, the banks are expected to exercise the highest
therefore for such an omission on the part of BPI employees. degree of diligence in the selection and supervision of their employees.

4. The decision admits that: 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
A significant lapse was, however, committed PCHC Board of Directors and the lower court, however disagree in the evaluation
when the two checks in controversy were of the degree of negligence of the banks. While the Arbitration Committee
delivered without requiring the surrender of declared the negligence of respondent CBC graver, the PCHC Board of Directors
the promissory note evidencing the placement and the lower courts declared that petitioner BPI's negligence was graver. To the
that was supposedly preterminated. 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 defendant exposed the horse and rider to this danger he was, in
how many justifications both banks present to avoid responsibility, they cannot our opinion, negligent in the eyes of the law.
erase the fact that they were both guilty in not exercising extraordinary diligence The test by which by which to determine the existence of
in the selection and supervision of their employees. The next issue hinges on negligence in a particular case may be stated as follows: Did the
whose negligence was the proximate cause of the payment of the forged checks defendant in doing the alleged negligent act use that reasonable
by an impostor. care and caution which an ordinarily prudent person would have
Petitioner BPI accuses the Court of Appeals of inconsistency when it affirmed the used in the same situation? If not, then he is guilty of
PCHC's Board of Directors' Order but in the same breath declared that the negligence.
negligent acts of the CBC employees occurred immediately before the actual loss. xxx xxx xxx
In this regard petitioner BPI insists that the doctrine of last clear chance It goes without saying that the plaintiff himself was not free
enunciated in the case of Picart v. Smith(37 Phil. 809 [1918]) should have been from fault, for he was guilty of antecedent negligence in
applied considering the circumstances of the case. planting himself on the wrong side of the road. But as we have
In the Picart case, Amado Picart was then riding on his pony over the Carlatan already stated, the defendant was also negligent; and in such
Bridge at San Fernando, La Union when Frank Smith approached from the opposite case the problem always is to discover which agent is
direction in a car. As Smith neared the bridge he saw Picart and blew his horn to immediately and directly responsible. It will be noted that the
give warning of his approach. When he was already on the bridge Picart gave two negligent acts of the two parties were not contemporaneous,
more successive blasts as it appeared to him that Picart was not observing the since the negligence of the defendant succeeded the negligence
rule of the road. Picart saw the car coming and heard the warning signals. An of the plaintiff by an appreciable interval. Under these
accident then ensued resulting in the death of the horse and physical injuries circumstances the law is that the person who has the last fair
suffered by Picart which caused him temporary unconsciousness and required chance to avoid the impending harm and fails to do so is
medical attention for several days. Thereafter, Picart sued Smith for damages. chargeable with the consequences, without reference to the
We ruled: prior negligence of the other party."

The question presented for decision is whether or not the Applying these principles, petitioner BPI's reliance on the doctrine of last clear
defendant in maneuvering his car in the manner above chance to clear it from liability is not well-taken. CBC had no prior notice of the
described was guilty of negligence such as gives rise to a civil fraud perpetrated by BPI's employees on the pretermination of Eligia G.
obligation to repair the damage done; and we are of the opinion Fernando's money market placement. Moreover, Fernando is not a depositor of
that he is so liable. As the defendant started across the bridge, CBC. Hence, a comparison of the signature of Eligia G. Fernando with that of the
he had the right to assume that the horse and rider would pass impostor Eligia G. Fernando, which respondent CBC did, could not have resulted
over to the proper side; but as he moved toward the center of in the discovery of the fraud. Hence, unlike in the Picart case herein the
the bridge it was demonstrated to his eyes that this would not defendant, had he used reasonable care and caution, would have recognized the
be done; and he must in a moment have perceived that it was risk he was taking and would have foreseen harm to the horse and the plaintiff
too late for the horse to cross with safety in front of the moving but did not, respondent CBC had no way to discover the fraud at all. In fact the
vehicle. In the nature of things this change of situation records fail to show that respondent CBC had knowledge, actual or implied, of the
occurred while the automobile was yet some distance fraud perpetrated by the impostor and the employees of BPI.
away; and from this moment it was no longer within the power However, petitioner BPI insists that even if the doctrine of proximate cause is
of the plaintiff to escape being run down by going to a place of applied, still, respondent CBC should be held responsible for the payment to the
greater safety. The control of the situation had then passed impostor of the two (2) checks. It argues that the acts and omissions of
entirely to the defendant; and it was his duty to either to bring respondent CBC are the cause "that set into motion
his car to an immediate stop or, seeing that there were no the actual and continuous sequence of events that produced the injury
other persons on the bridge, to take the other side and pass and without which the result would not have occurred." On the other hand, it
sufficiently far away from the horse to avoid the danger of assets that its acts and omissions did not end in a loss. Petitioner BPI anchors its
collision. Instead of doing this, the defendant ran starlight on argument on its stance that there was "a gap, a hiatus, an interval between the
until he was almost upon the horse. He was, we think, deceived issuance and delivery of said checks by petitioner BPI to the impostor and their
into doing this by the fact that the horse had not yet exhibited actual payment of CBC to the impostor. Petitioner BPI points out that the gap of
fright. But in view of the known nature of horses, there was an one (1) day that elapsed from its issuance and delivery of the checks to the
appreciable risk that, if the animal in question was impostor is material on the issue of proximate cause. At this stage, according to
unacquainted with automobiles, he might get excited and jump petitioner BPI, there was yet no loss and the impostor could have decided to
under the conditions which here confronted him. When the desist from completing the same plan and could have held to the checks without
negotiating them.
We are not persuaded. prudent and intelligent person, have reasonable ground
In the case of Vda. de Bataclan, et al, v. Medina (102 Phil. 181 [1957]), we had to expect at the moment of his act or default that an
occasion to discuss the doctrine of proximate cause. injury to some person might probably result therefrom.

Briefly, the facts of this case are as follows: It may be that ordinarily, when a passenger bus overturns, and
pins down a passenger, merely causing him physical injuries, if
At about 2:00 o'clock in the morning of September 13, 1952 a bus carrying about through some event, unexpected and extraordinary, the
eighteen (18) passengers on its way to Amandeo, Cavite figured in an accident. overturned bus is set on fire, say, by lightning, or if some
While the bus was running, one of the front tires burst and the bus began to highwaymen after looting the vehicle sets it on fire, and the
zigzag until it fell into a canal on the right side of the road and turned turtle. passenger is burned to death, on might still contend that the
Some passengers managed to get out from the overturned bus except for four (4) proximate cause of his death was the fire and not the
passengers, among them, Bataclan. The passengers who got out heard shouts for overturning of the vehicle. But in the present case and under
help from Bataclan and another passenger Lara who said they could not get out the circumstances obtaining in the same, we do not hesitate to
from the bus. After half an hour, about ten men came, one of them carrying a hold that the proximate cause of the death of Bataclan was the
lighted torch made of bamboo with a wick on one end fueled with petroleum. overturning of the bus, this for the reason that when the
These men approached the overturned bus, and almost immediately, a fierce fire vehicle turned not only on its side but completely on its back,
started burning and all but consuming the bus including the four (4) passengers the leaking of the gasoline from the tank was not unnatural or
trapped inside. It turned out that as the bus overturned, gasoline began to leak unexpected;that the coming of the men with a lighted torch was
and escape from the gasoline tank on the side of the chassis spreading over and in response to the call for help, made not only by the
permeating the body of the bus and the ground under and around it. The lighted passengers, but most probably, by the driver and the conductor
torch brought by one of the men who answered the call for help set it on fire. On themselves, and that because it was very dark (about 2:30 in
the same day, the charred bodies of the trapped passengers were removed and the morning), the rescuers had to carry a light with them; and
identified. By reason of his death, Juan Bataclan's wife and her children filed a coming as they did from a rural area where lanterns and
suit for damages against Maximo Medina, the operator and owner of the bus in the flashlights were not available, they had to use a torch, the most
then Court of First Instance of Cavite. The trial court ruled in favor of the handy and available; and what was more natural than that said
defendant. However, we reversed and set aside the trial court's decision and said: rescuers should innocently approach the overturned vehicle to
There is no question that under the circumstances, the extend the aid and effect the rescue requested from them. In
defendant carrier is liable. The only question is to what degree. other words, the coming of the men with the torch was to be
The trial court was of the opinion that the proximate cause of expected and was natural sequence of the overturning of the
the death of Bataclan was not the overturning of the bus, but bus, the trapping of some of its passengers and the call for
rather the fire that burned the bus, including himself and his co- outside help. (Emphasis Supplied, at pp. 185-187)
passengers who were unable to leave it; that at the time the Again, applying the doctrine of proximate cause, petitioner BPI's contention that
fire started, Bataclan, though the must have suffered, physical CBC alone should bear the loss must fail. The gap of one (1) day between the
injuries, perhaps serious, was still alive and so damages were issuance and delivery of the checks bearing the impostor's name as payee and the
awarded, not for his death, but for the physical satisfactory impostor's negotiating the said forged checks by opening an account and
definition of promote cause is found in Volume 38, pages 695- depositing the same with respondent CBC is not controlling. It is
696 of American Jurisprudence, cited by plaintiffs-appellants in not unnatural or unexpected that after taking the risk of impersonating Eligia G.
their brief. It is as follows: Fernando with the connivance of BPI's employees, the impostor would complete
. . . that cause, which, in natural and continuous her deception by encashing the forged checks. There is therefore, greater reason
sequence, unbroken by any efficient intervening cause, to rule that the proximate cause of the payment of the forged checks by an
produces the injury, and without which the result impostor was due to the negligence of petitioner BPI. This finding,
would not have occurred. And more comprehensively, notwithstanding, we are not inclined to rule that petitioner BPI must solely bear
the proximate legal cause in that acting first and the loss of P2,413,215.16, the total amount of the two (2) forged checks. Due
producing the injury, either immediately or by setting care on the part of CBC could have prevented any loss.
other events in motion, all constituting a natural and The Court cannot ignore the fact that the CBC employees closed their eyes to the
continuous chain of events, each having a close causal suspicious circumstances of huge over-the-counter withdrawals made immediately
connection with its immediate predecessor, the final after the account was opened. The opening of the account itself was accompanied
event in the chain immediately effecting the injury as by inexplicable acts clearly showing negligence. And while we do not apply the
natural and probable result of the cause which first last clear chance doctrine as controlling in this case, still the CBC employees had
acted, under such circumstances that the person ample opportunity to avoid the harm which befell both CBC and BPI. They let the
responsible for the first event should, as an ordinarily
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
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
(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.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
EN BANC In support of the defendant's contention counsel says: "Defendant's
G.R. No. L-7760 October 1, 1914 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.
E. M. WRIGHT, plaintiff-appellant, It seems clear that plaintiff's intoxication contributed to the fall; if he had been
vs. sober, it can hardly be doubted that he would have crossed the track safely, as he
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant. had done a hundred times before."
While both parties appealed from the decision, the defendant on the
W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff. ground that it was not liable and the plaintiff on the ground that the damages
Bruce, Lawrence, Ross & Block for defendant. 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
MORELAND, J.: the denial thereof, thus conferring upon this court jurisdiction to determine the
This is an action brought to recover damages for injuries sustained in an question of fact, nevertheless, not all of the testimony taken on the trial, so far
accident which occurred in Caloocan on the night of August 8, 1909. as can be gathered from the record, has been brought to this court. There seems
The defendant is a corporation engaged in operating an electric street to have been two hearings, one on the 31st of August and the other on the 28th of
railway in the city of Manila and its suburbs, including the municipality of September. The evidence taken on the first hearing is here; that taken on the
Caloocan. The plaintiff's residence in Caloocan fronts on the street along which second is not. Not all the evidence taken on the hearings being before the court,
defendant's tracks run, so that to enter his premises from the street plaintiff is we must refuse, under our rules, to consider even that evidence which is here;
obliged to cross defendant's tracks. On the night mentioned plaintiff drove home and, in the decision of this case, we are, therefore, relegated to the facts stated
in a calesa and in crossing the tracks to enter his premises the horse stumbled, in the opinion of the court and the pleadings filed.
leaped forward, and fell, causing the vehicle with the rails, resulting in a sudden A careful reading of the decision of the trial court leads us to the
stop, threw plaintiff from the vehicle and caused the injuries complained of. conclusion that there is nothing in the opinion which sustains the conclusion of
It is undisputed that at the point where plaintiff crossed the tracks on the the court that the plaintiff was negligent with reference to the accident which is
night in question not only the rails were above-ground, but that the ties upon the basis of this action. Mere intoxication establish a want of ordinary care. It is
which the rails rested projected from one-third to one-half of their depth out of but a circumstance to be considered with the other evidence tending to prove
the ground, thus making the tops of the rails some 5 or 6 inches or more above negligence. It is the general rule that it is immaterial whether a man is drunk or
the level of the street. 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
It is admitted that the defendant was negligent in maintaining its tracks as characterized by a proper degree of care and prudence, it is immaterial whether
described, but it is contended that the plaintiff was also negligent in that he was he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R.
intoxicated to such an extent at the time of the accident that he was unable to Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R.
take care of himself properly and that such intoxication was the primary cause of Co. vs. Phinazee, 93 Ga., 488; Maguirevs. Middlesex R. R. Co., 115 Mass., 239;
the accident. Meyer vs. Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33
The trial court held that both parties were negligent, but that the Ill. App., 114.)
plaintiff's negligence was not as great as defendant's and under the authority of If intoxication is not in itself negligence, what are the facts found by the
the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) apportioned the damages trial court and stated in its opinion upon which may be predicated the finding that
and awarded plaintiff a judgment of P1,000. the plaintiff did not use ordinary care and prudence and that the intoxication
The question before us is stated by the defendant thus: "Accepting the contributed to the injury complained of? After showing clearly and forcibly the
findings of the trial court that both plaintiff and defendant were guilty of negligence of the defendant in leaving its tracks in the condition in which they
negligence, the only question to be considered is whether the negligence of were on the night of the injury, the court has the following to say, and it is all
plaintiff contributed t the 'principal occurrence' or 'only to his own injury.' If the that can be found in its opinion, with reference to the negligence of the plaintiff:
former, he cannot recover; if the latter, the trial court was correct in "With respect to the condition in which Mr. Wright was on returning to his house
apportioning the damages." 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
The questioned as stated by plaintiff is as follows: "The main question at
intoxicated. . . . .
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 If the defendant or its employees were negligent by reason of
course, he cannot recover; if his negligence had nothing to do with the accident having left the rails and a part of the ties uncovered in a street where
but contributed to his injury, then the court was right in apportioning the there is a large amount of travel, the plaintiff was no less negligent, he
damages, but if there was no negligence on the part of the plaintiff, then he not having abstained from his custom of taking more wine than he could
should be awarded damages adequates to the injury sustained." 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 This is a finding of fact — the fact of negligence — and I know of no rule
above the level of the street. which requires the trial court to set forth not only the ultimate facts found by it,
If the plaintiff had been prudent on the night in question and had but also all the evidentiary facts on which such conclusions are based. The finding
not attempted to drive his conveyance while in a drunken condition, he is not in conflict with the other facts found by the trial judge, and though it is not
would certainly have avoided the damages which he received, although fully sustained thereby, we must assume, if we decline to examine the record,
the company, on its part, was negligent in maintaining its tracks in a bad that there were evidentiary facts disclosed at the trial which were sufficient to
condition for travel. sustain the finding if negligence. "The statement of facts must contain only those
facts which are essential to a clear understanding of the issues presented and the
Both parties, therefore, were negligent and both contributed to facts involved." (Act No. 190, sec. 133.)
the damages resulting to the plaintiff, although the plaintiff, in the
judgment of the court, contributed in greater proportion to the damages The facts required to be found are the ultimate facts forming the
that did the defendant. issues presented by the pleadings, and which constitute the fundation for
a judgment, and not those that are merely evidentiary facts, or to set
As is clear from reading the opinion, no facts are stated therein which forth and explain the means or processes by which he arrived at such
warrant the conclusion that the plaintiff was negligent. The conclusion that if he findings. Neither evidence, argument, nor comment has any legitimate
had been sober he would not have been injured is not warranted by the facts as place in findings of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)
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
Arellano, C.J., Torres and Araullo, JJ., concur.

Separate Opinions

CARSON, J., dissenting:

I dissent. I think, in the first place, that before pronouncing judgment the
parties should have an opportunity, if they so desire, to correct the manifestly
accidental omission from the record of a part of the transcript of the record. It is
very clear that when the case was submitted, and the brief filed, both parties
were under the mistaken impression that all the evidence was in the record.
I think, furthermore, that if the case is to be decided on the findings of
fact by the trial judge, these findings sufficiently establish the negligence of the
The trail judge expressly found that —
If the plaintiff had been prudent on the night in question and had
not attempted to drive his conveyance while in a drunken condition, he
would certainly have avoided the damages which he received, although
the company, on its part was negligent in maintaining its tracks in a bad
condition for travel.
EN BANC verbally announced his decision to defendant's counsel, the judgment had not yet
G.R. No. 6659 September 1, 1911 been entered, and therefore neither the defendant nor his counsel could be
notified thereof in legal form until said date, June 17.
THE UNITED STATES, plaintiff-appellee, Passing upon this motion on August 2, 1910, the court declared said appeal out of
vs. order and dismissed it; and, furthermore, denied the petition for suspension of
BAGGAY, JR., defendant-appellant. judgment, as said judgment had become final.
Roman Lacson, for appellant. Thereupon, counsel for the defendant resorted to this court with a petition
Acting Attorney-General Harvey, for appellee. 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
TORRES, J.: 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
This is an appeal by the defendant from the judgment rendered on April 28, 1910, fiscal, requested that this remedy be declared out of order, as the issuance of
whereby he was declared exempt from criminal liability but was obliged to such writ against the judge of the Court of First Instance of Ilocos Sur, and much
indemnify the heirs if the murdered woman, Bil-liingan, in the sum of P1,000, to more against the provincial fiscal, was not in accordance with law; but this court
pay the costs in the case and to be confined in an institution for the insane until by order of November 15 saw fit to declare said remedy of mandamus to be in
further order of the court. order and issued a written order directing the judge of the Court of First Instance
About the 4th of October, 1909, several persons were assembled in the to immediately admit the appeal filed in these two causes and to forward all the
defendant's house in the township of Penarrubia, Abra, Province of Ilocos Sur, for records to this higher court. At the same time he was instructed to refrain
the purpose of holding a song service called "buni" according to the Tinguian absolutely from executing said judgments or causing them to be executed while
custom, when he, the non-Christian Baggay, without provocation suddenly said appeals were pending, a prohibition that was extended to the provincial
attacked the woman Bil-liingan with a bolo, inflicting a serious wound on her head sheriff, his agents and representatives, until further order from this court. Upon
from which she expired immediately; and with the same bolo he like wise notification of the foregoing and in compliance therewith, the judge by order of
inflicted various wounds on the women named Calabayan, Agueng, Quisamay, November 22 admitted the appeal filed by counsel for the defense both in the
Calapini, and on his own mother, named Dioalan. cause for murder and in that for lesiones.
For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, The question raised on the appeal filed in this case by counsel for the insane
dated February 15, charging the non-Christian Baggay, jr., with murder, because defendant, Baggay, jr., is solely whether he, notwithstanding that he was held
of the violent death of the woman Bil-liingan. This cause was instituted separately exempt from criminal liability, has nevertheless incurred civil liability, with
from the other, No. 1109, for lesiones. After trial and proof that the defendant obligation to indemnify the heirs of the murdered woman and to pay the costs.
was suffering from mental aberration, the judge on April 28 rendered the Article 17 of the Penal Code states:
judgment cited above, whereupon the defendant's counsel appealed to this court.
Every person criminally liable for a crime or misdemeanor is also civilly
By another writing of June 27, the same counsel asked for immediate suspension liable.
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 Article 18 of the same code says:
attached by the sheriff or his deputy under order of the court, for making The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10
indemnification with the defendant's property in accordance with said judgment, of article 8 does not include exemption from civil liability, which shall be
as the attachment had been executed upon the property of the non-Christian enforced, subject to the following:
woman named Dioalan and of other persons, and not upon that of the defendant.
(1) In cases 1, 2, and 3, the persons who are civilly liable for acts
In opposition thereto, the provincial fiscal on the 30th of the same month committed by a lunatic or imbecile, or a person under 9 years of age, or
requested in writing that the appeal from this judgment filed by the counsel for over this age and under 15, who has not acted with the exercise of
the defense be not admitted or carried forward, representing that it was out of judgment, are those who have them under their authority, legal
order as having been submitted beyond the limit; for the very day said judgment guardianship or power, unless they prove that there was no blame or
was rendered, April 28, 1910, the accused's counsel, Sotero Serrano, was verbally negligence on their part.
notified thereof, and it is therefore untrue that he was notified only on June 17 of
Should there be no person having them under his authority, legal
said year, on which date he read and examined the case and without the clerk's
guardian, or power, if such person be insolvent, the said lunatics,
knowledge signed the same, making it appear that he was notified on that date,
imbeciles, or minors shall answer with their own property, excepting that
June 17, what he had known since April 28 of the judgment, of which the judge
part which is exempted for their support in accordance with the civil
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
True it is that civil liability accompanies criminal liability, because every person
liable criminally for a crime or misdemeanor is also liable for reparation of
damage and for indemnification of the harm done, but there may be civil liability
because of acts ordinarily punishable, although the law has declared their
perpetrators exempt from criminal liability. Such is the case of a lunatic or insane
person who, in spite of his irresponsibility on account of the deplorable condition
of his deranged mind, is still reasonably and justly liable with his property for the
consequences of his acts, even though they be performed unwittingly, for the
reason that his fellows ought not to suffer for the disastrous results of his harmful
acts more than is necessary, in spite of his unfortunate condition. Law and society
are under obligation to protect him during his illness and so when he is declared
to be liable with his property for reparation and indemnification, he is still
entitled to the benefit of what is necessary for his decent maintenance, but this
protection does not exclude liability for damage caused to those who may have
the misfortune to suffer the consequences of his acts.
According to the law, the persons in the first place liable. are those who have the
insane party under their care or guardianship, unless they prove that there was no
blame or negligence on their part; but if the demented person or imbecile lack a
guardian or some person charged with his care, if the latter be insolvent, then his
own property must meet the civil liability of indemnifying or repairing the damage
done, and for this reason judges and courts in rendering judgment in a criminal
cause prosecuted against an insane or demented person, even when they hold the
accused exempt from criminal liability, must fix the civil liability of the persons
charged with watching over and caring for him or the liability of the demented
person him self with his property for reparation of the damage and
indemnification for the harm done, unless the offended party or the heirs of the
person murdered expressly renounce such reparation or indemnification.
Therefore, the judgment appealed from being in accordance with law, affirmation
thereof is proper, and it is hereby affirmed, with costs against the appellant.
Mapa, Johnson, Carson and Moreland, JJ., concur.
SECOND DIVISION party is afforded opportunity to examine and rebut the same which was done in
G.R. No. L-8110 June 30, 1956 this instance.
Anyway we are not shown how its failure to cross-examine the witnesses
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, prejudiced thePetitioner’s position.
THE WORKMEN’S COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR In its second proposition, Petitioner maintains that this claim is barred by section
and GERONIMO MA. COLL, Respondents. 6 of the Workmen’s Compensation Law, because (a) Macunat was prosecuted and
DECISION required to indemnify the heirs of the deceased and (b) an amicable settlement
was concluded between said heirs and Macunat.
BENGZON, J.: Section 6 provides as follows:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the “Sec. 6. Liability of third parties. — In case an employee suffers an injury for
Workmen’s Compensation Commissioner confirming the referee’s award of which compensation is due under this Act by any other person besides his
compensation to the heirs of Pedro Mamador for his accidental death. employer, it shall be optional with such injured employee either to claim
Only the right to compensation is disputed; not the amount. 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
“It appears,” says the award, “that on August 23, 1951, at 6:00 a.m. in Bo. allowed in accordance with this Act, the employer who paid such compensation or
Sumangga, Mogpog, Marinduque, the deceased Mamador together with other was found liable to pay the same, shall succeed the injured employee to the right
laborers of the Respondent-corporation, (Marinduque Iron Mines Agents Inc.) of recovering from such person what he paid: Provided, That in case the employer
boarded a truck belonging to the latter, which was then driven by one Procopio recovers from such third person damages in excess of those paid or allowed under
Macunat, also employed by the corporation, and on its way to their place of work this Act, such excess shall be delivered to the injured employee or any other
at the mine camp at Talantunan, while trying to overtake another truck on the person entitled thereto, after deduction of the expenses of the employer and the
company road, it turned over and hit a coconut tree, resulting in the death of said costs of the proceedings. The sum paid by the employer for compensation or the
Mamador and injury to the others.” amount of compensation to which the employee or his dependents are entitled,
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the shall not be admissible as evidence in any damage suit or action.”
heirs of the deceased. (Criminal Case No. 1491). He has paid nothing however, to It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome
the latter. constituted an election by the employee (or his heirs) to sue the third person,
In his first proposition Petitioner challenges the validity of the proceedings before such election having the effect of releasing the employer. However, Criminal Case
the Commission, asserting it had not been given the opportunity to cross-examine No. 1491 was not a suit for damages against the third person, it being alleged,
the opposing witnesses. According to Respondents. without contradiction that the heirs did not intervene therein and have not so far
“The records show that pursuant to a request made by this Commission on March received the indemnity ordered by the court. At any rate, we have already
28, 1953 to investigate the above-entitled case, the Public Defender of Boac, decided in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a
Marinduque, notifiedRespondent Geronimo Ma. Coll and the general manager of criminal prosecution of the “other person” does not affect the liability of the
the Respondent company, Mr. Eric Lenze, to appear before him in an employer to pay compensation. 2
investigation, first on May 12, 1953, when neither of them appeared, and the As to the alleged “amicable settlement,” it consists of an affidavit wherein, for
second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The sworn the sum of 150 pesos, Mamador’s widow promised “to forgive Macunat for the
testimony of Mr. Ma. Coll was then taken down in a question and answer method. wrong committed and not to bring him before the authorities for prosecution.”
On August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote Upon making such promise — Petitionerargues — she elected one of the remedies,
the Respondentcompany to comment on the enclosed copy of the sworn (against the third person) and is barred from the other remedy (against the
declaration of Ma. Coll. TheRespondent company, thru its Vice President, denied employer). The contention may not be sustained, inasmuch as all the widow
its liability under the Workmen’s Compensation Act, as amended. In an promised was to forego the offender’s criminal prosecution. Note further that a
investigation conducted on February 8, 1954 by the undersigned referee, question may be raised whether she could bind the other heirs of the deceased.
the Respondent company thru Mr. Lenze who was assisted by counsel, was The most important aspect of this appeal, is the effect of the deceased’s having
allowed to examine the records of the case including the sworn declaration of Ma. violated the employer’s prohibition against laborers riding the haulage
Coll and was given all the opportunity to rebut the same by additional evidence.” trucks. Petitioner claims such violation was the laborer’s “notorious negligence”
In our opinion, Petitioner’s grievance does not rest on any sound basis, because it which, under the law, precludes recovery. The Commission has not declared that
was given notice, and therefore had the chance, to examine (and cross-examine) the prohibition was known to Mamador. Yet the employer does not point out in
the witnesses against it. The statute even permits the Commissioner (or his the record evidence to that effect. Supposing Mamador knew the prohibition, said
referee) to take testimony without notice (section 48 Act 3428 as amended) the referee, “can we truthfully say that he boarded the fatal truck with full
provided of course such ex parte evidence is reduced to writing, and the adverse 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; 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.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.

Separate Opinions

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

1. 57 Phi., 751.
2. See Balajadia vs. Province of Iloilo, G. R. No. 41979 October 1934.
3. To Justice Malcolm “notorious” negligence is stronger in significance
than “gross” negligence. (56 Phil, 547.)
SECOND DIVISION brother-in-law law of the driver of said truck; that the truck
G.R. No. 73998 November 14, 1988 allegedly being repaired was parked, occupying almost half of
the right lane towards Solano, Nueva Vizcaya, right after the
PEDRO T. LAYUGAN, petitioner, curve; that the proximate cause of the incident was the failure
vs. of the driver of the parked truck in installing the early warning
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS device, hence the driver of the parked car should be liable for
MULTI-INDEMNITY CORPORATION, respondents. damages sustained by the truck of the herein defendant in the
amount of more than P20,000.00; that plaintiff being a mere
Edralin S. Mateo for petitioner. bystander and hitchhiker must suffer all the damages he
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp. incurred. By way of counterclaim defendant alleged that due to
Roberto T. Vallarta for respondent Godofredo Isidro. plaintiffs baseless complaint he was constrained to engage the
services of counsel for P5,000.00 and P200.00 per court
SARMIENTO, J.: appearance; that he suffered sleepless nights, humiliation,
Assailed in this petition for review on certiorari are 1) the decision 1 of the then wounded feelings which may be estimated at P30.000.00.
Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. On May 29, 1981, a third-party complaint was filed by the
Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and defendant against his insurer, the Travellers Multi Indemnity
Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Corporation; that the third-party plaintiff, without admitting his
Third Party Defendant- Appellant, "which reversed and set aside the decision 3 of liability to the plaintiff, claimed that the third-party defendant
the Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and is liable to the former for contribution, indemnity and
also dismissed the complaint, third party complaint, and the counter claims of the subrogation by virtue of their contract under Insurance Policy
parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) No. 11723 which covers the insurer's liability for damages arising
motion for reconsideration, for lack of merit. from death, bodily injuries and damage to property.
The findings of fact by the trial court which were adopted by the appellate court Third-party defendant answered that, even assuming that the
are as follows: 5 subject matter of the complaint is covered by a valid and
xxx xxx xxx existing insurance policy, its liability shall in no case exceed the
limit defined under the terms and conditions stated therein;
Pedro T. Layugan filed an action for damages against Godofredo that the complaint is premature as no claim has been submitted
Isidro, alleging that on May 15, 1979 while at Baretbet, to the third party defendant as prescribed under the Insurance
Bagabag, Nueva Vizcaya, the Plaintiff and a companion were Code; that the accident in question was approximately caused
repairing the tire of their cargo truck with Plate No. SU-730 by the carelessness and gross negligence of the plaintiff-, that
which was parked along the right side of the National Highway; by reason of the third-party complaint, third-party defendant
that defendant's truck bearing Plate No. PW-583, driven was constrained to engage the services of counsel for a fee of
recklessly by Daniel Serrano bumped the plaintiff, that as a P3,000.00.
result, plaintiff was injured and hospitalized at Dr. Paulino J.
Garcia Research and Medical Center and the Our Lady of Pedro Layugan declared that he is a married man with one (1)
Lourdes Hospital; that he spent TEN THOUSAND PESOS child. He was employed as security guard in Mandaluyong, Metro
(Pl0,000.00) and will incur more expenses as he recuperates Manila, with a salary of SIX HUNDRED PESOS (600.00) a month.
from said injuries; that because of said injuries he would be When he is off-duty, he worked as a truck helper and while
deprived of a lifetime income in the sum of SEVENTY THOUSAND working as such, he sustained injuries as a result of the bumping
PESOS (P70,000.00); and that he agreed to pay his lawyer the of the cargo truck they were repairing at Baretbet, Bagabag,
sum of TEN THOUSAND PESOS (Pl0,000.00). Nueva Vizcaya by the driver of the defendant. He used to earn
As prayed for by the plaintiffs counsel, the Court declared the (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00)
defendant in default on October 12, 1979, and plaintiff's per trip. Due to said injuries, his left leg was amputated so he
evidence was received ex-parte on January 11, 1978 and had to use crutches to walk. Prior to the incident, he supported
February 19, 1980. The decision on behalf of the plaintiff was his family sufficiently, but after getting injured, his family is
set aside to give a chance to the defendant to file his answer now being supported by his parents and brother.
and later on, a third-party complaint.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified
Defendant admitted his ownership of the vehicle involved in the that his truck involved in this vehicular accident is insured with
accident driven by Daniel Serrano. Defendant countered that the Travellers Multi Indemnity Corporation covering own damage
the plaintiff was merely a bystander, not a truck helper being a and third-party liability, under vehicle policy No. 11723 (Exh.
"1") dated May 30, 1978; that after he filed the insurance claim 2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
the insurance company paid him the sum of P18,000.00 for the CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
damages sustained by this truck but not the third party liability. WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
DANIEL SERRANO, defendant driver, declared that he gave a The crux of the controversy lies in the correctness or error of the decision of the
statement before the municipal police of Bagabag, Nueva respondent court finding the petitioner negligent under the doctrine of Res ipsa
Vizcaya on May 16, 1979; that he knew the responsibilities of a loquitur (The thing speaks for itself).<äre||anº•1àw> Corollary thereto, is the
driver; that before leaving, he checked the truck. The truck question as to who is negligent, if the doctrine is inapplicable.
owner used to instruct him to be careful in driving. He bumped The respondent corporation stresses that the issues raised in the petition being
the truck being repaired by Pedro Layugan, plaintiff, while the factual, the same is not reviewable by this Court in a petition for review by
same was at a stop position. From the evidence presented, it certiorari. 9
has been established clearly that the injuries sustained by the
plaintiff was caused by defendant's driver, Daniel Serrano. The Indeed, it is an elementary rule in the review of decisions of the Court of Appeals
police report confirmed the allegation of the plaintiff and that its findings of fact are entitled to great respect and will not ordinarily be
admitted by Daniel Serrano on cross-examination. The collision disturbed by this Court. 10 For if we have to review every question of fact
dislodged the jack from the parked truck and pinned the elevated to us, we would hardly have any more time left for the weightier issues
plaintiff to the ground. As a result thereof, plaintiff sustained compelling and deserving our preferential attention. 11 Be that as it may, this rule
injuries on his left forearm and left foot. The left leg of the is not inflexible. Surely there are established exceptions 12 —when the Court
plaintiff from below the knee was later on amputated (Exh. "C") should review and rectify the findings of fact of the lower court, such as:
when gangrene had set in, thereby rendering him incapacitated 1) when the conclusion is a finding grounded entirely on speculation, surmise, or
for work depriving him of his income. (pp. 118 to 120, Record on conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse
Appeal.) of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court
xxx xxx xxx 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
Upon such findings, amply supported by the evidence on record, the trial court Appeals are contrary to those of the trial court; 7) the said findings of fact are
rendered its decision, the dispositive part of which reads as follows: 6 conclusions without citation of specific evidence on which they are based; 8) the
WHEREFORE, premises considered, the defendant is hereby facts set forth in the petition as well as in the petitioner's main and reply briefs
ordered: are not disputed by the respondents; and 9) when the findings of fact of the Court
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS of Appeals are premised on the absence of evidence and are contradicted on
actual and compensatory damages; record.

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees; Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation
from the general rule.
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
From its finding that the parked truck was loaded with ten (10) big round
d) To pay the costs of this suit. On the third-party complaint, logs 13 the Court of Appeals inferred that because of its weight the truck could not
the third-party defendant is ordered to indemnify the have been driven to the shoulder of the road and concluded that the same was
defendant/third party plaintiff-. parked on a portion of the road 14 at the time of the accident. Consequently, the
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual respondent court inferred that the mishap was due to the negligence of the driver
and compensatory damages; and 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
b) The costs of this suit.
respondent court could have reversed the finding of the trial court that a warning
The Intermediate Appellate Court as earlier stated reversed the decision of the device was installed 16escapes us because it is evident from the record that really
trial court and dismissed the complaint, the third-party complaint, and the such a device, in the form of a lighted kerosene lamp, was installed by the driver
counter- claims of both appellants. 7 of the parked truck three to four meters from the rear of his parked truck. 17 We
Hence, this petition. 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 petitioner alleges the following errors. the trial court that an early warning device was in proper place when the
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE accident happened and that the driver of the private respondent was the one
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND negligent. On the other hand, the respondent court, in refusing to give its
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private
COMPLAINT. 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 proffers that the petitioner must show to the satisfaction of a reasonable mind
record." 18 that the driver and he (petitioner) himself, provided an early warning device, like
On the technical aspect of the case, the respondent corporation would want us to that required by law, or, by some other adequate means that would properly
dismiss this petition on the ground that it was filed out of time. It must be noted forewarn vehicles of the impending danger that the parked vehicle posed
that there was a motion for extension, 19 albeit filed erroneously with the considering the time, place, and other peculiar circumstances of the occasion.
respondent court, dated March 19, 1986, requesting for 30 days from March 20, Absent such proof of care, as in the case at bar, Isidro concludes, would, under
1986, to file the necessary petition or pleading before the Supreme Court". Also, the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part
on April 1, 1986, an appearance of a new lawyer for the petitioner before the of the driver of the parked cargo truck as well as his helper, the petitioner
Supreme Court" with motion 20 was filed, again erroneously, with the Court of herein, who was fixing the flat tire of the said truck. 27
Appeals, requesting for 20 days extension "to file the Petition for Review on Respondent Isidro's contention is untenable.
Certiorari." Likewise a similar motion21 was filed with this Court also on April 1, The evidence on record discloses that three or four meters from the rear of the
1986. On the other hand, the instant petition for review was filed on April 17, parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is the
1986 22 but it was only after three months, on August 1, 1986, in its admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29
comment 23 that the respondent corporation raised the issue of tardiness. The
respondent corporation should not have waited in ambush before the comment Question No. 8 (by Patrolman Josefino Velasco)—Will you
was required and before due course was given. In any event, to exact its "a pound narrate to me in brief how the accident happens (sic) if you can
of flesh", so to speak, at this very late stage, would cause a grave miscarriage of still remember?
justice. Parenthetically, it must be noted that private respondent Isidro did not Answer: (by Daniel Serrano)
raise this issue of late filing.
That on or about 10:40 p.m., 15 May 1979
We now come to the merits of this petition. while driving Isuzu truck at Baretbet, Bagabag,
The question before us is who was negligent? Negligence is the omission to do Nueva Vizcaya and at KM 285, I met another
something which a reasonable man, guided by those considerations which vehicle who (sic) did not dim his (sic)
ordinarily regulate the conduct of human affairs, would do, or the doing of lights which cause (sic) me to be blinded with
something which a prudent and reasonable man would not do 24 or as Judge Cooley intense glare of the light that's why I did not
defines it, "(T)he failure to observe for the protection of the interests of another notice a parked truck who (sic) was repairing
person, that degree of care, precaution, and vigilance which the circumstances a front flat tire. When I was a few meters
justly demand, whereby such other person suffers injury. 25 away, I saw the truck which was loaded with
round logs. I step (sic) on my foot brakes but
In Picart vs. Smith, decided more than seventy years ago but still a sound rule, it did not function with my many attempts. I
we held: have (sic) found out later that the fluid pipe
The test by which to determine the existence of negligence in a particular case on the rear right was cut that's why the
may be stated as follows: Did the defendant in doing the alleged negligent act use breaks did not function. (Emphasis supplied).
that reasonable care and caution which an ordinarily prudent person would have Whether the cargo truck was parked along the road or on half the shoulder of the
used in the same situation? If not, then he is guilty of negligence. The law here in right side of the road would be of no moment taking into account the warning
effect adopts the standard supposed to be supplied by the imaginary conduct of device consisting of the lighted kerosene lamp placed three or four meters from
the discreet paterfamilias of the Roman law. The existence of negligence in a the back of the truck. 30 But despite this warning which we rule as sufficient, the
given case is not determined by reference to the personal judgment of the actor Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still
in the situation before him. The Law considers what would be reckless, bumped the rear of the parked cargo truck. As a direct consequence of such
blameworthy, or negligent in the man of ordinary intelligence and prudence and accident the petitioner sustained injuries on his left forearm and left foot. His
determines liability by that. left leg was later amputated from below the knee when gangrene had set in. 31
Respondent Isidro posits that any immobile object along the highway, like a It is clear from the foregoing disquisition that the absence or want of care of
parked truck, poses serious danger to a moving vehicle which has the right to be Daniel Serrano has been established by clear and convincing evidence. It follows
on the highway. He argues that since the parked cargo truck in this case was a that in stamping its imprimatur upon the invocation by respondent Isidro of the
threat to life and limb and property, it was incumbent upon the driver as well as doctrine of Res ipsa loquitur to escape liability for the negligence of his
the petitioner, who claims to be a helper of the truck driver, to exercise extreme employee, the respondent court committed reversible error.
care so that the motorist negotiating the road would be properly forewarned of 32
the peril of a parked vehicle. Isidro submits that the burden of proving that care The respondent court ruled:
and diligence were observed is shifted to the petitioner, for, as previously xxx xxx xxx
claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the
immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro
In addition to this, we agree with the following arguments of negligence where plaintiff produces substantial evidence that
appellant Godofredo Isidro which would show that the accident injury was caused by an agency or instrumentality under
was caused due to the negligence of the driver of the cargo exclusive control and management of defendant, and that the
truck: occurrence was such that in the ordinary course of things would
xxx xxx xxx not happen if reasonable care had been used.

... In the case at bar the burden of proving In this jurisdiction we have applied this doctrine in quite a number of cases,
that care and diligence was (sic) observed is notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case
shifted evidently to the plaintiff, for, as of F.F. Cruz and Co., Inc. vs. CA. 36
adverted to, the motorists have the right to be The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of
on the road, while the immobile truck has no negligence which recognizes that prima facie negligence may be established
business, so to speak, to be there. It is thus without direct proof and furnishes a substitute for specific proof of
for the plaintiff to show to the satisfaction of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a mode
a reasonable mind that the driver and he of proof or a mere procedural convenience. 39 The rule, when applicable to the
himself did employ early warning device such facts and circumstances of a particular case, is not intended to and does not
as that required by law or by some other dispense with the requirement of proof of culpable negligence on the part of the
adequate means or device that would party charged. 40 It merely determines and regulates what shall be prima facie
properly forewarn vehicles of the impending evidence thereof and facilitates the burden of plaintiff of proving a breach of the
danger that the parked vehicle posed duty of due care. 41 The doctrine can be invoked when and only when, under the
considering the time, place and other peculiar circumstances involved, direct evidence is absent and not readily
circumstances of the occasion. Absent such available. 42 Hence, it has generally been held that the presumption of inference
proof of care, as in the case at bar, will evoke arising from the doctrine cannot be availed of, or is overcome, where plaintiff has
the presumption of negligence under the knowledge and testifies or presents evidence as to the specific act of negligence
doctrine of res ipsa loquitur, on the part of which is the cause of the injury complained of or where there is direct evidence
the driver of the parked cargo truck as well as as to the precise cause of the accident and all the facts and circumstances
plaintiff who was fixing the flat tire of said attendant on the occurrence clearly appear. 43 Finally, once the actual cause of
truck. (pp. 14-17, Appellant's Brief). (Emphasis injury is established beyond controversy, whether by the plaintiff or by the
supplied). defendant, no presumptions will be involved and the doctrine becomes
At this juncture, it may be enlightening and helpful in the proper resolution of the inapplicable when the circumstances have been so completely eludicated that no
issue of negligence to examine the doctrine of Res ipsa loquitur. inference of defendant's liability can reasonably be made, whatever the source of
the evidence, 44 as in this case.
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 The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph
ordinary course of things does not happen if those who have the management use 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a
proper care, it affords reasonable evidence, in the absence of an explanation by servant or employee there instantly arises a presumption of law that there was
the defendant, that the accident arose from want of care. 33 Or as Black's Law negligence on the part of the master or employer either in the selection of the
Dictionary 34 puts it: 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
Res ipsa loquitur. The thing speaks for itself Rebuttable rebutted. If follows necessarily that if the employer shows to the satisfaction of
presumption or inference that defendant was negligent, which the court that in the selection and in the supervision he has exercised the care
arises upon proof that instrumentality causing injury was in and diligence of a good father of a family, the presumption is overcome and he is
defendant's exclusive control, and that the accident was one relieved from liability. 45 In disclaiming liability for the incident, the private
which ordinarily does not happen in absence of negligence. Res respondent stresses that the negligence of his employee has already been
ipsa loquitur is rule of evidence whereby negligence of alleged adequately overcome by his driver's statement that he knew his responsibilities as
wrongdoer may be inferred from mere fact that accident a driver and that the truck owner used to instruct him to be careful in driving. 46
happened provided character of accident and circumstances
attending it lead reasonably to belief that in absence of We do not agree with the private respondent in his submission. In the first place,
negligence it would not have occurred and that thing which it is clear that the driver did not know his responsibilities because he apparently
caused injury is shown to have been under management and did not check his vehicle before he took it on the road. If he did he could have
control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. discovered earlier that the brake fluid pipe on the right was cut, and could have
Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa repaired it and thus the accident could have been avoided. Moveover, to our
loquitur" the happening of an injury permits an inference of 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 14 Id.
finding of negligence of the Regional Trial Court given the facts established at the 15 Id.
trial 47 The private respondent or his mechanic, who must be competent, should 16 Id.
have conducted a thorough inspection of his vehicle before allowing his driver to 17 Petition, 13.
drive it. In the light of the circumstances obtaining in the case, we hold that 18 Decision, CA, 50.
Isidro failed to prove that the diligence of a good father of a family in the 19 Annex K, 59.
supervision of his employees which would exculpate him from solidary liability 20 Annex M, 62.
with his driver to the petitioner. But even if we concede that the diligence of a 21 Motion for Extension, 2.
good father of a family was observed by Isidro in the supervision of his driver, 22 Petition, 4.
there is not an iota of evidence on record of the observance by Isidro of the same 23 Comment, 65.
quantum of diligence in the supervision of his mechanic, if any, who would be 24 Black Law Dictionary, Fifth Edition, 930.
directly in charge in maintaining the road worthiness of his (Isidro's) truck. But 25 Cooley on Torts, Fourth Edition, Vol. 3, 265.
that is not all. There is paucity of proof that Isidro exercised the diligence of a 26 37 Phil. 809, 813, No. L-12219, March 15, 1918; Hedy Gan vs.
good father of a family in the selection of his driver, Daniel Serrano, as well as in The Hon. Court of Appeals, G.R. L-44264, September 19, 1988.
the selection of his mechanic, if any, in order to insure the safe operation of his 27 Memorandum of Private Respondent, 2-3.
truck and thus prevent damage to others. Accordingly, the responsibility of Isidro 28 Rollo, 13.
as employer treated in Article 2180, paragraph 5, of the Civil Code has not 29 Id., 11, quoting the police investigation report by Patrolman
ceased. Josefino Velasco at about 10:00 a.m., on May 16, 1979, the
WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent morning after the accident, of the statement of Daniel Serrano,
court as well as its Resolution denying the petitioner's motion for reconsideration the driver of respondent Isidro.
are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, 30 Petition, Rollo, 13.
is hereby REINSTATED in toto. With costs against the private respondents. 31 Decision, RTC, Rollo, 13.
32 Decision, IAC, Rollo, 50-51, 52.
SO ORDERED. 33 Cooley on Torts, Vol. 3. 369.
Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur. 34 Fifth Edition, 1173.
35 L-12986, March 31, 1966, 16 SCRA 448.
Footnotes 36 L-52732, August 29, 1988.
1 Veloso, Marcelino R., ponente; Sison, Porfirio V., Bidin, 37 Corpus Juris Secundum, Vol. 65A, 525.
Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 38 Id., 527.
2 Fourth Civil Cases Division. 39 Id., 529.
3 Rendered by Judge Leticia P. Morales. 40 Id 529-530.
4 Veloso, Mercelino R., J., ponente; Sison, Porfirio V. Bidin, 41 Id., 530.
Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 42 Id., 543-544.
5 Decision of IAC, Rollo, 46-49. 43 Id., 544-545.
6 Decision of the Regional Trial Court, Rollo, 32. 44 Id., 548.
7 Ibid., p. 52. 45 Bahia vs. Litonpia and Leynes, No. L-9734, March 31, 1915,
8 Petition, Rollo, pp. 8-9. 30 Phils. 624.
9 Rollo, 108. 46 Memorandum of private respondent, 6.
10 The Executive Secretary, et al. vs. CA, G.R. No. L-37999, 47 Decision, IAC, Rollo, 52.
June 10, 1988, citing Chan vs. CA, G.R. No. L-27488, June 30,
1970, 33 SCRA 737; Lianga Bay Logging Co., Inc. vs. CA, G.R. No.
L-37783, January 28,1988.
11 Anderson Co., et al. vs. IAC, G.R. No. L-65928, June 21,
12 Director of Lands vs. CA, G.R. No. L-46068, September 30,
1982, 117 SCRA 346, citing Macadangdang vs. CA No. L-49542,
September 12, 1980, 100 SCRA 73; Manero vs. CA G.R. No. L-
49824, February 20, 1981; 102 SCRA 817; Pio L. Padilla vs, C.A.,
January 29, 1988; G.R. 75577, January 29, 1988; Municipality of
Meycauayan, Bulacan vs. IAC, G.R. L-72126, January 29, 1988.
13 Decision, Court of Appeals, 50.
FIRST DIVISION (findings from the Capitol Medical Center, FEU Hospital and
G.R. No. 124354 December 29, 1999 DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural assured Rogelio that he will get a good anesthesiologist. Dr.
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON Hosaka charged a fee of P16,000.00, which was to include the
RAYMOND RAMOS, petitioners, anesthesiologist's fee and which was to be paid after the
vs. operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4,
and DRA. PERFECTA GUTIERREZ, respondents. 10, 17).
A day before the scheduled date of operation, she was admitted
KAPUNAN, J.: at one of the rooms of the DLSMC, located along E. Rodriguez
The Hippocratic Oath mandates physicians to give primordial consideration to the Avenue, Quezon City (TSN, October 19,1989, p. 11).
health and welfare of their patients. If a doctor fails to live up to this precept, he At around 7:30 A.M. of June 17, 1985 and while still in her
is made accountable for his acts. A mistake, through gross negligence or room, she was prepared for the operation by the hospital staff.
incompetence or plain human error, may spell the difference between life and Her sister-in-law, Herminda Cruz, who was the Dean of the
death. In this sense, the doctor plays God on his patient's fate. 1 College of Nursing at the Capitol Medical Center, was also there
In the case at bar, the Court is called upon to rule whether a surgeon, an for moral support. She reiterated her previous request for
anesthesiologist and a hospital should be made liable for the unfortunate Herminda to be with her even during the operation. After
comatose condition of a patient scheduled for cholecystectomy. 2 praying, she was given injections. Her hands were held by
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 Herminda as they went down from her room to the operating
May 1995, which overturned the decision 4 of the Regional Trial Court, dated 30 room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio,
January 1992, finding private respondents liable for damages arising from was also with her (TSN, October 19, 1989, p. 18). At the
negligence in the performance of their professional duties towards petitioner operating room, Herminda saw about two or three nurses and
Erlinda Ramos resulting in her comatose condition. Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital
The antecedent facts as summarized by the trial court are reproduced hereunder: staff, Herminda introduced herself as Dean of the College of
Plaintiff Erlinda Ramos was, until the afternoon of June 17, Nursing at the Capitol Medical Center who was to provide moral
1985, a 47-year old (Exh. "A") robust woman (TSN, October 19, support to the patient, to them. Herminda was allowed to stay
1989, p. 10). Except for occasional complaints of discomfort due inside the operating room.
to pains allegedly caused by the presence of a stone in her gall At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to
bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as look for Dr. Hosaka who was not yet in (TSN, January 13, 1988,
any other woman. Married to Rogelio E. Ramos, an executive of pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
Philippine Long Distance Telephone Company, she has three about the prospect of a delay in the arrival of Dr. Hosaka.
children whose names are Rommel Ramos, Roy Roderick Ramos Herminda then went back to the patient who asked, "Mindy,
and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6). wala pa ba ang Doctor"? The former replied, "Huwag kang mag-
Because the discomforts somehow interfered with her normal alaala, darating na iyon" (Ibid.).
ways, she sought professional advice. She was advised to Thereafter, Herminda went out of the operating room and
undergo an operation for the removal of a stone in her gall informed the patient's husband, Rogelio, that the doctor was not
bladder (TSN, January 13, 1988, p. 5). She underwent a series of yet around (id., p. 13). When she returned to the operating
examinations which included blood and urine tests (Exhs. "A" room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
and "C") which indicated she was fit for surgery. ako ng ibang Doctor." So, she went out again and told Rogelio
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, about what the patient said (id., p. 15). Thereafter, she
January 13, 1988, p. 7), she and her husband Rogelio met for returned to the operating room.
the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, At around 10:00 A.M., Rogelio E. Ramos was "already dying [and]
February 20, 1990, p. 3), one of the defendants in this case, on waiting for the arrival of the doctor" even as he did his best to
June 10, 1985. They agreed that their date at the operating find somebody who will allow him to pull out his wife from the
table at the DLSMC (another defendant), would be on June 17, operating room (TSN, October 19, 1989, pp. 19-20). He also
1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a thought of the feeling of his wife, who was inside the operating
"cholecystectomy" operation after examining the documents room waiting for the doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was Doctors Gutierrez and Hosaka were also asked by the hospital to
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While explain what happened to the patient. The doctors explained
talking to Dr. Garcia at around 12:10 P.M., he came to know that the patient had bronchospasm (TSN, November 15, 1990,
that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. pp. 26-27).
Hosaka, dumating na raw." Upon hearing those words, he went Erlinda Ramos stayed at the ICU for a month. About four months
down to the lobby and waited for the operation to be completed thereafter or on November 15, 1985, the patient was released
(id., pp. 16, 29-30). from the hospital.
At about 12:15 P.M., Herminda Cruz, who was inside the During the whole period of her confinement, she incurred
operating room with the patient, heard somebody say that "Dr. hospital bills amounting to P93,542.25 which is the subject of a
Hosaka is already here." She then saw people inside the promissory note and affidavit of undertaking executed by
operating room "moving, doing this and that, [and] preparing Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon
the patient for the operation" (TSN, January 13, 1988, p. 16). As of June 17, 1985, she has been in a comatose condition. She
she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez cannot do anything. She cannot move any part of her body. She
intubating the hapless patient. She thereafter heard Dr. cannot see or hear. She is living on mechanical means. She
Gutierrez say, "ang hirap ma-intubate nito, mali yata ang suffered brain damage as a result of the absence of oxygen in
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the her brain for four to five minutes (TSN, November 9, 1989, pp.
remarks of Dra. Gutierrez, she focused her attention on what 21-22). After being discharged from the hospital, she has been
Dr. Gutierrez was doing. She thereafter noticed bluish staying in their residence, still needing constant medical
discoloration of the nailbeds of the left hand of the hapless attention, with her husband Rogelio incurring a monthly expense
Erlinda even as Dr. Hosaka approached her. She then heard Dr. ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989,
Hosaka issue an order for someone to call Dr. Calderon, another pp. 32-34). She was also diagnosed to be suffering from "diffuse
anesthesiologist (id., p. 19). After Dr. Calderon arrived at the cerebral parenchymal damage" (Exh. "G"; see also TSN,
operating room, she saw this anesthesiologist trying to intubate December 21, 1989,
the patient. The patient's nailbed became bluish and the patient p. 6). 5
was placed in a trendelenburg position — a position where the
head of the patient is placed in a position lower than her feet Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the
which is an indication that there is a decrease of blood supply to Regional Trial Court of Quezon City against herein private respondents alleging
the patient's brain (Id., pp. 19-20). Immediately thereafter, she negligence in the management and care of Erlinda Ramos.
went out of the operating room, and she told Rogelio E. Ramos During the trial, both parties presented evidence as to the possible cause of
"that something wrong was . . . happening" (Ibid.). Dr. Calderon Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda Cruz and
was then able to intubate the patient (TSN, July 25, 1991, p. 9). Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of
Meanwhile, Rogelio, who was outside the operating room, saw a oxygen in her brain caused by the faulty management of her airway by private
respiratory machine being rushed towards the door of the respondents during the anesthesia phase. On the other hand, private respondents
operating room. He also saw several doctors rushing towards the primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist,
operating room. When informed by Herminda Cruz that to the effect that the cause of brain damage was Erlinda's allergic reaction to the
something wrong was happening, he told her (Herminda) to be anesthetic agent, Thiopental Sodium (Pentothal).
back with the patient inside the operating room (TSN, October After considering the evidence from both sides, the Regional Trial Court rendered
19, 1989, pp. 25-28). judgment in favor of petitioners, to wit:
Herminda Cruz immediately rushed back, and saw that the After evaluating the evidence as shown in the finding of facts
patient was still in trendelenburg position (TSN, January 13, set forth earlier, and applying the aforecited provisions of law
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw and jurisprudence to the case at bar, this Court finds and so
the patient taken to the Intensive Care Unit (ICU). holds that defendants are liable to plaintiffs for damages. The
About two days thereafter, Rogelio E. Ramos was able to talk to defendants were guilty of, at the very least, negligence in the
Dr. Hosaka. The latter informed the former that something went performance of their duty to plaintiff-patient Erlinda Ramos.
wrong during the intubation. Reacting to what was told to him, On the part of Dr. Perfecta Gutierrez, this Court finds that she
Rogelio reminded the doctor that the condition of his wife omitted to exercise reasonable care in not only intubating the
would not have happened, had he (Dr. Hosaka) looked for a patient, but also in not repeating the administration of atropine
good anesthesiologist (TSN, October 19, 1989, p. 31). (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] SO ORDERED.
patient, the patient's nailbed became bluish and the patient, Private respondents seasonably interposed an appeal to the Court of Appeals. The
thereafter, was placed in trendelenburg position, because of the appellate court rendered a Decision, dated 29 May 1995, reversing the findings of
decrease of blood supply to the patient's brain. The evidence the trial court. The decretal portion of the decision of the appellate court reads:
further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patient's) brain for WHEREFORE, for the foregoing premises the appealed decision is
approximately four to five minutes which, in turn, caused the hereby REVERSED, and the complaint below against the
patient to become comatose. appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only
On the part of Dr. Orlino Hosaka, this Court finds that he is insofar as appellees are hereby ordered to pay the unpaid
liable for the acts of Dr. Perfecta Gutierrez whom he had hospital bills amounting to P93,542.25, plus legal interest for
chosen to administer anesthesia on the patient as part of his justice must be tempered with mercy.
obligation to provide the patient a good anesthesiologist', and 8
for arriving for the scheduled operation almost three (3) hours SO ORDERED.
late. The decision of the Court of Appeals was received on 9 June 1995 by petitioner
On the part of DLSMC (the hospital), this Court finds that it is Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of
liable for the acts of negligence of the doctors in their "practice the decision, however, was sent nor received by the Coronel Law Office, then
of medicine" in the operating room. Moreover, the hospital is counsel on record of petitioners. Rogelio referred the decision of the appellate
liable for failing through its responsible officials, to cancel the court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before
scheduled operation after Dr. Hosaka inexcusably failed to the expiration of the reglementary period for filing a motion for reconsideration.
arrive on time. 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
In having held thus, this Court rejects the defense raised by reconsideration was submitted on 4 July 1995. However, the appellate court
defendants that they have acted with due care and prudence in denied the motion for extension of time in its Resolution dated 25 July
rendering medical services to plaintiff-patient. For if the 1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty.
patient was properly intubated as claimed by them, the patient Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
would not have become comatose. And, the fact that another admit the motion for reconsideration contending that the period to file the
anesthesiologist was called to try to intubate the patient after appropriate pleading on the assailed decision had not yet commenced to run as
her (the patient's) nailbed turned bluish, belie their claim. the Division Clerk of Court of the Court of Appeals had not yet served a copy
Furthermore, the defendants should have rescheduled the thereof to the counsel on record. Despite this explanation, the appellate court
operation to a later date. This, they should have done, if still denied the motion to admit the motion for reconsideration of petitioners in
defendants acted with due care and prudence as the patient's its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
case was an elective, not an emergency case. (15) period for filing a motion for reconsideration had already expired, to wit:
xxx xxx xxx We said in our Resolution on July 25, 1995, that the filing of a
WHEREFORE, and in view of the foregoing, judgment is rendered Motion for Reconsideration cannot be extended; precisely, the
in favor of the plaintiffs and against the defendants. Motion for Extension (Rollo, p. 12) was denied. It is, on the
Accordingly, the latter are ordered to pay, jointly and severally, other hand, admitted in the latter Motion that
the former the following sums of money, to wit: plaintiffs/appellees received a copy of the decision as early as
1) the sum of P8,000.00 as actual monthly June 9, 1995. Computation wise, the period to file a Motion for
expenses for the plaintiff Erlinda Ramos Reconsideration expired on June 24. The Motion for
reckoned from November 15, 1985 or in the Reconsideration, in turn, was received by the Court of Appeals
total sum of P632,000.00 as of April 15, 1992, already on July 4, necessarily, the 15-day period already passed.
subject to its being updated; For that alone, the latter should be denied.

2) the sum of P100,000.00 as reasonable Even assuming admissibility of the Motion for the
attorney's fees; Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby
3) the sum of P800,000.00 by way of moral DENIED.
damages and the further sum of P200,000,00 10
by way of exemplary damages; and, SO ORDERED.

4) the costs of the suit. 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 After resolving the foregoing procedural issue, we shall now look into the merits
Court granted the motion for extension of time and gave petitioners additional of the case. For a more logical presentation of the discussion we shall first
thirty (30) days after the expiration of the fifteen-day (15) period counted from consider the issue on the applicability of the doctrine of res ipsa loquitur to the
the receipt of the resolution of the Court of Appeals within which to submit the instant case. Thereafter, the first two assigned errors shall be tackled in relation
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, to the res ipsa loquitur doctrine.
well within the extended period given by the Court. Res ipsa loquitur is a Latin phrase which literally means "the thing or the
Petitioners assail the decision of the Court of Appeals on the following grounds: transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the
I 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
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF make out a plaintiff's prima faciecase, and present a question of fact for
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. defendant to meet with an explanation. 13 Where the thing which caused the
JAMORA; injury complained of is shown to be under the management of the defendant or
II 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
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11 occurrences may justify an inference of negligence on the part of the person who
Before we discuss the merits of the case, we shall first dispose of the procedural controls the instrumentality causing the injury in the absence of some explanation
issue on the timeliness of the petition in relation to the motion for by the defendant who is charged with negligence. 15 It is grounded in the superior
reconsideration filed by petitioners with the Court of Appeals. In their logic of ordinary human experience and on the basis of such experience or
Comment, 12 private respondents contend that the petition should not be given common knowledge, negligence may be deduced from the mere occurrence of the
due course since the motion for reconsideration of the petitioners on the decision accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the
of the Court of Appeals was validly dismissed by the appellate court for having doctrine of common knowledge.
been filed beyond the reglementary period. We do not agree. However, much has been said that res ipsa loquitur is not a rule of substantive
A careful review of the records reveals that the reason behind the delay in filing law and, as such, does not create or constitute an independent or separate
the motion for reconsideration is attributable to the fact that the decision of the ground of liability. 17 Instead, it is considered as merely evidentiary or in the
Court of Appeals was not sent to then counsel on record of petitioners, the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere
Coronel Law Office. In fact, a copy of the decision of the appellate court was procedural of convenience since it furnishes a substitute for, and relieves a
instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein plaintiff of, the burden of producing specific proof of negligence. 19 In other
he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other words, mere invocation and application of the doctrine does not dispense with the
communications received by petitioner Rogelio Ramos, the appellate court requirement of proof of negligence. It is simply a step in the process of such
apparently mistook him for the counsel on record. Thus, no copy of the decision proof, permitting the plaintiff to present along with the proof of the accident,
of the counsel on record. Petitioner, not being a lawyer and unaware of the enough of the attending circumstances to invoke the doctrine, creating an
prescriptive period for filing a motion for reconsideration, referred the same to a inference or presumption of negligence, and to thereby place on the defendant
legal counsel only on 20 June 1995. the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
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 1. The accident is of a kind which ordinarily does not occur in
litigant without notice to his counsel on record is no notice at all. In the present the absence of someone's negligence;
case, since a copy of the decision of the appellate court was not sent to the 2. It is caused by an instrumentality within the exclusive control
counsel on record of petitioner, there can be no sufficient notice to speak of. of the defendant or defendants; and
Hence, the delay in the filing of the motion for reconsideration cannot be taken
3. The possibility of contributing conduct which would make the
against petitioner. Moreover, since the Court of Appeals already issued a second
plaintiff responsible is eliminated.21
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we In the above requisites, the fundamental element is the "control of
believed that the receipt of the former should be considered in determining the instrumentality" which caused the damage. 22Such element of control must be
timeliness of the filing of the present petition. Based on this, the petition before shown to be within the dominion of the defendant. In order to have the benefit of
us was submitted on time. 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 depending upon the circumstances of each case. It is generally restricted to
the doctrine were present in a particular incident. 23 situations in malpractice cases where a layman is able to say, as a matter of
Medical malpractice 24 cases do not escape the application of this doctrine. common knowledge and observation, that the consequences of professional care
Thus, res ipsa loquitur has been applied when the circumstances attendant upon were not as such as would ordinarily have followed if due care had been
the harm are themselves of such a character as to justify an inference of exercised. 37 A distinction must be made between the failure to secure results,
negligence as the cause of that harm. 25 The application of res ipsa loquitur in and the occurrence of something more unusual and not ordinarily found if the
medical negligence cases presents a question of law since it is a judicial function service or treatment rendered followed the usual procedure of those skilled in
to determine whether a certain set of circumstances does, as a matter of law, that particular practice. It must be conceded that the doctrine of res ipsa
permit a given inference. 26 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
Although generally, expert medical testimony is relied upon in malpractice suits surgeon is not required at his peril to explain why any particular diagnosis was not
to prove that a physician has done a negligent act or that he has deviated from correct, or why any particular scientific treatment did not produce the desired
the standard medical procedure, when the doctrine of res ipsa loquitur is availed result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only
by the plaintiff, the need for expert medical testimony is dispensed with because showing is that the desired result of an operation or treatment was not
the injury itself provides the proof of negligence. 27 The reason is that the general accomplished. 40The real question, therefore, is whether or not in the process of
rule on the necessity of expert testimony applies only to such matters clearly the operation any extraordinary incident or unusual event outside of the routine
within the domain of medical science, and not to matters that are within the performance occurred which is beyond the regular scope of customary
common knowledge of mankind which may be testified to by anyone familiar with professional activity in such operations, which, if unexplained would themselves
the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are reasonably speak to the average man as the negligent cause or causes of the
competent to testify as to whether a patient has been treated or operated upon untoward consequence. 41 If there was such extraneous interventions, the
with a reasonable degree of skill and care. However, testimony as to the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
statements and acts of physicians and surgeons, external appearances, and explain the matter, by evidence of exculpation, if he could. 42
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 We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
is permitted to find a physician negligent upon proper proof of injury to the hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
patient, without the aid of expert testimony, where the court from its fund of scheduled gall bladder operation presents a case for the application of res ipsa
common knowledge can determine the proper standard of care. 30Where common loquitur.
knowledge and experience teach that a resulting injury would not have occurred A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the
to the patient if due care had been exercised, an inference of negligence may be Kansas Supreme Court in applying the res ipsa loquitur stated:
drawn giving rise to an application of the doctrine of res ipsa loquitur without The plaintiff herein submitted himself for a mastoid operation
medical evidence, which is ordinarily required to show not only what occurred but and delivered his person over to the care, custody and control
how and why it occurred. 31 When the doctrine is appropriate, all that the patient of his physician who had complete and exclusive control over
must do is prove a nexus between the particular act or omission complained of him, but the operation was never performed. At the time of
and the injury sustained while under the custody and management of the submission he was neurologically sound and physically fit in
defendant without need to produce expert medical testimony to establish the mind and body, but he suffered irreparable damage and injury
standard of care. Resort to res ipsa loquitur is allowed because there is no other rendering him decerebrate and totally incapacitated. The injury
way, under usual and ordinary conditions, by which the patient can obtain redress was one which does not ordinarily occur in the process of a
for injury suffered by him. mastoid operation or in the absence of negligence in the
Thus, courts of other jurisdictions have applied the doctrine in the following administration of an anesthetic, and in the use and employment
situations: leaving of a foreign object in the body of the patient after an of an endoctracheal tube. Ordinarily a person being put under
operation, 32 injuries sustained on a healthy part of the body which was not anesthesia is not rendered decerebrate as a consequence of
under, or in the area, of treatment, 33 removal of the wrong part of the body administering such anesthesia in the absence of negligence.
when another part was intended, 34knocking out a tooth while a patient's jaw was Upon these facts and under these circumstances a layman would
under anesthetic for the removal of his tonsils, 35 and loss of an eye while the be able to say, as a matter of common knowledge and
patient plaintiff was under the influence of anesthetic, during or following an observation, that the consequences of professional treatment
operation for appendicitis, 36among others. were not as such as would ordinarily have followed if due care
Nevertheless, despite the fact that the scope of res ipsa loquitur has been had been exercised.
measurably enlarged, it does not automatically apply to all cases of medical Here the plaintiff could not have been guilty of contributory
negligence as to mechanically shift the burden of proof to the defendant to show negligence because he was under the influence of anesthetics
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or and unconscious, and the circumstances are such that the true
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, explanation of event is more accessible to the defendants than
to the plaintiff for they had the exclusive control of the Court of Appeals erred in relying on the testimonies of the witnesses for the
instrumentalities of anesthesia. private respondents.
Upon all the facts, conditions and circumstances alleged in In sustaining the position of private respondents, the Court of Appeals relied on
Count II it is held that a cause of action is stated under the the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight
doctrine of res ipsa loquitur. 44 to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was
Indeed, the principles enunciated in the aforequoted case apply with equal force candid enough to admit that she experienced some difficulty in the endotracheal
here. In the present case, Erlinda submitted herself for cholecystectomy and intubation 45 of the patient and thus, cannot be said to be covering her negligence
expected a routine general surgery to be performed on her gall bladder. On that with falsehood. The appellate court likewise opined that private respondents
fateful day she delivered her person over to the care, custody and control of were able to show that the brain damage sustained by Erlinda was not caused by
private respondents who exercised complete and exclusive control over her. At the alleged faulty intubation but was due to the allergic reaction of the patient to
the time of submission, Erlinda was neurologically sound and, except for a few the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on
minor discomforts, was likewise physically fit in mind and body. However, during by their expert witness, Dr. Jamora. On the other hand, the appellate court
the administration of anesthesia and prior to the performance of cholecystectomy rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that
she suffered irreparable damage to her brain. Thus, without undergoing surgery, the cause of the brain injury was traceable to the wrongful insertion of the tube
she went out of the operating room already decerebrate and totally since the latter, being a nurse, was allegedly not knowledgeable in the process of
incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury intubation. In so holding, the appellate court returned a verdict in favor of
which does not normally occur in the process of a gall bladder operation. In fact, respondents physicians and hospital and absolved them of any liability towards
this kind of situation does not in the absence of negligence of someone in the Erlinda and her family.
administration of anesthesia and in the use of endotracheal tube. Normally, a We disagree with the findings of the Court of Appeals. We hold that private
person being put under anesthesia is not rendered decerebrate as a consequence respondents were unable to disprove the presumption of negligence on their part
of administering such anesthesia if the proper procedure was followed. in the care of Erlinda and their negligence was the proximate cause of her piteous
Furthermore, the instruments used in the administration of anesthesia, including condition.
the endotracheal tube, were all under the exclusive control of private In the instant case, the records are helpful in furnishing not only the logical
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could scientific evidence of the pathogenesis of the injury but also in providing the
not have been guilty of contributory negligence because she was under the Court the legal nexus upon which liability is based. As will be shown hereinafter,
influence of anesthetics which rendered her unconscious. private respondents' own testimonies which are reflected in the transcript of
Considering that a sound and unaffected member of the body (the brain) is stenographic notes are replete of signposts indicative of their negligence in the
injured or destroyed while the patient is unconscious and under the immediate care and management of Erlinda.
and exclusive control of the physicians, we hold that a practical administration of With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during
justice dictates the application of res ipsa loquitur. Upon these facts and under the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed
these circumstances the Court would be able to say, as a matter of common to properly intubate the patient. This fact was attested to by Prof. Herminda
knowledge and observation, if negligence attended the management and care of Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-
the patient. Moreover, the liability of the physicians and the hospital in this case in-law, who was in the operating room right beside the patient when the tragic
is not predicated upon an alleged failure to secure the desired results of an event occurred. Witness Cruz testified to this effect:
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 ATTY. PAJARES:
determination a case is made out for the application of the doctrine of res ipsa Q: In particular, what did Dra. Perfecta Gutierrez do, if any on
loquitur. the patient?
Nonetheless, in holding that res ipsa loquitur is available to the present case we A: In particular, I could see that she was intubating the patient.
are not saying that the doctrine is applicable in any and all cases where injury
Q: Do you know what happened to that intubation process
occurs to a patient while under anesthesia, or to any and all anesthesia cases.
administered by Dra. Gutierrez?
Each case must be viewed in its own light and scrutinized in order to be within
the res ipsa loquitur coverage. ATTY. ALCERA:
Having in mind the applicability of the res ipsa loquitur doctrine and the She will be incompetent Your Honor.
presumption of negligence allowed therein, the Court now comes to the issue of COURT:
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, Witness may answer if she knows.
if in the affirmative, whether the alleged negligence was the proximate cause of A: As have said, I was with the patient, I was beside the
Erlinda's comatose condition. Corollary thereto, we shall also determine if the stretcher holding the left hand of the patient and all of a
sudden heard some remarks coming from Dra. Perfecta auscultated the patient or that she conducted any type of
Gutierrez herself. She was saying "Ang hirap ma-intubate nito, examination to check if the endotracheal tube was in its proper
mali yata ang pagkakapasok. O lumalaki ang tiyan. place, and to determine the condition of the heart, lungs, and
xxx xxx xxx other organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee Erlinda
ATTY. PAJARES: Ramos and that it was Dra. Calderon who succeeded in doing so
Q: From whom did you hear those words "lumalaki ang tiyan"? clearly suffer from lack of sufficient factual bases. 47
A: From Dra. Perfecta Gutierrez. 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
xxx xxx xxx
competent to testify on whether or not the intubation was a success.
Q: After hearing the phrase "lumalaki ang tiyan," what did you
We do not agree with the above reasoning of the appellate court. Although
notice on the person of the patient?
witness Cruz is not an anesthesiologist, she can very well testify upon matters on
A: I notice (sic) some bluish discoloration on the nailbeds of the which she is capable of observing such as, the statements and acts of the
left hand where I was at. physician and surgeon, external appearances, and manifest conditions which are
Q: Where was Dr. Orlino Ho[s]aka then at that particular time? 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
A: I saw him approaching the patient during that time. accepted rule that expert testimony is not necessary for the proof of negligence
Q: When he approached the patient, what did he do, if any? 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
A: He made an order to call on the anesthesiologist in the
render expert testimony unnecessary. 49 We take judicial notice of the fact that
person of Dr. Calderon.
anesthesia procedures have become so common, that even an ordinary person can
Q: Did Dr. Calderon, upon being called, arrive inside the tell if it was administered properly. As such, it would not be too difficult to tell if
operating room? the tube was properly inserted. This kind of observation, we believe, does not
A: Yes sir. require a medical degree to be acceptable.
Q: What did [s]he do, if any? 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
A: [S]he tried to intubate the patient. Capitol Medical Center School at Nursing, was fully capable of determining
Q: What happened to the patient? whether or not the intubation was a success. She had extensive clinical
A: When Dr. Calderon try (sic) to intubate the patient, after a experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
while the patient's nailbed became bluish and I saw the patient instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
was placed in trendelenburg position. Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. 50Reviewing witness Cruz' statements, we find that the same were
xxx xxx xxx delivered in a straightforward manner, with the kind of detail, clarity,
Q: Do you know the reason why the patient was placed in that consistency and spontaneity which would have been difficult to fabricate. With
trendelenburg position? 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.
A: As far as I know, when a patient is in that position, there is a
decrease of blood supply to the brain. 46 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
xxx xxx xxx
trachea, to wit:
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court
by declaring that:
Q: In this particular case, Doctora, while you were intubating at
A perusal of the standard nursing curriculum in our country will
your first attempt (sic), you did not immediately see the
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 DRA. GUTIERREZ:
that she is fully capable of determining whether or not a patient A: Yes sir.
is properly intubated, witness Herminda Cruz, admittedly, did
not peep into the throat of the patient. (TSN, July 25, 1991, p. Q: Did you pull away the tube immediately?
13). More importantly, there is no evidence that she ever A: You do not pull the . . .
Q: Did you or did you not? Respondent Dra. Gutierrez, however, attempts to gloss over this omission by
A: I did not pull the tube. 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
Q: When you said "mahirap yata ito," what were you referring difference between an elective surgery and an emergency surgery just so her
to? failure to perform the required pre-operative evaluation would escape unnoticed.
A: "Mahirap yata itong i-intubate," that was the patient. In her testimony she asserted:
Q: So, you found some difficulty in inserting the tube? ATTY. LIGSAY:
A: Yes, because of (sic) my first attempt, I did not see right Q: Would you agree, Doctor, that it is good medical practice to
away. 51 see the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gain the trust and
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard
confidence of the patient?
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 DRA. GUTIERREZ:
normal anatomy of a person) 52 making it harder to locate and, since Erlinda is A: As I said in my previous statement, it depends on the
obese and has a short neck and protruding teeth, it made intubation even more operative procedure of the anesthesiologist and in my case, with
difficult. elective cases and normal cardio-pulmonary clearance like that,
The argument does not convince us. If this was indeed observed, private I usually don't do it except on emergency and on cases that have
respondents adduced no evidence demonstrating that they proceeded to make a an abnormalities (sic). 58
thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even However, the exact opposite is true. In an emergency procedure, there is hardly
if this would mean postponing the procedure. From their testimonies, it appears enough time available for the fastidious demands of pre-operative procedure so
that the observation was made only as an afterthought, as a means of defense. that an anesthesiologist is able to see the patient only a few minutes before
The pre-operative evaluation of a patient prior to the administration of surgery, if at all. Elective procedures, on the other hand, are operative
anesthesia is universally observed to lessen the possibility of anesthetic accidents. procedures that can wait for days, weeks or even months. Hence, in these cases,
Pre-operative evaluation and preparation for anesthesia begins when the the anesthesiologist possesses the luxury of time to be at the patient's beside to
anesthesiologist reviews the patient's medical records and visits with the patient, do a proper interview and clinical evaluation. There is ample time to explain the
traditionally, the day before elective surgery. 53 It includes taking the patient's method of anesthesia, the drugs to be used, and their possible hazards for
medical history, review of current drug therapy, physical examination and purposes of informed consent. Usually, the pre-operative assessment is conducted
interpretation of laboratory data. 54 The physical examination performed by the at least one day before the intended surgery, when the patient is relaxed and
anesthesiologist is directed primarily toward the central nervous system, cooperative.
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the Erlinda's case was elective and this was known to respondent Dra. Gutierrez.
patient's airway normally involves investigating the following: cervical spine Thus, she had all the time to make a thorough evaluation of Erlinda's case prior to
mobility, temporomandibular mobility, prominent central incisors, diseased or the operation and prepare her for anesthesia. However, she never saw the patient
artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus, at the bedside. She herself admitted that she had seen petitioner only in the
physical characteristics of the patient's upper airway that could make tracheal operating room, and only on the actual date of the cholecystectomy. She
intubation difficult should be studied. 57 Where the need arises, as when initial negligently failed to take advantage of this important opportunity. As such, her
assessment indicates possible problems (such as the alleged short neck and attempt to exculpate herself must fail.
protruding teeth of Erlinda) a thorough examination of the patient's airway would
go a long way towards decreasing patient morbidity and mortality. Having established that respondent Dra. Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn, resulted to a wrongful intubation, we
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for now determine if the faulty intubation is truly the proximate cause of Erlinda's
the first time on the day of the operation itself, on 17 June 1985. Before this comatose condition.
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 Private respondents repeatedly hammered the view that the cerebral anoxia
the physiological make-up and needs of Erlinda. She was likewise not properly which led to Erlinda's coma was due to bronchospasm 59 mediated by her allergic
informed of the possible difficulties she would face during the administration of response to the drug, Thiopental Sodium, introduced into her system. Towards
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the this end, they presented Dr. Jamora, a Fellow of the Philippine College of
first time only an hour before the scheduled operative procedure was, therefore, Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine,
an act of exceptional negligence and professional irresponsibility. The measures who advanced private respondents' theory that the oxygen deprivation which led
cautioning prudence and vigilance in dealing with human lives lie at the core of to anoxic encephalopathy, 60 was due to an unpredictable drug reaction to the
the physician's centuries-old Hippocratic Oath. Her failure to follow this medical short-acting barbiturate. We find the theory of private respondents unacceptable.
procedure is, therefore, a clear indicia of her negligence.
First of all, Dr. Jamora cannot be considered an authority in the field of The provision in the rules of evidence regarding expert witnesses states:
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a Sec. 49. Opinion of expert witness. — The opinion of a witness
pulmonologist, he could not have been capable of properly enlightening the court on a matter requiring special knowledge, skill, experience or
about anesthesia practice and procedure and their complications. Dr. Jamora is training which he is shown to possess, may be received in
likewise not an allergologist and could not therefore properly advance expert evidence.
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 Generally, to qualify as an expert witness, one must have acquired special
court the pharmacologic and toxic effects of the supposed culprit, Thiopental knowledge of the subject matter about which he or she is to testify, either by the
Sodium (Pentothal). 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 inappropriateness and absurdity of accepting Dr. Jamora's testimony as an the above standard since he lacks the necessary knowledge, skill, and training in
expert witness in the anesthetic practice of Pentothal administration is further the field of anesthesiology. Oddly, apart from submitting testimony from a
supported by his own admission that he formulated his opinions on the drug not specialist in the wrong field, private respondents' intentionally avoided providing
from the practical experience gained by a specialist or expert in the testimony by competent and independent experts in the proper areas.
administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit: Moreover, private respondents' theory, that Thiopental Sodium may have
produced Erlinda's coma by triggering an allergic mediated response, has no
ATTY. LIGSAY: support in evidence. No evidence of stridor, skin reactions, or wheezing — some
Q: In your line of expertise on pulmonology, did you have any of the more common accompanying signs of an allergic reaction — appears on
occasion to use pentothal as a method of management? record. No laboratory data were ever presented to the court.
DR. JAMORA: In any case, private respondents themselves admit that Thiopental induced,
A: We do it in conjunction with the anesthesiologist when they allergic-mediated bronchospasm happens only very rarely. If courts were to
have to intubate our patient. accept private respondents' hypothesis without supporting medical proof, and
against the weight of available evidence, then every anesthetic accident would be
Q: But not in particular when you practice pulmonology? an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by
A: No. 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
Q: In other words, your knowledge about pentothal is based only
patient's condition.
on what you have read from books and not by your own personal
application of the medicine pentothal? 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
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
Proximate cause has been defined as that which, in natural and continuous
A: They used it on me. I went into bronchospasm during my sequence, unbroken by any efficient intervening cause, produces injury, and
appendectomy. without which the result would not have occurred. 64 An injury or damage is
Q: And because they have used it on you and on account of your proximately caused by an act or a failure to act, whenever it appears from the
own personal experience you feel that you can testify on evidence in the case, that the act or omission played a substantial part in bringing
pentothal here with medical authority? 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
A: No. That is why I used references to support my claims. 61 omission. 65 It is the dominant, moving or producing cause.
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls Applying the above definition in relation to the evidence at hand, faulty
within the fields of anesthesia, internal medicine-allergy, and clinical intubation is undeniably the proximate cause which triggered the chain of events
pharmacology. The resulting anoxic encephalopathy belongs to the field of leading to Erlinda's brain damage and, ultimately, her comatosed condition.
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic Private respondents themselves admitted in their testimony that the first
drug-induced, allergic mediated bronchospasm alleged in this case is within the intubation was a failure. This fact was likewise observed by witness Cruz when
disciplines of anesthesiology, allergology and pharmacology. On the basis of the she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali
foregoing transcript, in which the pulmonologist himself admitted that he could yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
not testify about the drug with medical authority, it is clear that the appellate abdominal distention on the body of Erlinda. The development of abdominal
court erred in giving weight to Dr. Jamora's testimony as an expert in the distention, together with respiratory embarrassment indicates that the
administration of Thiopental Sodium. 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 over three hours late for the latter's operation. Because of this, he had little or no
has entered the gastrointestinal tract through the esophagus instead of the lungs time to confer with his anesthesiologist regarding the anesthesia delivery. This
through the trachea. Entry into the esophagus would certainly cause some delay indicates that he was remiss in his professional duties towards his patient. Thus,
in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong he shares equal responsibility for the events which resulted in Erlinda's condition.
place. That abdominal distention had been observed during the first intubation We now discuss the responsibility of the hospital in this particular incident. The
suggests that the length of time utilized in inserting the endotracheal tube (up to unique practice (among private hospitals) of filling up specialist staff with
the time the tube was withdrawn for the second attempt) was fairly significant. attending and visiting "consultants," 74 who are allegedly not hospital employees,
Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of presents problems in apportioning responsibility for negligence in medical
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became malpractice cases. However, the difficulty is only more apparent than real.
apparent only after he noticed that the nailbeds of Erlinda were already
blue. 67 However, private respondents contend that a second intubation was In the first place, hospitals exercise significant control in the hiring and firing of
executed on Erlinda and this one was successfully done. We do not think so. No consultants and in the conduct of their work within the hospital premises. Doctors
evidence exists on record, beyond private respondents' bare claims, which who apply for "consultant" slots, visiting or attending, are required to submit
supports the contention that the second intubation was successful. Assuming that proof of completion of residency, their educational qualifications; generally,
the endotracheal tube finally found its way into the proper orifice of the trachea, evidence of accreditation by the appropriate board (diplomate), evidence of
the same gave no guarantee of oxygen delivery, the hallmark of a successful fellowship in most cases, and references. These requirements are carefully
intubation. In fact, cyanosis was again observed immediately after the second scrutinized by members of the hospital administration or by a review committee
intubation. Proceeding from this event (cyanosis), it could not be claimed, as set up by the hospital who either accept or reject the application. 75 This is
private respondents insist, that the second intubation was accomplished. Even particularly true with respondent hospital.
granting that the tube was successfully inserted during the second attempt, it was After a physician is accepted, either as a visiting or attending consultant, he is
obviously too late. As aptly explained by the trial court, Erlinda already suffered normally required to attend clinico-pathological conferences, conduct bedside
brain damage as a result of the inadequate oxygenation of her brain for about rounds for clerks, interns and residents, moderate grand rounds and patient audits
four to five minutes. 68 and perform other tasks and responsibilities, for the privilege of being able to
The above conclusion is not without basis. Scientific studies point out that maintain a clinic in the hospital, and/or for the privilege of admitting patients
intubation problems are responsible for one-third (1/3) of deaths and serious into the hospital. In addition to these, the physician's performance as a specialist
injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or is generally evaluated by a peer review committee on the basis of mortality and
the vast majority of difficult intubations may be anticipated by performing a morbidity statistics, and feedback from patients, nurses, interns and residents. A
thorough evaluation of the patient's airway prior to the operation. 70 As stated consultant remiss in his duties, or a consultant who regularly falls short of the
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative minimum standards acceptable to the hospital or its peer review committee, is
protocol which could have prevented this unfortunate incident. Had appropriate normally politely terminated.
diligence and reasonable care been used in the pre-operative evaluation, In other words, private hospitals, hire, fire and exercise real control over their
respondent physician could have been much more prepared to meet the attending and visiting "consultant" staff. While "consultants" are not, technically
contingency brought about by the perceived anatomic variations in the patient's employees, a point which respondent hospital asserts in denying all responsibility
neck and oral area, defects which would have been easily overcome by a prior for the patient's condition, the control exercised, the hiring, and the right to
knowledge of those variations together with a change in technique. 71 In other terminate consultants all fulfill the important hallmarks of an employer-employee
words, an experienced anesthesiologist, adequately alerted by a thorough pre- relationship, with the exception of the payment of wages. In assessing whether
operative evaluation, would have had little difficulty going around the short neck such a relationship in fact exists, the control test is determining. Accordingly, on
and protruding teeth. 72 Having failed to observe common medical standards in the basis of the foregoing, we rule that for the purpose of allocating responsibility
pre-operative management and intubation, respondent Dra. Gutierrez' negligence in medical negligence cases, an employer-employee relationship in effect exists
resulted in cerebral anoxia and eventual coma of Erlinda. between hospitals and their attending and visiting physicians. This being the case,
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head the question now arises as to whether or not respondent hospital is solidarily
of the surgical team. As the so-called "captain of the ship," 73 it is the surgeon's liable with respondent doctors for petitioner's condition. 76
responsibility to see to it that those under him perform their task in the proper The basis for holding an employer solidarily responsible for the negligence of its
manner. Respondent Dr. Hosaka's negligence can be found in his failure to employee is found in Article 2180 of the Civil Code which considers a person
exercise the proper authority (as the "captain" of the operative team) in not accountable not only for his own acts but also for those of others based on the
determining if his anesthesiologist observed proper anesthesia protocols. In fact, former's responsibility under a relationship of patria potestas. 77 Such
no evidence on record exists to show that respondent Dr. Hosaka verified if responsibility ceases when the persons or entity concerned prove that they have
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does observed the diligence of a good father of the family to prevent damage. 78 In
not escape us that respondent Dr. Hosaka had scheduled another procedure in a other words, while the burden of proving negligence rests on the plaintiffs, once
different hospital at the same time as Erlinda's cholecystectomy, and was in fact 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 loss suffered by him as he has duly proved. Such compensation is
father of a family to prevent damage. referred to as actual or compensatory damages.
In the instant case, respondent hospital, apart from a general denial of its Our rules on actual or compensatory damages generally assume that at the time
responsibility over respondent physicians, failed to adduce evidence showing that of litigation, the injury suffered as a consequence of an act of negligence has
it exercised the diligence of a good father of a family in the hiring and supervision been completed and that the cost can be liquidated. However, these provisions
of the latter. It failed to adduce evidence with regard to the degree of neglect to take into account those situations, as in this case, where the resulting
supervision which it exercised over its physicians. In neglecting to offer such injury might be continuing and possible future complications directly arising from
proof, or proof of a similar nature, respondent hospital thereby failed to the injury, while certain to occur, are difficult to predict.
discharge its burden under the last paragraph of Article 2180. Having failed to do In these cases, the amount of damages which should be awarded, if they are to
this, respondent hospital is consequently solidarily responsible with its physicians adequately and correctly respond to the injury caused, should be one which
for Erlinda's condition. compensates for pecuniary loss incurred and proved, up to the time of
Based on the foregoing, we hold that the Court of Appeals erred in accepting and trial; and one which would meet pecuniary loss certain to be suffered but which
relying on the testimonies of the witnesses for the private respondents. Indeed, as could not, from the nature of the case, be made with certainty. 80 In other words,
shown by the above discussions, private respondents were unable to rebut the temperate damages can and should be awarded on top of actual or compensatory
presumption of negligence. Upon these disquisitions we hold that private damages in instances where the injury is chronic and continuing. And because of
respondents are solidarily liable for damages under Article 2176 79 of the Civil the unique nature of such cases, no incompatibility arises when both actual and
Code. temperate damages are provided for. The reason is that these damages cover two
We now come to the amount of damages due petitioners. The trial court awarded distinct phases.
a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to As it would not be equitable — and certainly not in the best interests of the
the plaintiff, "subject to its being updated" covering the period from 15 November administration of justice — for the victim in such cases to constantly come before
1985 up to 15 April 1992, based on monthly expenses for the care of the patient the courts and invoke their aid in seeking adjustments to the compensatory
estimated at P8,000.00. damages previously awarded — temperate damages are appropriate. The amount
At current levels, the P8000/monthly amount established by the trial court at the given as temperate damages, though to a certain extent speculative, should take
time of its decision would be grossly inadequate to cover the actual costs of into account the cost of proper care.
home-based care for a comatose individual. The calculated amount was not even In the instant case, petitioners were able to provide only home-based nursing care
arrived at by looking at the actual cost of proper hospice care for the patient. for a comatose patient who has remained in that condition for over a decade.
What it reflected were the actual expenses incurred and proved by the petitioners Having premised our award for compensatory damages on the amount provided by
after they were forced to bring home the patient to avoid mounting hospital bills. petitioners at the onset of litigation, it would be now much more in step with the
And yet ideally, a comatose patient should remain in a hospital or be transferred interests of justice if the value awarded for temperate damages would allow
to a hospice specializing in the care of the chronically ill for the purpose of petitioners to provide optimal care for their loved one in a facility which
providing a proper milieu adequate to meet minimum standards of care. In the generally specializes in such care. They should not be compelled by dire
instant case for instance, Erlinda has to be constantly turned from side to side to circumstances to provide substandard care at home without the aid of
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. professionals, for anything less would be grossly inadequate. Under the
Food preparation should be normally made by a dietitian to provide her with the circumstances, an award of P1,500,000.00 in temperate damages would therefore
correct daily caloric requirements and vitamin supplements. Furthermore, she has be reasonable. 81
to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation
by a pulmonary therapist to prevent the accumulation of secretions which can where the injury suffered by the plaintiff would have led to expenses which were
lead to respiratory complications. difficult to estimate because while they would have been a direct result of the
Given these considerations, the amount of actual damages recoverable in suits injury (amputation), and were certain to be incurred by the plaintiff, they were
arising from negligence should at least reflect the correct minimum cost of proper likely to arise only in the future. We awarded P1,000,000.00 in moral damages in
care, not the cost of the care the family is usually compelled to undertake at that case.
home to avoid bankruptcy. However, the provisions of the Civil Code on actual or Describing the nature of the injury, the Court therein stated:
compensatory damages present us with some difficulties. As a result of the accident, Ma. Lourdes Valenzuela underwent a
Well-settled is the rule that actual damages which may be claimed by the plaintiff traumatic amputation of her left lower extremity at the distal
are those suffered by him as he has duly proved. The Civil Code provides: left thigh just above the knee. Because of this, Valenzuela will
Art. 2199. — Except as provided by law or by stipulation, one is forever be deprived of the full ambulatory functions of her left
entitled to an adequate compensation only for such pecuniary 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 Finally, by way of example, exemplary damages in the amount of P100,000.00 are
in her prosthetic devise due to the shrinkage of the stump from hereby awarded. Considering the length and nature of the instant suit we are of
the process of healing. the opinion that attorney's fees valued at P100,000.00 are likewise proper.
These adjustments entail costs, prosthetic replacements and Our courts face unique difficulty in adjudicating medical negligence cases because
months of physical and occupational rehabilitation and therapy. physicians are not insurers of life and, they rarely set out to intentionally cause
During the lifetime, the prosthetic devise will have to be injury or death to their patients. However, intent is immaterial in negligence
replaced and readjusted to changes in the size of her lower limb cases because where negligence exists and is proven, the same automatically
effected by the biological changes of middle-age, menopause gives the injured a right to reparation for the damage caused.
and aging. Assuming she reaches menopause, for example, the Established medical procedures and practices, though in constant flux are devised
prosthetic will have to be adjusted to respond to the changes in for the purpose of preventing complications. A physician's experience with his
bone resulting from a precipitate decrease in calcium levels patients would sometimes tempt him to deviate from established community
observed in the bones of all post-menopausal women. In other practices, and he may end a distinguished career using unorthodox methods
words, the damage done to her would not only be permanent without incident. However, when failure to follow established procedure results
and lasting, it would also be permanently changing and in the evil precisely sought to be averted by observance of the procedure and a
adjusting to the physiologic changes which her body would nexus is made between the deviation and the injury or damage, the physician
normally undergo through the years. The replacements, would necessarily be called to account for it. In the case at bar, the failure to
changes, and adjustments will require corresponding adjustive observe pre-operative assessment protocol which would have influenced the
physical and occupational therapy. All of these adjustments, it intubation in a salutary way was fatal to private respondents' case.
has been documented, are painful.
WHEREFORE, the decision and resolution of the appellate court appealed from are
xxx xxx xxx hereby modified so as to award in favor of petitioners, and solidarily against
A prosthetic devise, however technologically advanced, will only private respondents the following: 1) P1,352,000.00 as actual damages computed
allow a reasonable amount of functional restoration of the as of the date of promulgation of this decision plus a monthly payment of
motor functions of the lower limb. The sensory functions are P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
forever lost. The resultant anxiety, sleeplessness, psychological survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate
injury, mental and physical pain are inestimable. 83 damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5)
The injury suffered by Erlinda as a consequence of private respondents' the costs of the suit.
negligence is certainly much more serious than the amputation in the Valenzuela SO ORDERED.
case. Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
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 Footnotes
so far been heroically shouldered by her husband and children, who, in the 1 In the United States alone, a great number of people die every year as
intervening years have been deprived of the love of a wife and a mother. a result of medical mishaps. The 13 December 1999 issue of TIME
Meanwhile, the actual physical, emotional and financial cost of the care of MAGAZINE featured an article on medical negligence entitled "Doctors'
petitioner would be virtually impossible to quantify. Even the temperate damages Deadly Mistakes" which is quoted in part: "It is hardly news that medical
herein awarded would be inadequate if petitioner's condition remains unchanged professionals make mistakes — even dumb, deadly mistakes. What is
for the next ten years. shocking is how often it happens. Depending on which statistics you
believe, the number of American killed by medical screw-ups is
We recognized, in Valenzuela that a discussion of the victim's actual injury would somewhere between 44,000 and 98,000 every year — the eighth leading
not even scratch the surface of the resulting moral damage because it would be cause of death even by the more conservative figure, ahead of car
highly speculative to estimate the amount of emotional and moral pain, crashes, breast cancer and AIDS. More astonishing than the huge numbers
psychological damage and injury suffered by the victim or those actually affected themselves, though, is the fact that public health officials had known
by the victim's condition. 84The husband and the children, all petitioners in this about the problem for years and hadn't made a concerted effort to do
case, will have to live with the day to day uncertainty of the patient's illness, something about it."
knowing any hope of recovery is close to nil. They have fashioned their daily lives 2 Cholecystectomy is the surgical excision of the gall bladder.
around the nursing care of petitioner, altering their long term goals to take into 3 CA Rollo, pp. 129-140.
account their life with a comatose patient. They, not the respondents, are 4 Records, pp. 270-279.
charged with the moral responsibility of the care of the victim. The family's moral 5 Id. at 270-275.
injury and suffering in this case is clearly a real one. For the foregoing reasons, an 6 Docketed as Civil Case No. Q-46885.
award of P2,000,000.00 in moral damages would be appropriate. 7 Records, pp. 276-278.
8 CA Rollo, p. 166. vocal cords. The anesthetist will then thread the endotracheal tube
9 Id. at 145. between the patient's vocal cords into the trachea, and then hook the
10 Id. at 195. tube to the breathing bag and anesthetic machine.
11 Rollo, p. 19. 46 TSN, January 13, 1988, pp. 16-20.
12 Id. at 91-98. 47 CA Rollo, pp. 134-135.
13 57B Am Jur 2d, 493 (1989). 48 Stockham vs. Hall, supra note 29.
14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966). 49 61 Am Jur 2d, 513 (1989).
15 57B Am Jur 2d, supra note 13 at 499. 50 TSN, January 13, 1988, p. 3.
16 Ibid. 51 TSN, November 15, 1990, p. 11.
17 Id. at 502. 52 TSN, October 9, 1990, p. 13.
19 Id. 54 Ibid.
20 Id. at 503. 55 Id. at 105 (Emphasis supplied).
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas 56 id. at 106.
System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and 57 Id.
Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 58 TSN, November 15, 1990, p. 6.
P.2d 647. 59 Constriction of the air passages of the lung by spasmodic contraction
22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, of the bronchial muscles (as in asthma).
166 (1967). 60 Permanent damage to the brain caused by inadequate oxygenation.
23 57B Am Jur 2d, supra note 13, at 513. 61 TSN, February 28, 1991, pp. 10-11.
24 It is the type of claim which a victim has available to him or her to 62 Rule 130, RULES OF COURT.
redress a wrong committed by a medical professional which has caused 63 61 Am Jur 2d, supra note 49, 516.
bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 788 [1997]). 64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
25 Voss vs. Bridwell, supra note 21. 65 Ibid.
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978). 66 It is a bluish coloration of the skin or mucous membranes caused by
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988). lack of oxygen or abnormal hemoglobin in the blood.
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 67 TSN, March 27, 1990, p. 22.
127 Kan. 573, 274 P.237. 68 Records, p. 274.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
Kan. 802, 149 P. 422, 423. 70 Ibid.
30 SOLIS, supra note 27, at 239. 71 Id. The book provides a thorough discussion on the management of
31 Voss vs. Bridwell, supra note 21 at 970-971. difficult intubations.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935). 72 Id.
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938). 73 Under this doctrine, the surgeon is likened to a ship captain who must
34 Griffin vs. Norman, 192 NYS 322 (1922). not only be responsible for the safety of the crew but also of the
35 Brown vs. Shortilledge, 277 P. 134 (1929). passengers of the vessel. The head surgeon is made responsible for
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937). everything that goes wrong within the four corners of the operating
37 Voss vs. Bridwell, supra note 21, at 969. room. It enunciates the liability of the surgeon not only for the wrongful
38 Id. at 968. acts of those who are under his physical control but also those wherein
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959). he has extension of control.
40 Voss vs. Bridwell, supra note 21, at 968. 74 The term "consultant" is loosely used by hospitals to distinguish their
41 Sanders vs. Smith, 27 So.2d 889, 893 (1946). attending and visiting physicians from the residents, who are also
42 Ibid. physicians. In most hospitals abroad, the term visiting or attending
43 Voss vs. Bridwell, supra note 21. physician, not consultant, is used.
44 Id. at 971. 75 These requirements are in fact found in the standard application
45 It is the method of intubating a patient through the oral cavity. Under forms for visiting and attending physicians of respondent hospital.
this procedure, after the patient has been preoxygenated and paralyzed 76 The hospital's control over respondent physicians is all the more
and is no longer breathing on his own, the anesthetist inserts an significant when one considers the fact that it controls everything which
instrument called a laryngoscope into the patient's oral pharynx. The occurs in an operating room, through its nursing supervisors and charge
patient's neck is hyperextended, that is, bent back as far as possible so nurses. No operations can be undertaken without the hospital's direct or
that the anesthetist can see or "visualize" the patient's epiglottis and indirect consent.
78 Art. 2180 of the Civil Code provides:
79 Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done.
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for another ten years,
the amount awarded in the form of temperate damages would in fact, be
82 253 SCRA 303 (1996).
83 Id. at 327-328.
84 Id. at 328.
THIRD DIVISION Batiquin. On September 28, 1988 Mrs. Villegas checked out of the
G.R. No. 118231 July 5, 1996 Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's
secretary, the amount of P1,500.00 as "professional fee". . . .
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
vs. pains and complained of being feverish. She also gradually lost her
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
VILLEGAS, respondents. 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.
Throughout history, patients have consigned their fates and lives to the skill of Batiquin on October 31, 1988. . . certifying to her physical fitness to
their doctors. For a breach of this trust, men have been quick to demand return to her work on November 7, 1988. So, on the second week of
retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already November, 1988 Mrs. Villegas returned to her work at the Rural Bank of
provided: "If a physician make a deep incision upon a man with his bronze lancet Ayungon, Negros Oriental.
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, The abdominal pains and fever kept on recurring and bothered Mrs.
Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow Villegas no end despite the medications administered by Dr. Batiquin.
that method of treatment which according to my ability and judgment, I consider When the pains became unbearable and she was rapidly losing weight she
for the benefit of my patients, and abstain from whatever is deleterious and consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete
mischievous. . . . While I continue to keep this oath unviolated may it be granted City on January 20, 1989.
me to enjoy life and practice the art, respected by all men at all times but should The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined
I trespass and violate this oath, may the reverse be my lot." At present, the Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found
primary objective of the medical profession if the preservation of life and Mrs. Villegas to be feverish, pale and was breathing fast. Upon
maintenance of the health of the people. 4 examination she felt an abdominal mass one finger below the umbilicus
Needless to say then, when a physician strays from his sacred duty and endangers which she suspected to be either a tumor of the uterus or an ovarian
instead the life of his patient, he must be made to answer therefor. Although cyst, either of which could be cancerous. She had an x-ray taken of Mrs.
society today cannot and will not tolerate the punishment meted out by the Villegas' chest, abdomen and kidney. She also took blood tests of
ancients, neither will it and this Court, as this case would show, let the act go Plaintiff. A blood count showed that Mrs. Villegas had [an] infection
uncondemned. inside her abdominal cavity. The results of all those examinations
impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery
The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 to which the latter agreed.
in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of
Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-
9492. 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
The facts, as found by the trial court, are as follows: of rubber material on the right side of the uterus embedded on [sic] the
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material
Hospital, Dumaguete City from January 9, 1978 to September 1989. which Dr. Kho described as a "foreign body" looked like a piece of a
Between 1987 and September, 1989 she was also the Actg. Head of the "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could
Department of Obstetrics and Gynecology at the said Hospital. have been a torn section of a surgeon's gloves or could have come from
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for other sources. And this foreign body was the cause of the infection of the
prenatal care as the latter's private patient sometime before September ovaries and consequently of all the discomfort suffered by Mrs. Villegas
21, 1988. after her delivery on September 21, 1988. 7

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of The piece of rubber allegedly found near private respondent Flotilde Villegas's
Dr. Doris Teresita Sy who was also a Resident Physician at the same uterus was not presented in court, and although Dr. Ma. Salud Kho Testified that
Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in
performed a simple caesarean section on Mrs. Villegas at the Negros the pathologist's Surgical Pathology Report. 9
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
her first child, Rachel Acogido, at about 11:45 that morning. Thereafter, rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a
Plaintiff remained confined at the Hospital until September 27, 1988 Nurse's Record, 13 and a Physician's Discharge Summary. 14The trial court, however,
during which period of confinement she was regularly visited by Dr. 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 For the miseries appellants endured for more than three (3)
on the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), months, due to the negligence of appellee Dr. Batiquin they are
all the above documents were allegedly prepared by persons other than Dr. Kho, entitled to moral damages in the amount of P100,000.00;
and she merely affixed her signature on some of them to express her agreement exemplary damages in the amount of P20,000.00 and attorney's
thereto. . . ." 15The trial court also refused to give weight to Dr. Kho's testimony fees in the amount of P25,000.00.
regarding the subject piece of rubber as Dr. Kho "may not have had first-hand The fact that appellant Flotilde can no longer bear children
knowledge" thereof, 16 as could be gleaned from her statement, thus: because her uterus and ovaries were removed by Dr. Kho is not
A . . . I have heard somebody that [sic] says [sic] there is [sic] a taken into consideration as it is not shown that the removal of
foreign body that goes with the tissues but unluckily I don't said organs were the direct result of the rubber left by appellee
know where the rubber was. 17 Dr. Batiquin near the uterus. What is established is that the
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she rubber left by appellee caused infection, placed the life of
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there appellant Flotilde in jeopardy and caused appellant fear, worry
was rubber indeed but that she threw it away." 18 This statement, the trial court and anxiety. . . .
noted, was never denied nor disputed by Dr. Kho, leading it to conclude: WHEREFORE, the appealed judgment, dismissing the complaint
There are now two different versions on the whereabouts of for damages is REVERSED and SET ASIDE. Another judgment is
that offending "rubber" — (1) that it was sent to the Pathologist hereby entered ordering defendants-appellees to pay plaintiffs-
in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho appellants the amounts of P17,000.00 as and for actual
threw it away as told by her to Defendant. The failure of the damages; P100,000.00 as and for moral damages; P20,000.00 as
Plaintiffs to reconcile these two different versions serve only to and for exemplary damages; and P25,000.00 as and for
weaken their claim against Defendant Batiquin. 19 attorney's fees plus the costs of litigation.

All told, the trial court held in favor of the petitioners herein. SO ORDERED. 21

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even From the above judgment, the petitioners appealed to this Court claiming that
without admitting the private respondents' documentary evidence, deemed Dr. the appellate court: (1) committed grave abuse of discretion by resorting to
Kho's positive testimony to definitely establish that a piece of rubber was found findings of fact not supported by the evidence on record, and (2) exceeded its
near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the discretion, amounting to lack or excess of jurisdiction, when it gave credence to
decision of the trial court, holding: testimonies punctured with contradictions and falsities.

4. The fault or negligence of appellee Dr. Batiquin is established The private respondents commented that the petition raised only questions of
by preponderance of evidence. The trial court itself had fact, which were not proper for review by this Court.
narrated what happened to appellant Flotilde after the While the rule is that only questions of law may be raised in a petition for review
caesarean operation made by appellee doctor. . . . After the on certiorari, there are exceptions, among which are when the factual findings of
second operation, appellant Flotilde became well and healthy. the trial court and the appellate court conflict, when the appealed decision is
Appellant Flotilde's troubles were caused by the infection due to clearly contradicted by the evidence on record, or when the appellate court
the "rubber" that was left inside her abdomen. Both appellant; misapprehended the facts.22
testified that after the operation made by appellee doctor, they After deciphering the cryptic petition, we find that the focal point of the instant
did not go to any other doctor until they finally decided to see appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that
another doctor in January, 1989 when she was not getting any the Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
better under the care of appellee Dr. Batiquin. . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided Q What is the purpose of the examination?
when to close the operating area; that she examined the portion A Just in case, I was just thinking at the back of my mind, just
she operated on before closing the same. . . Had she exercised in case this would turn out to be a medico-legal
due diligence, appellee Dr. Batiquin would have found the case, I have heard somebody that [sic] says [sic] there is [sic] a
rubber and removed it before closing the operating area. 20 foreign bodythat goes with the tissues but unluckily I don't kno
The appellate court then ruled: w where the rubber was. It was not in the Lab, it was not in
Cebu. 23 (emphasis supplied)
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 The petitioners prefer the trial court's interpretation of the above
medical expenses together with doctor's fees in the total testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was
amount P9,900.00 (Exhs. G and G-2)] for the second operation based on hearsay. The Court of Appeals, on the other hand, concluded
that saved her life. 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 stronger than negative testimony. 33 Of course, as the petitioners advocate, such
considered the other portions of Dr. Kho's testimony, especially the positive testimony must come from a credible source, which leads us to the
following: second assigned error.
Q So you did actually conduct the operation on her? While the petitioners claim that contradictions and falsities punctured Dr. Kho's
A Yes, I did. 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
Q And what was the result? on the witness stand. Furthermore, no motive to state any untruth was ever
A Opening up her abdomen, there was whitish-yellow discharge imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial
inside the abdomen, there was an ovarian cyst on the left and court's following declaration shows that while it was critical of the lack of care
side and there was also an ovarian cyst on the right which, on with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr.
opening up or freeing it up from the uterus, turned out to be Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:
pus. Both ovaries turned out. . . to have pus. And then, cleaning This is not to say that she was less than honest when she
up the uterus, at the back of the uterus it was very dirty, it was testified about her findings, but it can also be said that she did
full of pus. And there was a [piece of] rubber, we found a [piece not take the most appropriate precaution to preserve that
of] rubber on the right "piece of rubber" as an eloquent evidence of what she would
side. 24 reveal should there be a "legal problem" which she claim[s] to
We agree with the Court of Appeals. The phrase relied upon by the trial court have anticipated. 35
does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Considering that we have assessed Dr. Kho to be a credible witness, her positive
Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for testimony [that a piece of rubber was indeed found in private respondent Villega's
examination by a pathologist. 25 Not even the Pathologist's Report, although abdomen] prevails over the negative testimony in favor of the petitioners.
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 As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion
other than first-hand knowledge for, as she asserted before the trial court: to delve into the nature and operation of this doctrine:

Q But you are sure you have seen [the piece of rubber]? This doctrine [res ipsa loquitur] is stated thus: "Where the thing
which causes injury is shown to be under the management of
A Oh yes. I was not the only one who saw it. the defendant, and the accident is such as in the ordinary
The petitioners emphasize that the private respondents never reconciled Dr. Kho's course of things does not happen in those who have the
testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin management use proper care, it affords reasonable evidence, in
confronted Dr. Kho about the foreign body, the latter said that there was a piece the absence of an explanation by the defendant, that the
of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was accident arose from want of care." Or
not objected to, and hence, the same is admissible 27 but it carries no probative as Black's Law Dictionary puts it:
value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie Res ipsa loquitur. The thing speaks for itself.
the fact that Dr. Kho found a piece of rubber near private respondent Villegas's Rebuctable presumption or inference that defendant
uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of was negligent, which arises upon proof that [the]
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not instrumentality causing injury was in defendant's
justified in distrusting her as to her recovery of a piece of rubber from private exclusive control, and that the accident was one which
respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe ordinary does not happen in absence of negligence. Res
the testimony of a witness with respect to some facts and disbelieve his testimony ipsa loquitur is [a] rule of evidence whereby negligence
with respect to other facts. And it has been aptly said that even when a witness is of [the] alleged wrongdoer may be inferred from [the]
found to have deliberately falsified in some material particulars, it is not required mere fact that [the] accident happened provided [the]
that the whole of his uncorroborated testimony be rejected, but such portions character of [the] accident and circumstances
thereof deemed worthy of belief may be credited. 29 attending it lead reasonably to belief that in [the]
It is here worth noting that the trial court paid heed to the following portions of absence of negligence it would not have occurred and
Dr. Batiquin's testimony: that no rubber drain was used in the operation, 30 and that thing which caused injury is shown to have been
that there was neither any tear on Dr. Batiquin's gloves after the operation nor under [the] management and control of [the] alleged
blood smears on her hands upon removing her gloves. 31 Moreover, the trial court wrongdoer. . . . Under [this] doctrine
pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, . . . the happening of an injury permits an inference of
Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But negligence where plaintiff produces substantial
the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were evidence that [the] injury was caused by an agency or
denials or negative testimonies. Well-settled is the rule that positive testimony is instrumentality under [the] exclusive control and
management of defendant, and that the occurrence SO ORDERED.
[sic] was such that in the ordinary course of things Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
would not happen if reasonable care had been used.
xxx xxx xxx Footnotes
The doctrine of [r]es ipsa loquitur as a rule of evidence 1 Implemented in Babylon, ca. 2250 B.C.
is peculiar to the law of negligence which recognizes 2 See L.J. REGAN, DOCTOR AND PATIENT AND THE LAW, 2d. ed. [1949],
that prima facie negligence may be established without 34.
direct proof and furnishes a substitute for specific 3 460-377 B.C.
proof of negligence. The doctrine is not a rule of 4 P. SOLIS, MEDICAL JURISPRUDENCE [1988 ed.], 5.
substantive law, but merely a mode of proof or a mere 5 Appendix "A" of Petition; Rollo, 12-22. Per Austria-Martinez, M.A., J.,
procedural convenience. The rule, when applicable to with Marigomen, A., and Reyes, R.JJ., concurring.
the facts and circumstances of a particular case, is not 6 Original Records (OR), 260-272. Per Judge Enrique C. Garrovillo.
intended to and does not dispense with the 7 OR, 261-264.
requirement of proof of culpable negligence on the 8 TSN, 12 July 1990, 49.
party charged. It merely determines and regulates 9 Id., 50-51.
what shall be prima facie evidence thereof and 10 OR, 132.
facilitates the burden of plaintiff of proving a breach of 11 Id., 135-137.
the duty of due care. The doctrine can be invoked 12 Id., 138.
when and only when, under the circumstances 13 Id., 139-140.
involved, direct evidence is absent and not readily 14 Id., 141.
available. 36 15 Id., 268.
16 Id., 266.
In the instant case, all the requisites for recourse to the doctrine are present. 17 TSN, 12 July 1990, 49.
First, the entire proceedings of the caesarean section were under the exclusive 18 OR, 269.
control of Dr. Batiquin. In this light, the private respondents were bereft of direct 19 Id.
evidence as to the actual culprit or the exact cause of the foreign object finding 20 Rollo, 20.
its way into private respondent Villegas's body, which, needless to say, does not 21 Id., 21.
occur unless through the intersection of negligence. Second, since aside from the 22 Remalante vs. Tibe, 158 SCRA 138, 145 [1988]; Medina vs. Asistio, 191
caesarean section, private respondent Villegas underwent no other operation SCRA 218, 223-224 [1990]; Borillo vs. Court of Appeals, 209 SCRA 130,
which could have caused the offending piece of rubber to appear in her uterus, it 140-141 [1992]; Director of Lands vs. Intermediate Appellate Court, 209
stands to reason that such could only have been a by-product of the caesarean SCRA 214, 221 [1992]; Margolles vs. Court of Appeals, 230 SCRA 97, 106
section performed by Dr. Batiquin. The petitioners, in this regard, failed to [1994].
overcome the presumption of negligence arising from resort to the doctrine of res 23 TSN, 12 July 1990, 49.
ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a 24 TSN, 12 July 1990, 9.
piece of rubber in private respondent Villegas's abdomen and for all the adverse 25 Id., 10-49.
effects thereof. 26 TSN, 12 July 1990, 10.
As a final word, this Court reiterates its recognition of the vital role the medical 27 RICARDO J. FRANCISCO, Evidence, 255 [1993].
profession plays in the lives of the people, 37 and the State's compelling interest 28 People vs. Laurente, G.R. No. 116734, 29 March 1996, at 24, citations
to enact measures to protect the public from "the potentially deadly effects of omitted.
incompetence and ignorance in those who would undertake to treat our bodies 29 People vs. Ducay, 225 SCRA 1, 14 [1993]; People vs. Cañeja, 235 SCRA
and minds for disease or trauma." 38 Indeed, a physician is bound to serve the 328, 337 [1994].
interest of his patients "with the greatest of solicitude, giving them always his 30 TSN, 31 August 1990, 20.
best talent and skill." 39 Through her tortious conduct, the petitioner endangered 31 Id., 21.
the life of Flotilde Villegas, in violation of her profession's rigid ethical code and 32 TSN, 10 September 1990, 5.
in contravention of the legal standards set forth for professionals, in 33 People vs. Antonio, 233 SCRA 283, 299 [1994].
general, 40 and members of the medical profession, 41 in particular. 34 See People vs. De Leon, 245 SCRA 538, 545 [1995]; People vs.
Malunes, 247 SCRA 317, 326-327 [1995].
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in
35 OR, 267.
CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
36 Layugan vs. Intermediate Appellate Court, 167 SCRA 363, 376-377
Costs against the petitioners. [1988]. See discussions in Martinez vs. Van Buskirk, 18 Phil. 79, 85-86
[1910]; Africa vs. Caltex (Phil.) Inc., 16 SCRA 448, 454-456 [1966]; F.F.
Cruz and Co., Inc. vs. Court of Appeals, 164 SCRA 731, 736 [1988].
37 Department of Education, Culture, and Sports vs. San Diego, 180 SCRA
533, 538 [1989].
38 Tablarin vs. Gutierrez, 152 SCRA 730, 743, [1987].
39 Section 3, Article 1, 1960 Code of Ethics of the Medical Profession in
the Philippines, as cited in Carillo vs. People, 229 SCRA 386, 396 [1994].
40 Culion Ice, Fish & Elec. Co. vs. Phil. Motors Corporation, 55 Phil. 129-
133 [1930].
41 Stevenson vs. Yates, 208 SW 820 [1919]; Kennedy vs. Parrott, 90 SE 2d
754 [1956]; DeLaughter vs. Womack, 164 So 2d 762 [1994]; Hill vs.
Stewart, 209 So 2d 809 [1968].
FIRST DIVISION 5. P20,000.00 as attorney’s fees, plus the costs of suit.
G.R. No. 137873 April 20, 2001 SO ORDERED.2
D. M. CONSUNJI, INC., petitioner, On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of
vs. the RTC in toto.
COURT OF APPEALS and MARIA J. JUEGO, respondents. D. M. Consunji now seeks the reversal of the CA decision on the following grounds:


At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. NEGLIGENCE OF PETITIONER.
M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his
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, • THE APPELLATE COURT ERRED IN HOLDING THAT
Metro Manila where he was pronounced dead on arrival (DOA) by the PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF
attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same THE CIVIL CODE, AND
Investigation disclosed that at the given time, date and place, while RESPONDENT IS NOT PRECLUDED FROM RECOVERING DAMAGES
victim Jose A. Juego together with Jessie Jaluag and Delso Destajo UNDER THE CIVIL CODE.3
[were] performing their work as carpenter[s] at the elevator core of the Petitioner maintains that the police report reproduced above is hearsay and,
14th floor of the Tower D, Renaissance Tower Building on board a therefore, inadmissible. The CA ruled otherwise. It held that said report, being an
[p]latform made of channel beam (steel) measuring 4.8 meters by 2 entry in official records, is an exception to the hearsay rule.
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 The Rules of Court provide that a witness can testify only to those facts which he
bolt or pin which was merely inserted to connect the chain block with knows of his personal knowledge, that is, which are derived from his
the [p]latform, got loose xxx causing the whole [p]latform assembly and perception.4 A witness, therefore, may not testify as what he merely learned from
the victim to fall down to the basement of the elevator core, Tower D of others either because he was told or read or heard the same. Such testimony is
the building under construction thereby crushing the victim of death, considered hearsay and may not be received as proof of the truth of what he has
save his two (2) companions who luckily jumped out for safety. learned.5 This is known as the hearsay rule.

It is thus manifest that Jose A. Juego was crushed to death when the Hearsay is not limited to oral testimony or statements; the general rule that
[p]latform he was then on board and performing work, fell. And the excludes hearsay as evidence applies to written, as well as oral statements.6
falling of the [p]latform was due to the removal or getting loose of the The theory of the hearsay rule is that the many possible deficiencies,
pin which was merely inserted to the connecting points of the chain suppressions, sources of error and untrustworthiness, which lie underneath the
block and [p]latform but without a safety lock.1 bare untested assertion of a witness, may be best brought to light and exposed by
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence
of Pasig a complaint for damages against the deceased’s employer, D.M. Consunji, that cannot be tested by cross-examination.8
Inc. The employer raised, among other defenses, the widow’s prior availment of The Rules of Court allow several exceptions to the rule,9 among which are entries
the benefits from the State Insurance Fund. in official records. Section 44, Rule 130 provides:
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The Entries in official records made in the performance of his duty made in
dispositive portion of the RTC decision reads: the performance of his duty by a public officer of the Philippines, or by a
WHEREFORE, judgment is hereby rendered ordering defendant to pay person in the performance of a duty specially enjoined by law areprima
plaintiff, as follows: facie evidence of the facts therein stated.

1. P50,000.00 for the death of Jose A. Juego. 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
2. P10,000.00 as actual and compensatory damages. rule:
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity. (a) that the entry was made by a public officer or by another person
4. P100,000.00 as moral damages. specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his Were there no exception for official statements, hosts of
duties, or by such other person in the performance of a duty specially officials would be found devoting the greater part of their time
enjoined by law; and to attending as witnesses in court or delivering deposition
(c) that the public officer or other person had sufficient knowledge of before an officer. The work of administration of government
the facts by him stated, which must have been acquired by him and the interest of the public having business with officials
personally or through official information. would alike suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such documents,
The CA held that the police report meets all these requisites. Petitioner contends which is not extended to private documents. (3 Wigmore on
that the last requisite is not present. Evidence, Sec. 1631).
The Court notes that PO3 Villanueva, who signed the report in question, also The law reposes a particular confidence in public officers that it
testified before the trial court. InRodriguez vs. Court of Appeals,11 which involved presumes they will discharge their several trusts with accuracy
a Fire Investigation Report, the officer who signed the fire report also testified and fidelity; and, therefore, whatever acts they do in discharge
before the trial court. This Court held that the report was inadmissible for the of their duty may be given in evidence and shall be taken to be
purpose of proving the truth of the statements contained in the report but true under such a degree of caution as to the nature and
admissible insofar as it constitutes part of the testimony of the officer who circumstances of each case may appear to require.
executed the report.
It would have been an entirely different matter if Major Enriquez was not
x x x. Since Major Enriquez himself took the witness stand and was presented to testify on his report. In that case the applicability of
available for cross-examination, the portions of the report which were of Section 44 of Rule 143 would have been ripe for determination, and this
his personal knowledge or which consisted of his perceptions and Court would have agreed with the Court of Appeals that said report was
conclusions were not hearsay. The rest of the report, such as the inadmissible since the aforementioned third requisite was not satisfied.
summary of the statements of the parties based on their sworn The statements given by the sources of information of Major Enriquez
statements (which were annexed to the Report) as well as the latter, failed to qualify as "official information," there being no showing that, at
having been included in the first purpose of the offer [as part of the the very least, they were under a duty to give the statements for record.
testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the Similarly, the police report in this case is inadmissible for the purpose of proving
investigation and may thus be admitted as such, but not necessarily to the truth of the statements contained therein but is admissible insofar as it
prove the truth thereof. It has been said that: constitutes part of the testimony of PO3 Villanueva.

"Where regardless of the truth or falsity of a statement, the fact In any case, the Court holds that portions of PO3 Villanueva’s testimony which
that it has been made is relevant, the hearsay rule does not were of his personal knowledge suffice to prove that Jose Juego indeed died as a
apply, but the statement may be shown. Evidence as to the result of the elevator crash. PO3 Villanueva had seen Juego’s remains at the
making of such statement is not secondary but primary, for the morgue,12 making the latter’s death beyond dispute. PO3 Villanueva also
statement itself may constitute a fact in issue, or be conducted an ocular inspection of the premises of the building the day after the
circumstantially relevant as to the existence of such a fact." 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
When Major Enriquez took the witness stand, testified for petitioners on and Fabro to bring the chain block to the police headquarters. Upon inspection,
his Report and made himself available for cross-examination by the he noticed that the chain was detached from the lifting machine, without any pin
adverse party, the Report, insofar as it proved that certain utterances or bolt.17
were made (but not their truth), was effectively removed from the ambit
of the aforementioned Section 44 of Rule 130. Properly understood, this What petitioner takes particular exception to is PO3 Villanueva’s testimony that
section does away with the testimony in open court of the officer who the cause of the fall of the platform was the loosening of the bolt from the chain
made the official record, considers the matter as an exception to the block. It is claimed that such portion of the testimony is mere opinion. Subject to
hearsay rule and makes the entries in said official record admissible in certain exceptions,18 the opinion of a witness is generally not admissible.19
evidence as prima facie evidence of the facts therein stated. The Petitioner’s contention, however, loses relevance in the face of the application
underlying reasons for this exceptionary rule are necessity and of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a
trustworthiness, as explained in Antillon v. Barcelon. presumption or inference that the mere fall of the elevator was a result of the
The litigation is unlimited in which testimony by officials is daily person having charge of the instrumentality was negligent. As a rule of evidence,
needed; the occasions in which the officials would be summoned the doctrine of res ipsa loquituris peculiar to the law of negligence which
from his ordinary duties to declare as a witness are numberless. recognizes that prima facie negligence may be established without direct proof
The public officers are few in whose daily work something is not and furnishes a substitute for specific proof of negligence.20
done in which testimony is not needed from official sources. The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the construction project, resulting to his death. The construction site is
mere happening of an accident or injury will not generally give rise to an within the exclusive control and management of appellant. It has a
inference or presumption that it was due to negligence on defendant’s safety engineer, a project superintendent, a carpenter leadman and
part, under the doctrine of res ipsa loquitur, which means, literally, the others who are in complete control of the situation therein. The
thing or transaction speaks for itself, or in one jurisdiction, that the circumstances of any accident that would occur therein are peculiarly
thing or instrumentality speaks for itself, the facts or circumstances within the knowledge of the appellant or its employees. On the other
accompanying an injury may be such as to raise a presumption, or at hand, the appellee is not in a position to know what caused the
least permit an inference of negligence on the part of the defendant, or accident. Res ipsa loquitur is a rule of necessity and it applies where
some other person who is charged with negligence. evidence is absent or not readily available, provided the following
x x x where it is shown that the thing or instrumentality which caused requisites are present: (1) the accident was of a kind which does not
the injury complained of was under the control or management of the ordinarily occur unless someone is negligent; (2) the instrumentality or
defendant, and that the occurrence resulting in the injury was such as in agency which caused the injury was under the exclusive control of the
the ordinary course of things would not happen if those who had its person charged with negligence; and (3) the injury suffered must not
control or management used proper care, there is sufficient evidence, have been due to any voluntary action or contribution on the part of the
or, as sometimes stated, reasonable evidence, in the absence of person injured. x x x.
explanation by the defendant, that the injury arose from or was caused No worker is going to fall from the 14 th floor of a building to the
by the defendant’s want of care.21 basement while performing work in a construction site unless someone is
One of the theoretical based for the doctrine is its necessity, i.e., that necessary negligent[;] thus, the first requisite for the application of the rule of res
evidence is absent or not available.22 ipsa loquitur is present. As explained earlier, the construction site with
all its paraphernalia and human resources that likely caused the injury is
The res ipsa loquitur doctrine is based in part upon the theory that the under the exclusive control and management of appellant[;] thus[,] the
defendant in charge of the instrumentality which causes the injury either second requisite is also present. No contributory negligence was
knows the cause of the accident or has the best opportunity of attributed to the appellee’s deceased husband[;] thus[,] the last
ascertaining it and that the plaintiff has no such knowledge, and requisite is also present. All the requisites for the application of the rule
therefore is compelled to allege negligence in general terms and to rely of res ipsa loquitur are present, thus a reasonable presumption or
upon the proof of the happening of the accident in order to establish inference of appellant’s negligence arises. x x x.24
negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or Petitioner does not dispute the existence of the requisites for the application
innocent, is practically accessible to the defendant but inaccessible to of res ipsa loquitur, but argues that the presumption or inference that it was
the injured person. negligent did not arise since it "proved that it exercised due care to avoid the
accident which befell respondent’s husband."
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 Petitioner apparently misapprehends the procedural effect of the doctrine. As
defendant who knows or should know the cause, for any explanation of stated earlier, the defendant’s negligence is presumed or inferred 25 when the
care exercised by the defendant in respect of the matter of which the plaintiff establishes the requisites for the application of res ipsa loquitur. Once
plaintiff complains. The res ipsa loquitur doctrine, another court has the plaintiff makes out a prima facie case of all the elements, the burden then
said, is a rule of necessity, in that it proceeds on the theory that under shifts to defendant to explain.26 The presumption or inference may be rebutted or
the peculiar circumstances in which the doctrine is applicable, it is overcome by other evidence and, under appropriate circumstances disputable
within the power of the defendant to show that there was no negligence presumption, such as that of due care or innocence, may outweigh the
on his part, and direct proof of defendant’s negligence is beyond inference.27 It is not for the defendant to explain or prove its defense to prevent
plaintiff’s power. Accordingly, some court add to the three prerequisites the presumption or inference from arising. Evidence by the defendant of say, due
for the application of the res ipsa loquitur doctrine the further care, comes into play only after the circumstances for the application of the
requirement that for the res ipsa loquitur doctrine to apply, it must doctrine has been established.1âwphi1.nêt
appear that the injured party had no knowledge or means of knowledge In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro
as to the cause of the accident, or that the party to be charged with executed before the police investigator as evidence of its due care. According to
negligence has superior knowledge or opportunity for explanation of the Fabro’s sworn statement, the company enacted rules and regulations for the
accident.23 safety and security of its workers. Moreover, the leadman and
The CA held that all the requisites of res ipsa loquitur are present in the case at the bodegero inspect the chain block before allowing its use.
bar: It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due
There is no dispute that appellee’s husband fell down from the 14th floor care but, in arguing that private respondent failed to prove negligence on the
of a building to the basement while he was working with appellant’s part of petitioner’s employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Addressing the issue of whether the heirs had a choice of remedies, majority of
Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant the Court En Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held
is placed on the witness stand to testify thereon.28 The inadmissibility of this sort in the affirmative.
of evidence is based not only on the lack of opportunity on the part of the adverse WE now come to the query as to whether or not the injured employee or
party to cross-examine the affiant, but also on the commonly known fact that, his heirs in case of death have a right of selection or choice of action
generally, an affidavit is not prepared by the affiant himself but by another who between availing themselves of the worker’s right under the Workmen’s
uses his own language in writing the affiant’s statements which may either be Compensation Act and suing in the regular courts under the Civil Code for
omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot higher damages (actual, moral and exemplary) from the employers by
use said statement as proof of its due care any more than private respondent can virtue of the negligence or fault of the employers or whether they may
use it to prove the cause of her husband’s death. Regrettably, petitioner does not avail themselves cumulatively of both actions, i.e., collect the limited
cite any other evidence to rebut the inference or presumption of negligence compensation under the Workmen’s Compensation Act and sue in
arising from the application of res ipsa loquitur, or to establish any defense addition for damages in the regular courts.
relating to the incident.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus
Next, petitioner argues that private respondent had previously availed of the Company, 32 SCRA 442, ruled thatan injured worker has a choice of
death benefits provided under the Labor Code and is, therefore, precluded from either to recover from the employer the fixed amounts set by the
claiming from the deceased’s employer damages under the Civil Code. Workmen’s Compensation Act or to prosecute an ordinary civil action
Article 173 of the Labor Code states: against the tortfeasor for higher damages but he cannot pursue both
Article 173. Extent of liability. – Unless otherwise provided, the liability courses of action simultaneously. [Underscoring supplied.]
of the State Insurance Fund under this Title shall be exclusive and in Nevertheless, the Court allowed some of the petitioners in said case to proceed
place of all other liabilities of the employer to the employee, his with their suit under the Civil Code despite having availed of the benefits
dependents or anyone otherwise entitled to receive damages on behalf provided under the Workmen’s Compensation Act. The Court reasoned:
of the employee or his dependents. The payment of compensation under With regard to the other petitioners, it was alleged by Philex in its
this Title shall not bar the recovery of benefits as provided for in Section motion to dismiss dated May 14, 1968 before the court a quo, that the
699 of the Revised Administrative Code, Republic Act Numbered Eleven heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims
as amended, Republic Act Numbered Forty-eight hundred sixty-four as for compensation to the Regional Office No. 1 of the then Department of
amended, and other laws whose benefits are administered by the System Labor and all of them have been paid in full as of August 25, 1967,
or by other agencies of the government. except Saturnino Martinez whose heirs decided that they be paid in
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s installments x x x. Such allegation was admitted by herein petitioners in
Compensation Act, provided that: their opposition to the motion to dismiss dated may 27, 1968 x x x in the
Section 5. Exclusive right to compensation. – The rights and remedies lower court, but they set up the defense that the claims were filed under
granted by this Act to an employee by reason of a personal injury the Workmen’s Compensation Act before they learned of the official
entitling him to compensation shall exclude all other rights and remedies report of the committee created to investigate the accident which
accruing to the employee, his personal representatives, dependents or established the criminal negligence and violation of law by Philex, and
nearest of kin against the employer under the Civil Code and other laws which report was forwarded by the Director of Mines to then Executive
because of said injury x x x. Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under WE hold that although the other petitioners had received the benefits
said Act as well as under the Civil Code used to be the subject of conflicting under the Workmen’s Compensation Act, such my not preclude them
decisions. The Court finally settled the matter in Floresca vs.Philex Mining from bringing an action before the regular court because they became
Corporation,30 which involved a cave-in resulting in the death of the employees of cognizant of the fact that Philex has been remiss in its contractual
the Philex Mining Corporation. Alleging that the mining corporation, in violation of obligations with the deceased miners only after receiving compensation
government rules and regulations, failed to take the required precautions for the under the Act. Had petitioners been aware of said violation of
protection of the employees, the heirs of the deceased employees filed a government rules and regulations by Philex, and of its negligence, they
complaint against Philex Mining in the Court of First Instance (CFI). Upon motion would not have sought redress under the Workmen’s Compensation
of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The Commission which awarded a lesser amount for compensation. The
heirs sought relief from this Court. 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 for death benefits under ECC or before she received the first payment
Compensation Act should be deducted from the damages that may be therefrom. Her using the police investigation report to support her
decreed in their favor. [Underscoring supplied.] complaint filed on May 9, 1991 may just be an afterthought after
The ruling in Floresca providing the claimant a choice of remedies was reiterated receiving a copy of the February 6, 1991 Memorandum of the
in Ysmael Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano- Prosecutor’s Office dismissing the criminal complaint for insufficiency of
Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the Court again evidence, stating therein that: "The death of the victim is not
recognized that a claimant who had been paid under the Act could still sue under attributable to any negligence on the part of the respondents. If at all
the Civil Code. The Court said: and as shown by the records this case is civil in nature." (Underscoring
supplied.) Considering the foregoing, We are more inclined to believe
In the Robles case, it was held that claims for damages sustained by appellee’s allegation that she learned about appellant’s negligence only
workers in the course of their employment could be filed only under the after she applied for and received the benefits under ECC. This is a
Workmen’s Compensation Law, to the exclusion of all further claims mistake of fact that will make this case fall under the exception held in
under other laws. In Floresca, this doctrine was abrogated in favor of the the Floresca ruling.35
new rule that the claimants may invoke either the Workmen’s
Compensation Act or the provisions of the Civil Code, subject to the The CA further held that not only was private respondent ignorant of the facts,
consequence that the choice of one remedy will exclude the other and but of her rights as well:
that the acceptance of compensation under the remedy chosen will x x x. Appellee [Maria Juego] testified that she has reached only
preclude a claim for additional benefits under the other remedy. The elementary school for her educational attainment; that she did not know
exception is where a claimant who has already been paid under the what damages could be recovered from the death of her husband; and
Workmen’s Compensation Act may still sue for damages under the Civil that she did not know that she may also recover more from the Civil
Code on the basis of supervening facts or developments occurring after Code than from the ECC. x x x.36
he opted for the first remedy. (Underscoring supplied.) Petitioner impugns the foregoing rulings. It contends that private respondent
Here, the CA held that private respondent’s case came under the exception "failed to allege in her complaint that her application and receipt of benefits from
because private respondent was unaware of petitioner’s negligence when she the ECC were attended by ignorance or mistake of fact. Not being an issue
filed her claim for death benefits from the State Insurance Fund. Private submitted during the trial, the trial court had no authority to hear or adjudicate
respondent filed the civil complaint for damages after she received a copy of the that issue."
police investigation report and the Prosecutor’s Memorandum dismissing the Petitioner also claims that private respondent could not have been ignorant of the
criminal complaint against petitioner’s personnel. While stating that there was no facts because as early as November 28, 1990, private respondent was the
negligence attributable to the respondents in the complaint, the prosecutor complainant in a criminal complaint for "Simple Negligence Resulting to Homicide"
nevertheless noted in the Memorandum that, "if at all," the "case is civil in against petitioner’s employees. On February 6, 1991, two months before the filing
nature." The CA thus applied the exception in Floresca: of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding
x x x We do not agree that appellee has knowledge of the alleged that, although there was insufficient evidence against petitioner’s employees, the
negligence of appellant as early as November 25, 1990, the date of the case was "civil in nature." These purportedly show that prior to her receipt of
police investigator’s report. The appellee merely executed her sworn death benefits from the ECC on January 2, 1991 and every month thereafter,
statement before the police investigator concerning her personal private respondent also knew of the two choices of remedies available to her and
circumstances, her relation to the victim, and her knowledge of the yet she chose to claim and receive the benefits from the ECC.
accident. She did not file the complaint for "Simple Negligence Resulting When a party having knowledge of the facts makes an election between
to Homicide" against appellant’s employees. It was the investigator who inconsistent remedies, the election is final and bars any action, suit, or
recommended the filing of said case and his supervisor referred the same proceeding inconsistent with the elected remedy, in the absence of fraud by the
to the prosecutor’s office. This is a standard operating procedure for other party. The first act of election acts as a bar.37 Equitable in nature, the
police investigators which appellee may not have even known. This may doctrine of election of remedies is designed to mitigate possible unfairness to
explain why no complainant is mentioned in the preliminary statement of both parties. It rests on the moral premise that it is fair to hold people
the public prosecutor in her memorandum dated February 6, 1991, to responsible for their choices. The purpose of the doctrine is not to prevent any
wit: "Respondent Ferdinand Fabro x x x are being charged by recourse to any remedy, but to prevent a double redress for a single wrong.38
complainant of "Simple Negligence Resulting to Homicide." It is also
possible that the appellee did not have a chance to appear before the The choice of a party between inconsistent remedies results in a waiver by
public prosecutor as can be inferred from the following statement in said election. Hence, the rule in Florescathat a claimant cannot simultaneously pursue
memorandum: "Respondents who were notified pursuant to Law waived recovery under the Labor Code and prosecute an ordinary course of action under
their rights to present controverting evidence," thus there was no reason the Civil Code. The claimant, by his choice of one remedy, is deemed to have
for the public prosecutor to summon the appellee. Hence, notice of waived the other.
appellant’s negligence cannot be imputed on appellee before she applied
Waiver is the intentional relinquishment of a known right.39 There is also no showing that private respondent knew of the remedies available
[It] is an act of understanding that presupposes that a party has to her when the claim before the ECC was filed. On the contrary, private
knowledge of its rights, but chooses not to assert them. It must be respondent testified that she was not aware of her rights.
generally shown by the party claiming a waiver that the person against Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the
whom the waiver is asserted had at the time knowledge, actual or law excuses no one from compliance therewith. As judicial decisions applying or
constructive, of the existence of the party’s rights or of all material facts interpreting the laws or the Constitution form part of the Philippine legal system
upon which they depended. Where one lacks knowledge of a right, there (Article 8, Civil Code), private respondent cannot claim ignorance of this Court’s
is no basis upon which waiver of it can rest. Ignorance of a material fact ruling inFloresca allowing a choice of remedies.
negates waiver, and waiver cannot be established by a consent given The argument has no merit. The application of Article 3 is limited to mandatory
under a mistake or misapprehension of fact. and prohibitory laws.42 This may be deduced from the language of the provision,
A person makes a knowing and intelligent waiver when that person knows which, notwithstanding a person’s ignorance, does not excuse his or
that a right exists and has adequate knowledge upon which to make an her compliance with the laws. The rule in Floresca allowing private respondent a
intelligent decision. choice of remedies is neither mandatory nor prohibitory. Accordingly, her
Waiver requires a knowledge of the facts basic to the exercise of the ignorance thereof cannot be held against her.
right waived, with an awareness of its consequences. That a waiver is Finally, the Court modifies the affirmance of the award of damages. The records
made knowingly and intelligently must be illustrated on the record or by do not indicate the total amount private respondent ought to receive from the
the evidence.40 ECC, although it appears from Exhibit "K"43 that she received P3,581.85 as initial
That lack of knowledge of a fact that nullifies the election of a remedy is the payment representing the accrued pension from November 1990 to March 1991.
basis for the exception in Floresca. 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
It is in light of the foregoing principles that we address petitioner’s contentions. eventually receive from the ECC is less than the sum of P644,000.00 in total
Waiver is a defense, and it was not incumbent upon private respondent, as damages awarded by the trial court is subject to speculation, and the case is
plaintiff, to allege in her complaint that she had availed of benefits from the ECC. remanded to the trial court for such determination. Should the trial court find
It is, thus, erroneous for petitioner to burden private respondent with raising that its award is greater than that of the ECC, payments already received by
waiver as an issue. On the contrary, it is the defendant who ought to plead private respondent under the Labor Code shall be deducted from the trial court'’
waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is award of damages. Consistent with our ruling in Floresca, this adjudication aims
waived. It is, therefore, perplexing for petitioner to now contend that the trial to prevent double compensation.
court had no jurisdiction over the issue when petitioner itself pleaded waiver in WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to
the proceedings before the trial court. determine whether the award decreed in its decision is more than that of the
Does the evidence show that private respondent knew of the facts that led to her ECC. Should the award decreed by the trial court be greater than that awarded by
husband’s death and the rights pertaining to a choice of remedies? 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
It bears stressing that what negates waiver is lack of knowledge or a mistake
of Appeals is AFFIRMED.
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 SO ORDERED.
purportedly learned only after the prosecutor issued a resolution stating that Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.
there may be civil liability. InFloresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or Footnote
violation of government rules and regulations, for that matter, however, is not a 1
Exhibit "A," Records, pp. 60-61.
fact, but aconclusion of law, over which only the courts have the final say. Such a 2
Rollo, pp. 79-80.
conclusion binds no one until the courts have decreed so. It appears, therefore, 3
Id., at 19.
that the principle that ignorance or mistake of fact nullifies a waiver has been 4
Sec. 36, Rule 130.
misapplied in Floresca and in the case at bar. 5
People vs. Ramos, 122 SCRA 312 (1983).
In any event, there is no proof that private respondent knew that her husband 31A C.J.S. Evidence § 194. See also Philippine Home Assurance Corp.
died in the elevator crash when on November 15, 1990 she accomplished her vs. Court of Appeals, 257 SCRA 479 (1996).
application for benefits from the ECC. The police investigation report is dated 5 J. H. Wigmore, A Treatise on the Anglo-American System of Evidence
November 25, 1990, 10 days after the accomplishment of the form. Petitioner in Trials at Common Law 3 (3rdEd.).
filed the application in her behalf on November 27, 1990. San Sebastian College vs. Court of Appeals, 197 SCRA 138 (1991).
See Rules of Court, Rule 130, Sections 37-47.
16 SCRA 448 (1966). See also People vs. San Gabriel, 253 SCRA 84
273 SCRA 607 (1997).
TSN, December 20, 1991, p. 9.
Id., at 28; TSN, January 6, 1992, p. 29.
Id., at 29; Ibid.
Id., at 33.
Id., at 34.
Id., at 24 and 28.
Rules of Court, Rule 130, Sections 49-50.
Id., Sec. 48.
Layugan vs. Intermediate Appellate Court, 167 SCRA 363 (1988). See
also Batiquin vs. Court of Appeals, 258 SCRA 334 (1996); Radio
Communications of the Philippines, Inc. vs. Court of Appeals, 143 SCRA
657 (1986).
57B Am Jur 2d, Negligence § 1819.
Id., at 1824.
Id., at 1914.
Rollo, pp. 87-88.
Whether the doctrine raises a presumption or merely an inference is
subject to debate. See 57B Am Jur 2d, Negligence §§ 1925-1928.
Id., at 1920.
Id., at 1947.
People vs. Villeza, 127 SCRA 349 (1984); People vs. Quidato, 297 SCRA
1 (1998).
People vs. Ramos, supra.
136 SCRA 141 (1985).
Justices Aquino, Melencio-Herrera, and Gutierrez dissented.
151 SCRA 333 (1987).
157 SCRA 446 (1988).
164 SCRA 317 (1988).
Rollo, pp. 90-91. Underscoring by the Court of Appeals.
Id., at 90. Underscoring by the Court of Appeals.
Id., at § 5.
Id., at § 2.
Castro vs. Del Rosario, et al., 19 SCRA 196 (1967).
28 Am Jur 2d, Estoppel and Waiver § 202.
Records, pp. 17-18.
I Tolentino, A.M. Commentaries and Jurisprudence on the Civil Code of
the Philippines 19 (1995).
Records, p. 100.
EN BANC regulation. Appellant points out, nevertheless, that even assuming that the
G.R. No. L-8328 May 18, 1956 distance, within the meaning of the city regulations, should be measured from the
edge of the ‘media agua’, the fact that in the case of the house involved herein
MANILA ELECTRIC COMPANY, Petitioner, such distance was actually less than 3 feet was due to the fault of the owner of
vs. said house, because the city authorities gave him a permit to construct a ‘media
SOTERO REMOQUILLO, in his own behalf and as guardian of the minors agua’ only one meter or 39 1/2 inches wide, but instead he built one having a
MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and AURORA, width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the
all surnamed MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second authorities, thereby reducing the distance to the electric wire to less than the
Division), Respondents. prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit
DECISION given to him by the city authorities for the construction of the ‘media agua’, and
that if he had not done soAppellants wire would have been 11 3/8 (inches) more
MONTEMAYOR, J.: than the required distance of three feet from the edge of the ‘media agua’. It is
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, also a fact, however, that after the ‘media agua’ was constructed the owner was
his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media given a final permit of occupancy of the house.
agua” said to be in a leaking condition. The “media agua” was just below the “The wire was an exposed, high tension wire carrying a load of 3,600 volts. There
window of the third story. Standing on said “media agua”, Magno received from was, according to Appellant, no insulation that could have rendered it safe, first,
his son thru that window a 3’ X 6’ galvanized iron sheet to cover the leaking because there is no insulation material in commercial use for such kind of
portion, turned around and in doing so the lower end of the iron sheet came into wire; and secondly, because the only insulation material that may be effective is
contact with the electric wire of the Manila Electric Company (later referred to as still in the experimental stage of development and, anyway, its costs would be
the Company) strung parallel to the edge of the “media agua” and 2 1/2 feet prohibitive… ”
from it, causing his death by electrocution. His widow and children fled suit to
recover damages from the company. After hearing, the trial court rendered The theory followed by the appellate court in finding for the Plaintiff is that
judgment in their favor — P10,000 as compensatory damages; P784 as actual although the owner of the house in constructing the “media agua” in question
damages; P2,000 as moral and exemplary damages; and P3,000 as attorney’s fees, exceeded the limits fixed in the permit, still, after making that “media agua”, its
with costs. On appeal to the Court of Appeals, the latter affirmed the judgment construction though illegal, was finally approved because he was given a final
with slight modification by reducing the attorney’s fees from P3,000 to P1,000 permit to occupy the house; that it was the company that was at fault and was
with costs. The electric company has appealed said decision to us. guilty of negligence because although the electric wire in question had been
installed long before the construction of the house and in accordance with the
The findings of fact made by the Court of Appeals which are conclusive are stated ordinance fixing a minimum of 3 feet, mere compliance with the regulations does
in the following portions of its decision which we reproduce below: not satisfy the requirement of due diligence nor avoid the need for adopting such
“The electric wire in question was an exposed, uninsulated primary wire other precautionary measures as may be warranted; that negligence cannot be
stretched between poles on the street and carrying a charge of 3,600 volts. It was determined by a simple matter of inches; that all that the city did was to
installed there some two years before Peñaloza’s house was constructed. The prescribe certain minimum conditions and that just because the ordinance
record shows that during the construction of said house a similar incident took required that primary electric wires should be not less than 3 feet from any
place, although fortunate]y with much less tragic consequences. A piece of wood house, the obligation of due diligence is not fulfilled by placing such wires at a
which a carpenter was holding happened to come in contact with the same wire, distance of 3 feet and one inch, regardless of other factors. The appellate court,
producing some sparks. The owner of the house forthwith complained however, refrained from stating or suggesting what other precautionary measures
toDefendant about the danger which the wire presented, and as a could and should have been adopted.
result Defendant moved one end of the wire farther from the house by means of a After a careful study and discussion of the case and the circumstances surrounding
brace, but left the other end where it was. the same, we are inclined to agree to the contention of Petitioner Company that
“At any rate, as revealed by the ocular inspection of the premises ordered by the the death of Magno was primarily caused by his own negligence and in some
trial court, the distance from the electric wire to the edge of the ‘media agua’ on measure by the too close proximity of the “media agua” or rather its edge to the
which the deceased was making repairs was only 30 inches or 2 1/2 feet. electric wire of the company by reason of the violation of the original permit
Regulations of the City of Manila required that ‘all wires be kept three feet from given by the city and the subsequent approval of said illegal construction of the
the building.’ Appellant contends that in applying said regulations to the case at “media agua”. We fail to see how the Company could be held guilty of negligence
bar the reckoning should not be from the edge of the ‘media agua’ but from the or as lacking in due diligence. Although the city ordinance called for a distance of
side of the house and that, thus measured, the distance was almost 7 feet, or 3 feet of its wires from any building, there was actually a distance of 7 feet and 2
more then the minimum prescribed. This contention is manifestly groundless, for 3/4 inches of the wires from the side of the house of Peñaloza. Even considering
not only is a ‘media agua’ an integral part of the building to which it is attached said regulation distance of 3 feet as referring not to the side of a building, but to
but to exclude it in measuring the distance would defeat the purpose of the any projecting part thereof, such as a “media agua”, had the house owner
followed the terms of the permit given him by the city for the construction of his In support of its theory and holding that Defendant-Appellant was liable for
“media agua”, namely, one meter or 39 3/8 inches wide, the distance from the damages the Court of Appeals cites the case of Astudillo vs. Manila Electric Co.,
wires to the edge of said “media agua” would have been 3 feet and 11 3/8 inches. 55 Phil., 427. We do not think the case is exactly applicable. There, the premises
In fixing said one meter width for the “media agua” the city authorities must have involved was that elevated portion or top of the walls of Intramuros, Manila, just
wanted to preserve the distance of at least 3 feet between the wires and any above the Sta. Lucia Gate. In the words of the Court, it was “a public place where
portion of a building. Unfortunately, however, the house owner disregarding the persons come to stroll, to rest and to enjoy themselves”. The electric company
permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving was clearly negligent in placing its wires so near the place that without much
only a distance of 2 1/2 feet between the “Media agua” as illegally constructed difficulty or exertion, a person by stretching his hand out could touch them. A boy
and the electric wires. And added to this violation of the permit by the house named Astudillo, placing one foot on a projection, reached out and actually
owner, was its approval by the city through its agent, possibly an inspector. Surely grasped the electric wire and was electrocuted. The person electrocuted in said
we cannot lay these serious violations of a city ordinance and permit at the door case was a boy who was in no position to realize the danger. In the present case,
of the Company, guiltless of breach of any ordinance or regulation. The Company however, the wires were well high over the street where there was no possible
cannot be expected to be always on the lookout for any illegal construction which danger to pedestrians. The only possible danger was to persons standing on the
reduces the distance between its wires and said construction, and after finding “media agua”, but a “media agua” can hardly be considered a public place where
that said distance of 3 feet had been reduced, to change the stringing or persons usually gather. Moreover, a person standing on the “media agua” could
installation of its wires so as to preserve said distance. It would be much easier not have reached the wires with his hands alone. It was necessary as was done by
for the City, or rather it is its duty, to be ever on the alert and to see to it that its Magno to hold something long enough to reach the wire. Furthermore, Magno was
ordinances are strictly followed by house owners and to condemn or disapprove not a boy or a person immature but the father of a family, supposedly a tinsmith
all illegal constructions. Of course, in the present case, the violation of the trained and experienced in the repair of galvanized iron roofs and “media agua”.
permit for the construction of the “media agua” was not the direct cause of the Moreover, in that very case of Astudillo vs. Manila Electric Co., supra, the court
accident. It merely contributed to it. Had said “media agua” been only one meter said that although it is a well- established rule that the liability of electric
wide as allowed by the permit, Magno standing on it, would instinctively have companies for damages or personal injuries is governed by the rules of
stayed closer to or hugged the side of the house in order to keep a safe margin negligence, nevertheless such companies are not insurers of the safety of the
between the edge of the “media agua” and the yawning 2-story distance or height public.
from the ground, and possibly if not probably avoided the fatal contact between But even assuming for a moment that under the facts of the present case
the lower end of the iron sheet and the wires. the Defendantelectric company could be considered negligent in installing its
We realize that the presence of the wires in question quite close to the house or electric wires so close to the house and “media agua” in question, and in failing
its “media agua” was always a source of danger considering their high voltage and to properly insulate those wires (although according to the unrefuted claim of
uninsulated as they were, but the claim of the company and the reasons given by said company it was impossible to make the insulation of that kind of wire),
it for not insulating said wires were unrefuted as we gather from the findings of nevertheless to hold the Defendant liable in damages for the death of Magno,
the Court of Appeals, and so we have to accept them as satisfactory. such supposed negligence of the company must have been the proximate and
Consequently, we may not hold said company as guilty of negligence or wanting in principal cause of the accident, because if the act of Magno in turning around and
due diligence in failing to insulate said wires. As to their proximity to the house it swinging the galvanized iron sheet with his hands was the proximate and principal
is to be supposed that distance of 3 feet was considered sufficiently safe by the cause of the electrocution, then his heirs may not recover. Such was the holding
technical men of the city such as its electrician or engineer. Of course, a greater of this Court in the case of Taylor vs. Manila Electric Railroad and Light Company,
distance of say 6 feet or 12 feet would have increased the margin of safety but 16 Phil., 8. In that case, the electric company was found negligent in leaving
other factors had to be considered such as that the wires could not be strung or scattered on its premises fulminating caps which Taylor, a 15- year old boy found
the posts supporting them could not be located too far toward the middle of the and carried home. In the course of experimenting with said fulminating caps, he
street. Thus, the real cause of the accident or death was the reckless or negligent opened one of them, held it out with his hands while another boy applied a
act of Magno himself. When he was called by his stepbrother to repair the “media lighted match to it, causing it to explode and injure one of his eyes eventually
agua” just below the third story window, it is to be presumed that due to his age causing blindness in said eye. Said this Tribunal in denying recovery for the injury:
and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter “ , so that while it may be true that these injuries would not have been incurred
and had training and experience for the job. So, he could not have been entirely a but for the negligent act of the Defendant in leaving the caps exposed on its
stranger to electric wires and the danger lurking in them. But unfortunately, in premises, neverthelessPlaintiff’s own act was the proximate and principal cause
the instant care, his training and experience failed him, and forgetting where he of the accident which inflicted the injury.”
was standing, holding the 6-feet iron sheet with both hands and at arms length,
evidently without looking, and throwing all prudence and discretion to the winds, To us it is clear that the principal and proximate cause of the electrocution was
he turned around swinging his arms with the motion of his body, thereby causing not the electric wire, evidently a remote cause, but rather the reckless and
his own electrocution. negligent act of Magno in turning around and swinging the galvanized iron sheet
without taking any precaution, such as looking back toward the street and at the
wire to avoid its contacting said iron sheet, considering the latter’s length of 6
feet. For a better understanding of the rule on remote and proximate cause with
respect to injuries, we find the following citation helpful:
“A prior and remote cause cannot be made the basis of an action if such remote
cause did nothing more than furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated, and efficient cause
of the injury, even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition,
such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts),
uninsulated and so close to houses is a constant source of danger, even death,
especially to persons who having occasion to be near said wires, do not adopt the
necessary precautions. But may be, the City of Manila authorities and the electric
company could get together and devise means of minimizing this danger to the
public. Just as the establishment of pedestrian lanes in city thoroughfares may
greatly minimize danger to pedestrians because drivers of motor vehicles may
expect danger and slow down or even stop and take other necessary precaution
upon approaching said lanes, so, a similar way may possibly be found. Since these
high voltage wires cannot be properly insulated and at reasonable cost, they
might perhaps be strung only up to the outskirts of the city where there are few
houses and few pedestrians and there step-down to a voltage where the wires
carrying the same to the city could be properly insulated for the better protection
of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is
hereby reversed and the complaint filed against the Company is hereby dismissed.
No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
G.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant,

M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.

No appearance for appellee.

This is an appeal from a judgment of the Court of First Instance of the city of
Manila dismissing the complaint on the merits filed in an action to recover
damages for injuries sustained by plaintiff's automobile by reason of defendant's
negligence in causing a collision between his automobile and that of plaintiff. The
court in its judgment also dismissed a cross-complaint filed by the defendant,
praying for damages against the plaintiff on the ground that the injuries sustained
by the defendant's automobile in the collision referred to, as well as those to
plaintiff's machine, were caused by the negligence of the plaintiff in handling his
The court found upon the evidence that both the plaintiff and the defendant were
negligent in handling their automobiles and that said negligence was of such a
character and extent on the part of both as to prevent either from
Upon the facts, as they appear of record, the judgment must be affirmed, as the
evidence clearly supports the decision of the trial court. The law applicable to
the facts also requires an affirmance of the judgment appealed from. Where the
plaintiff in a negligence action, by his own carelessness contributes to the
principal occurrence, that is, to the accident, as one of the determining causes
thereof, he cannot recover. This is equally true of the defendant; and as both of
them, by their negligent acts, contributed to the determining cause of the
accident, neither can recover.
The judgment appealed from is affirmed, with costs against the appellant.itc-alf
Arellano, C.J., Torres, Johnson, Carson, Trent and Araullo, JJ., concur.
EN BANC principally to the nervous shock and organic calefaction produced by the
G.R. No. L-30741 January 30, 1930 extensive burns from the hot water. "The danger from burns is proportional rather
to the extent of surface involved than to the depth of the burn". (Wharton &
TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants, Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority continues.
vs. "Burns of the first degree, covering two-thirds of the body surface, are rarely
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD., defendants- recovered from. . . . Children seem especially susceptible to the effect of burns."
appellee. (Pp. 263, 264).
Although the trial judge made the findings of fact hereinbefore outlined, he
Kapunan and Kapunan for appellants. nevertheless was led to order the dismissal of the action because of the
Camus and Delgado for appellees. contributory negligence of the plaintiffs. It is from this point that a majority of
the court depart from the stand taken by the trial judge. The mother and her
MALCOLM, J.: child had a perfect right to be on the principal street of Tacloban, Leyte, on the
The parents of the five-year old child, Purificacion Bernal, appeal from a evening when the religious procession was held. There was nothing abnormal in
judgment of the Court of First Instance of Leyte, which denied them P15,000 allowing the child to run along a few paces in advance of the mother. No one
damages from J.V. House and the Tacloban Electric & Ice Plant, Ltd., for the could foresee the coincidence of an automobile appearing and of a frightened
death of the child as a consequence of burns alleged to have been caused by the child running and falling into a ditch filled with hot water. The doctrines
fault and negligence of the defendants. announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co.
The salient facts as found by the trial judge are the following: ([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be
enforced. The contributory negligence of the child and her mother, if any, does
On the evening of April 10, 1925, the procession of Holy Friday was held in not operate as a bar to recovery, but in its strictest sense could only result in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came reduction of the damages.
from another municipality to attend the religious celebration. After the
procession was over, the woman and her daughter, accompanied by two other Having reached the conclusion that liability exists, we next turn to discover who
persons by the names of Fausto and Elias, passed along a public street named can recover damages for the obligation, and against whom the action will lie. The
Gran Capitan. The little girl was allowed to get a short distance in advance of her plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of
mother and her friends. When in front of the offices of the Tacloban Electric & Purificacion Bernal and the former was the natural father, who had never legally
Ice Plant, Ltd., and automobile appeared from the opposite direction which so recognized his child. The daughter lived with the mother, and presumably was
frightened the child that she turned to run, with the result that she fell into the supported by her. Under these facts, recovery should be permitted the mother
street gutter. At that time there was hot water in this gutter or ditch coming from but not the father. As to the defendants, they are J.V. House and the Tacloban
the Electric Ice Plant of J.V. House. When the mother and her companions Electric & Ice Plant, Ltd., J.V. House was granted a franchise by Act No. 2700 of
reached the child, they found her face downward in the hot water. Her clothes the Philippine Legislature approved on March 9, 1917. He only transferred this
were immediately removed and, then covered with a garment, the girl was taken franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926,
to the provincial hospital. There she was attended by the resident physician, Dr. that is, nearly a year after the death of the child Purificacion Bernal. Under these
Victoriano A. Benitez. Despite his efforts, the child died that same night at 11:40 facts, J.V. House is solely responsible.
o'clock. Counsel for appellees point out that there is no satisfactory proof to establish the
Dr. Benitez, who, of course, was in a better position than any one to know the pecuniary loss. That is true. But in cases of this character the law presumes a loss
cause of the death, and who had no reason to depart from the true facts, because of the impossibility of exact computation. There is not enough money in
certified that the cause of death was "Burns, 3rd Degree, whole Body", and that the entire world to compensate a mother for the death of her child. In criminal
the contributory causes were "Congestion of the Brain and visceras of the chest & cases, the rule has been to allow as a matter of course P1,000 as indemnity to the
abdomen". The same physician in his general record in the Leyte Hospital for this heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil.,
patient, under diagnosis in full, stated: "Burned 3rd Degree, whole body". The 821), which in many respects is on all fours with the case at bar, the same
treatment record of the attending nurse was much to the same effect. amount of P1,000 was allowed the mother of the dead boy eight or nine years of
age. The same criterion will have to be followed in this instance.
The defense was that the hot water was permitted to flow down the side of the
street Gran Captain with the knowledge and consent of the authorities; that the The result will, therefore, be to accept the findings of fact made by the trial
cause of death was other than the hot water; and that in the death the plaintiffs judge; to set aside the legal deductions flowing from those facts; to hold that the
contributed by their own fault and negligence. The trial judge, however, after death of the child Purificacion Bernal was the result of fault and negligence in
examination of the evidence presented by the defendants, failed to sustain their permitting hot water to flow through the public streets, there to endanger the
theory of the case, except as to the last mentioned special defense. We are lives of passers-by who were unfortunately enough to fall into it; to rule that the
shown no good reason for the departing from the conclusion of the trial judge to proper plaintiff is the mother Fortunata Enverso and not the natural father Tomas
the effect that the sudden death of the child Purification Bernal was due Bernal; to likewise rule that the person responsible to the plaintiff is J.V. House
and not the entity the Tacloban Electric & Ice Plant, Ltd.; and finally to adjudge
that the amount of recovery, without the tendering of special proof, should be
fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made, the judgment appealed from
shall in part be reversed and in the court of origin another judgment shall issue in
favor of Fortunata Enverso and against J.V. House for the amount of P1,000, and
for the costs of both instances.
Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Johnson, J., dissents.

Separate Opinions
ROMUALDEZ, J., dissenting:
Even taking the finding that the defendant by its negligence helped to bring about
the accident which resulted in the death of the child Purificacion Bernal, as not
subject to question now, not being a matter discussed in this instance, I
nevertheless deem the trial court's other finding sufficiently proved in the record,
to the effect that the plaintiff, by negligence, contributed to that most
regrettable result.
With due respect to the majority opinion, I believe the judgment appealed from
should be affirmed.
SECOND DIVISION From this decision both PLDT and private respondents appealed, the latter
G.R. No. L-57079 September 29, 1989 appealing only as to the amount of damages. Third-party defendant Barte did not
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, On September 25, 1979, the Special Second Division of the Court of Appeals
vs. rendered a decision in said appealed case, with Justice Corazon Juliano Agrava
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA as ponente, reversing the decision of the lower court and dismissing the complaint
ESTEBAN, respondents. of respondent spouses. It held that respondent Esteban spouses were negligent
and consequently absolved petitioner PLDT from the claim for damages. 7 A copy
REGALADO, J.: of this decision was received by private respondents on October 10, 1979. 8 On
This case had its inception in an action for damages instituted in the former Court October 25, 1979, said respondents filed a motion for reconsideration dated
of First Instance of Negros Occidental 1 by private respondent spouses against October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court
petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for of Appeals denied said motion for reconsideration. 10 This resolution was received
the injuries they sustained in the evening of July 30, 1968 when their jeep ran by respondent spouses on February 22, 1980. 11
over a mound of earth and fell into an open trench, an excavation allegedly On February 29, 1980, respondent Court of Appeals received private respondents'
undertaken by PLDT for the installation of its underground conduit system. The motion for leave of court to file a second motion for reconsideration, dated
complaint alleged that respondent Antonio Esteban failed to notice the open February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution
trench which was left uncovered because of the creeping darkness and the lack of likewise penned by Justice Agrava, allowed respondents to file a second motion
any warning light or signs. As a result of the accident, respondent Gloria Esteban for reconsideration, within ten (10) days from notice thereof. 13 Said resolution
allegedly sustained injuries on her arms, legs and face, leaving a permanent scar was received by private respondents on April 1, 1980 but prior thereto, private
on her cheek, while the respondent husband suffered cut lips. In addition, the respondents had already filed their second motion for reconsideration on March 7,
windshield of the jeep was shattered. 2 1980.14
PLDT, in its answer, denies liability on the contention that the injuries sustained On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss
by respondent spouses were the result of their own negligence and that the entity said second motion for reconsideration. 15 The Court of Appeals, in view of the
which should be held responsible, if at all, is L.R. Barte and Company (Barte, for divergent opinions on the resolution of the second motion for reconsideration,
short), an independent contractor which undertook the construction of the designated two additional justices to form a division of five. 16 On September 3,
manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint 1980, said division of five promulgated its resolution, penned by Justice Mariano
against Barte alleging that, under the terms of their agreement, PLDT should in A. Zosa, setting aside the decision dated September 25, 1979, as well as the
no manner be answerable for any accident or injuries arising from the negligence resolution dated, January 24,1980, and affirming in toto the decision of the lower
or carelessness of Barte or any of its employees. 4 In answer thereto, Barte court. 17
claimed that it was not aware nor was it notified of the accident involving
respondent spouses and that it had complied with the terms of its contract with On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for
PLDT by installing the necessary and appropriate standard signs in the vicinity of reconsideration of the resolution of September 3, 1980, contending that the
the work site, with barricades at both ends of the excavation and with red lights second motion for reconsideration of private respondent spouses was filed out of
at night along the excavated area to warn the traveling public of the presence of time and that the decision of September 25, 1979 penned by Justice Agrava was
excavations. 5 already final. It further submitted therein that the relationship of Barte and
petitioner PLDT should be viewed in the light of the contract between them and,
On October 1, 1974, the trial court rendered a decision in favor of private under the independent contractor rule, PLDT is not liable for the acts of an
respondents, the decretal part of which reads: independent contractor. 18 On May 11, 1981, respondent Court of Appeals
IN VIEW OF THE FOREGOING considerations the defendant promulgated its resolution denying said motion to set aside and/or for
Philippine Long Distance Telephone Company is hereby ordered reconsideration and affirming in toto the decision of the lower court dated
(A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as October 1, 1974. 19
moral damages and P5,000.00 exemplary damages; to plaintiff Coming to this Court on a petition for review on certiorari, petitioner assigns the
Antonio Esteban the sum of P2,000.00 as moral damages and following errors:
P500.00 as exemplary damages, with legal rate of interest from
the date of the filing of the complaint until fully paid. The 1. Respondent Court of Appeals erred in not denying private respondents' second
defendant is hereby ordered to pay the plaintiff the sum of motion for reconsideration on the ground that the decision of the Special Second
P3,000.00 as attorney's fees. Division, dated September 25, 1979, and the resolution of the Special Ninth
Division, dated January 24, 1980, are already final, and on the additional ground
(B) The third-party defendant is hereby ordered to reimburse that said second motion for reconsideration is pro forma.
whatever amount the defendant-third party plaintiff has paid to
the plaintiff. With costs against the defendant. 6
2. Respondent court erred in reversing the aforesaid decision and resolution and for reconsideration on March 7, 1980, both of which motions were by then time-
in misapplying the independent contractor rule in holding PLDT liable to barred.
respondent Esteban spouses. Consequently, after the expiration on February 24, 1980 of the original fifteen
A convenient resume of the relevant proceedings in the respondent court, as (15) day period, the running of which was suspended during the pendency of the
shown by the records and admitted by both parties, may be graphically presented first motion for reconsideration, the Court of Appeals could no longer validly take
as follows: further proceedings on the merits of the case, much less to alter, modify or
(a) September 25, 1979, a decision was rendered by the Court of reconsider its aforesaid decision and/or resolution. The filing of the motion for
Appeals with Justice Agrava asponente; leave to file a second motion for reconsideration by herein respondents on
February 29, 1980 and the subsequent filing of the motion itself on March 7, 1980,
(b) October 10, 1979, a copy of said decision was received by after the expiration of the reglementary period to file the same, produced no
private respondents; legal effects. Only a motion for re-hearing or reconsideration filed in time shall
(c) October 25, 1979, a motion for reconsideration was filed by stay the final order or judgment sought to be re-examined. 23
private respondents; The consequential result is that the resolution of respondent court of March 11,
(d) January 24, 1980, a resolution was issued denying said 1980 granting private respondents' aforesaid motion for leave and, giving them an
motion for reconsideration; extension of ten (10) days to file a second motion for reconsideration, is null and
void. The period for filing a second motion for reconsideration had already
(e) February 22, 1980, a copy of said denial resolution was
expired when private respondents sought leave to file the same, and respondent
received by private respondents;
court no longer had the power to entertain or grant the said motion. The
(f) February 29, 1980, a motion for leave to file a second motion aforesaid extension of ten (10) days for private respondents to file their second
for reconsideration was filed by private respondents motion for reconsideration was of no legal consequence since it was given when
(g) March 7, 1980, a second motion for reconsideration was filed there was no more period to extend. It is an elementary rule that an application
by private respondents; for extension of time must be filed prior to the expiration of the period sought to
be extended. 24 Necessarily, the discretion of respondent court to grant said
(h) March 11, 1980, a resolution was issued allowing respondents extension for filing a second motion for reconsideration is conditioned upon the
to file a second motion for reconsideration within ten (10) days timeliness of the motion seeking the same.
from receipt; and
No appeal having been taken seasonably, the respondent court's decision, dated
(i) September 3, 1980, a resolution was issued, penned by September 25, 1979, became final and executory on March 9, 1980. The
Justice Zosa, reversing the original decision dated September subsequent resolutions of respondent court, dated March 11, 1980 and September
25, 1979 and setting aside the resolution dated January 24, 3, 1980, allowing private respondents to file a second motion for reconsideration
1980. and reversing the original decision are null and void and cannot disturb the
From the foregoing chronology, we are convinced that both the motion for leave finality of the judgment nor restore jurisdiction to respondent court. This is but in
to file a second motion for reconsideration and, consequently, said second motion line with the accepted rule that once a decision has become final and executory it
for reconsideration itself were filed out of time. is removed from the power and jurisdiction of the court which rendered it to
further alter or amend, much less revoke it. 25 The decision rendered anew is null
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the
and void. 26 The court's inherent power to correct its own errors should be
time, provided that a second motion for reconsideration may be presented within
exercised before the finality of the decision or order sought to be corrected,
fifteen (15) days from notice of the order or judgment deducting the time in
otherwise litigation will be endless and no question could be considered finally
which the first motion has been pending. 20 Private respondents having filed their
settled. Although the granting or denial of a motion for reconsideration involves
first motion for reconsideration on the last day of the reglementary period of
the exercise of discretion, 27 the same should not be exercised whimsically,
fifteen (15) days within which to do so, they had only one (1) day from receipt of
capriciously or arbitrarily, but prudently in conformity with law, justice, reason
the order denying said motion to file, with leave of court, a second motion for
and equity. 28
reconsideration. 21 In the present case, after their receipt on February 22, 1980 of
the resolution denying their first motion for reconsideration, private respondents Prescinding from the aforesaid procedural lapses into the substantive merits of
had two remedial options. On February 23, 1980, the remaining one (1) day of the the case, we find no error in the findings of the respondent court in its original
aforesaid reglementary period, they could have filed a motion for leave of court decision that the accident which befell private respondents was due to the lack of
to file a second motion for reconsideration, conceivably with a prayer for the diligence of respondent Antonio Esteban and was not imputable to negligent
extension of the period within which to do so. On the other hand, they could have omission on the part of petitioner PLDT. Such findings were reached after an
appealed through a petition for review on certiorari to this Court within fifteen exhaustive assessment and evaluation of the evidence on record, as evidenced by
(15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a the respondent court's resolution of January 24, 1980 which we quote with
second motion 'for reconsideration on February 29, 1980, and said second motion approval:
First. Plaintiff's jeep was running along the inside lane of Lacson previous times. With ordinary precaution, he should have driven
Street. If it had remained on that inside lane, it would not have his jeep on the night of the accident so as to avoid hitting the
Exhibit B shows, through the tiremarks, that the ACCIDENT The above findings clearly show that the negligence of respondent Antonio
MOUND was hit by the jeep swerving from the left that is, Esteban was not only contributory to his injuries and those of his wife but goes to
swerving from the inside lane. What caused the swerving is not the very cause of the occurrence of the accident, as one of its determining
disclosed; but, as the cause of the accident, defendant cannot factors, and thereby precludes their right to recover damages. 30 The perils of the
be made liable for the damages suffered by plaintiffs. The road were known to, hence appreciated and assumed by, private respondents. By
accident was not due to the absence of warning signs, but to the exercising reasonable care and prudence, respondent Antonio Esteban could have
unexplained abrupt swerving of the jeep from the inside lane. avoided the injurious consequences of his act, even assuming arguendothat there
That may explain plaintiff-husband's insistence that he did not was some alleged negligence on the part of petitioner.
see the ACCIDENT MOUND for which reason he ran into it. The presence of warning signs could not have completely prevented the accident;
Second. That plaintiff's jeep was on the inside lane before it the only purpose of said signs was to inform and warn the public of the presence
swerved to hit the ACCIDENT MOUND could have been of excavations on the site. The private respondents already knew of the presence
corroborated by a picture showing Lacson Street to the south of of said excavations. It was not the lack of knowledge of these excavations which
the ACCIDENT MOUND. caused the jeep of respondents to fall into the excavation but the unexplained
It has been stated that the ditches along Lacson Street had sudden swerving of the jeep from the inside lane towards the accident mound. As
already been covered except the 3 or 4 meters where the opined in some quarters, the omission to perform a duty, such as the placing of
ACCIDENT MOUND was located. Exhibit B-1 shows that the warning signs on the site of the excavation, constitutes the proximate cause only
ditches on Lacson Street north of the ACCIDENT MOUND had when the doing of the said omitted act would have prevented the injury. 31 It is
already been covered, but not in such a way as to allow the basic that private respondents cannot charge PLDT for their injuries where their
outer lane to be freely and conveniently passable to vehicles. own failure to exercise due and reasonable care was the cause thereof. It is both
The situation could have been worse to the south of the a societal norm and necessity that one should exercise a reasonable degree of
ACCIDENT MOUND for which reason no picture of the ACCIDENT caution for his own protection. Furthermore, respondent Antonio Esteban had the
MOUND facing south was taken. last clear chance or opportunity to avoid the accident, notwithstanding the
negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he
Third. Plaintiff's jeep was not running at 25 kilometers an hour passed on that street almost everyday and had knowledge of the presence and
as plaintiff-husband claimed. At that speed, he could have location of the excavations there. It was his negligence that exposed him and his
braked the vehicle the moment it struck the ACCIDENT MOUND. wife to danger, hence he is solely responsible for the consequences of his
The jeep would not have climbed the ACCIDENT MOUND several imprudence.
feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25 Moreover, we also sustain the findings of respondent Court of Appeals in its
kilometers an hour, plaintiff's would not have been thrown original decision that there was insufficient evidence to prove any negligence on
against the windshield and they would not have suffered their the part of PLDT. We have for consideration only the self-serving testimony of
injuries. respondent Antonio Esteban and the unverified photograph of merely a portion of
the scene of the accident. The absence of a police report of the incident and the
Fourth. If the accident did not happen because the jeep was non-submission of a medical report from the hospital where private respondents
running quite fast on the inside lane and for some reason or were allegedly treated have not even been satisfactorily explained.
other it had to swerve suddenly to the right and had to climb
over the ACCIDENT MOUND, then plaintiff-husband had not As aptly observed by respondent court in its aforecited extended resolution of
exercised the diligence of a good father of a family to avoid the January 24, 1980 —
accident. With the drizzle, he should not have run on dim lights, (a) There was no third party eyewitness of the accident. As to
but should have put on his regular lights which should have how the accident occurred, the Court can only rely on the
made him see the ACCIDENT MOUND in time. If he was running testimonial evidence of plaintiffs themselves, and such evidence
on the outside lane at 25 kilometers an hour, even on dim should be very carefully evaluated, with defendant, as the party
lights, his failure to see the ACCIDENT MOUND in time to brake being charged, being given the benefit of any doubt. Definitely
the car was negligence on his part. The ACCIDENT MOUND was without ascribing the same motivation to plaintiffs, another
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet person could have deliberately engineered a similar accident in
wide. If he did not see the ACCIDENT MOUND in time, he would the hope and expectation that the Court can grant him
not have seen any warning sign either. He knew of the existence substantial moral and exemplary damages from the big
and location of the ACCIDENT MOUND, having seen it many corporation that defendant is. The statement is made only to
stress the disadvantageous position of defendant which would 21 In the computation of the reglementary period, especially if
have extreme difficulty in contesting such person's claim. If it is interrupted by the filing of a pleading, the date when the
there were no witness or record available from the police pleading is filed and the date of receipt of the judgment or
department of Bacolod, defendant would not be able to order thereon are to be excluded (Lloren, etc. vs. De Veyra,
determine for itself which of the conflicting testimonies of etc., et al., 4 SCRA 637 [1962]; De las Alas, et al. vs. Court of
plaintiffs is correct as to the report or non-report of the Appeals, et al., 83 SCRA 200 [1978]).
accident to the police department. 32 22 Sec. 1, Rule 45, Rules of Court; Serrano vs. Court of Appeals,
A person claiming damages for the negligence of another has the burden of et al., 139 SCRA 179 (1985).
proving the existence of such fault or negligence causative thereof. The facts 23 Sec. 3, Rule 52, Rules of Court.
constitutive of negligence must be affirmatively established by competent 24 Galima, et al. vs. Court of Appeals, et al., 16 SCRA 140
evidence. 33 Whosoever relies on negligence for his cause of action has the burden (1966); Tuazon vs. Court of Appeals, et al., 43 SCRA 664 (1972),
in the first instance of proving the existence of the same if contested, otherwise 25 Comia, et al. vs. Nicolas, etc., et al., 29 SCRA 492 (l969).
his action must fail. 26 Heirs of Patriaca, et al. vs. Court of Appeals, et al., 124 SCRA
410 (1983).
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 27 Lucero vs. Dacayo, etc., et al., 22 SCRA 1004 (1963).
1980 and September 3,1980, are hereby SET ASIDE. Its original decision, 28 Gardner, et al. vs. Court of Appeals. et al., 131 SCRA 585
promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED. (1984).
SO ORDERED. 29 Rollo, 97-98.
30 Rakes vs. Atlantic Gulf & Pacific Co., 7 Phil. 359 (1907).
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur.
31 Sangco, Torts & Damages, 1978 Rev. Ed., 150.
32 Rollo, 95.
33 Barcelo, etc. vs. Manila Electric Railroad & Light Co., 29
1 Civil Case No. 8681, Judge Ernesto Tengco, presiding.
Phil.351 (1951); Sec. 1, Rule 131, Rules of Court; 1 Jones on
2 Rollo, 49-51.
Evidence, 5th Ed., 370.
3 Ibid., 52-55.
4 Ibid., 56-58.
5 Ibid., 59-61.
6 Ibid., 70.
7 CA-G.R. No. 57352-R, Justices Jose B. Jimenez and Benjamin
K. Gorospe concurred. Rollo, 72-79.
8 Rollo, 21,156.
9 Ibid., 80-85, 156.
10 Ibid., 93-98.
11 Ibid., 21,158.
12 Rollo, CA-G.R. No. 57352-R, 141-143.
13 Ibid., Id., 155-156.
14 Ibid., Id., 144-153.
15 Ibid., Id., 168-171.
16 Ibid., Id., 185-196.
17 Rollo, 111-118.
18 Ibid., 119-120.
19 Ibid., 137-138.
20 The rule has since been modified by Sec. 11, B.P. 129,
effective August 14,1981, which provided that in the then
Intermediate Appellate Court a second motion for
reconsideration would be allowed only if the first motion for
reconsideration resulted in the reversal or substantial
modification of the original decision or final resolution.
Thereafter, effective July 28,1986, Sec. 11 of B.P. 129 was
amended by Sec. 6 of Executive Order No. 33 providing that in
the present Court of Appeals no second motion for
reconsideration from the same party shall be entertained.
FIRST DIVISION The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on
G.R. No. L-40452 October 12, 1989 October 10,1974,conviction of the accused but increased his civil liability to
P12,000. The dispositive portion of its decision reads:
GREGORIO GENOBIAGON, petitioner, WHEREFORE, finding no error in the judgment appealed from
vs. except in the amount of indemnity to be paid to the heirs of the
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. deceased, Rita B. Cabrera, which is the sum of P6,000.00 with
Mario D. Ortiz for petitioner. subsidiary imprisonment in case of insolvency which should be
raised to P12,000.00 (People vs. Pantoja, G.R. No. L-18793,
GRIÑO-AQUINO, J.: October 11, 1968, 25 SCRA 468) but without subsidiary
This is a petition for review of the Court of Appeals' decision in CA-G.R. No. imprisonment in case of insolvency, the same should be, as it is
09949-CR, dated October 10, 1974, affirming the conviction of the petitioner of hereby affirmed in all other respects with costs. (P. 37, Rollo.)
the crime of homicide thru reckless imprudence. After his motion for reconsideration of the Court of Appeals' decision was denied,
As found by the Court of Appeals, the facts of this case are: he filed a petition for review in this Court, alleging that the Court of Appeals
On December 31,1959, at about 7:30 o'clock in the evening, a erred:
rig driven by appellant bumped an old woman who was crossing 1. in not finding that the reckless negligence of the victim was
T. Padilla St., Cebu City, at the right side of T. Padilla Market. the proximate cause of the accident which led to her death;
The appellant's rig was following another at a distance of two 2. in not acquitting the petitioner on the ground of reasonable
meters. The old woman started to cross when the first rig was doubt; and
approaching her, but as appellant's vehicle was going so fast not
only because of the steep down-grade of the road, but also 3. in unjustly increasing the civil liability of the petitioner from
because he was trying to overtake the rig ahead of him, the P6,000.00 to P12,000.00, although the circumstances of the
appellant's rig bumped the old woman, who as a consequence, victim and the accused (petitioner) do not warrant such
fell at the middle of the road. The appellant continued to drive increase.
on, but a by-stander, one Vicente Mangyao, who just closed his It is quite evident that all the issues raised in the petition for review are factual.
store in market in order to celebrate the coming of the New Well-entrenched in our jurisprudence is the rule that findings of fact of the trial
Year, and who saw the incident right before him, shouted at the court and the Court of Appeals are binding upon us (Bernardo vs. Bernardo, 101
appellant to stop. He ran after appellant when the latter SCRA 351; Vda. De Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).
refused to stop. Overtaking the appellant, Mangyao asked him
The alleged contributory negligence of the victim, if any, does not exonerate the
why he bumped the old woman and his answer was, 'it was the
accused. "The defense of contributory negligence does not apply in criminal cases
old woman that bumped him.' The appellant went back to the
committed through reckless imprudence, since one cannot allege the negligence
place where the old woman was struck by his rig. The old
of another to evade the effects of his own negligence (People vs. Orbeta, CA-G.R.
woman was unconscious, and the food and viands she was
No. 321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).
carrying were scattered on her body. The victim was then
loaded in a jeep and brought to the hospital where she died The petitioner's contention that the Court of Appeals unjustly increased his civil
three hours later (Exh. C). The findings after an autopsy are as liability to P12,000, is devoid of merit. The prevailing jurisprudence in fact
follows: provides that indemnity for death in homicide or murder is P30,000 (People vs. De
la Fuente, [1983]126 SCRA 518; People vs. Centeno, 130 SCRA 198). Accordingly,
Contusion with Hematoma Left, Frontal and
the civil liability of the petitioner is increased to P30,000.
Occipito-Parietal Regionas Fracture Occipito-
Parietal Bone Cerebral Hemorrhage. WHEREFORE, the appealed decision is affirmed with modification as to the civil
liability of the petitioner which is hereby increased to P30,000. Costs against
The deceased was an eighty-one-year old woman named Rita B.
Cabrera. (pp. 31-32, Rollo.)
Petitioner was charged with homicide thru reckless imprudence in the Court of
First Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner Narvasa, Cruz and Medialdea, JJ., concur.
guilty of the felony charged and sentenced him to "suffer an indeterminate Gancayco, J., took no part.
penalty of three (3) months of arresto mayor as minimum to one (1) year, one (1)
month and eleven (11) days of prision correccional as maximum, to indemnify the
heirs of Rita Banzon Cabrera the sum of P6,000 with subsidiary imprisonment in
case of insolvency, not to exceed 1/3 of the principal penalty and to pay the
costs" (p. 3, Appellant's Brief, p. 56, Rollo).
EN BANC the day before the accident he called the attention of McKenna, the foreman, to
G.R. No. 1719 January 23, 1907 it and asked by simply straightening out the crosspiece, resetting the block under
the stringer and renewing the tie, but otherwise leaving the very same timbers as
M. H., RAKES, plaintiff-appellee, before. It has not proven that the company inspected the track after the typhoon
vs. or had any proper system of inspection.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant. In order to charge the defendant with negligence, it was necessary to show a
breach of duty on its part in failing either to properly secure the load on iron to
A. D. Gibbs for appellant. vehicles transporting it, or to skillfully build the tramway or to maintain it in
F. G. Waite, & Thimas Kepner for appellee. proper condition, or to vigilantly inspect and repair the roadway as soon as the
depression in it became visible. It is upon the failure of the defendant to repair
TRACEY, J.: the weakened track, after notice of its condition, that the judge below based his
This is an action for damages. The plaintiff, one of a gang of eight negro laborers judgment.
in the employment of the defendant, was at work transporting iron rails from a This case presents many important matters for our decision, and first among them
barge in the harbor to the company's yard near the malecon in Manila. Plaintiff is the standard of duty which we shall establish in our jurisprudence on the part
claims that but one hand car was used in this work. The defendant has proved of employees toward employees.
that there were two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay The lack or the harshness of legal rules on this subject has led many countries to
upon two crosspieces or sills secured to the cars, but without side pieces or enact designed to put these relations on a fair basis in the form of compensation
guards to prevent them from slipping off. According to the testimony of the or liability laws or the institution of insurance. In the absence of special
plaintiff, the men were either in the rear of the car or at its sides. According to legislation we find no difficulty in so applying the general principles of our law as
that defendant, some of them were also in front, hauling by a rope. At a certain to work out a just result.
spot at or near the water's edge the track sagged, the tie broke, the car either Article 1092 of the Civil Code provides:
canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which
Civil obligations, arising from crimes or misdemeanors, shall be governed
was afterwards amputated at about the knee.
by the provisions of the Penal Code.
This first point for the plaintiff to establish was that the accident happened
And article 568 of the latter code provides:
through the negligence of the defendant. The detailed description by the
defendant's witnesses of the construction and quality of the track proves that if He who shall execute through reckless negligence an act that if done
was up to the general stranded of tramways of that character, the foundation with malice would constitute a grave crime, shall be punished.
consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 And article 590 provides that the following shall be punished:
to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the 4. Those who by simple imprudence or negligence, without committing
across the stringers the parallel with the blocks were the ties to which the tracks any infraction of regulations, shall cause an injury which, had malice
were fastened. After the road reached the water's edge, the blocks or crosspieces intervened, would have constituted a crime or misdemeanor.
were replaced with pilling, capped by timbers extending from one side to the And finally by articles 19 and 20, the liability of owners and employers for the
other. The tracks were each about 2 feet wide and the two inside rails of the faults of their servants and representatives is declared to be civil and subsidiary
parallel tracks about 18 inches apart. It was admitted that there were no side in its character.
pieces or guards on the car; that where no ends of the rails of the track met each
It is contented by the defendant, as its first defense to the action, that the
other and also where the stringers joined, there were no fish plates. the
necessary conclusion from these collated laws is that the remedy for injuries
defendant has not effectually overcome the plaintiff's proof that the joints
through negligence lies only in a criminal action in which the official criminally
between the rails were immediately above the joints between the underlying
responsible must be made primarily liable and his employer held only subsidiarily
to him. According to this theory the plaintiff should have procured the arrest of
The cause of the sagging of the tracks and the breaking of the tie, which was the the representative of the company accountable for not repairing the tract, and on
immediate occasion of the accident, is not clear in the evidence, but is found by his prosecution a suitable fine should have been imposed, payable primarily by
the trial court and is admitted in the briefs and in the argument to have been the him and secondarily by his employer.
dislodging of the crosspiece or piling under the stringer by the water of the bay
This reasoning misconceived the plan of the Spanish codes upon this subject.
raised by a recent typhoon. The superintendent of the company attributed it to
Article 1093 of the Civil Code makes obligations arising from faults or negligence
the giving way of the block laid in the sand. No effort was made to repair the
not punished by the law, subject to the provisions of Chapter 11 of Title XVI.
injury at the time of the occurrence. According to plaintiffs witnesses, a
Section 1902 of that chapter reads:
depression of the track, varying from one half inch to one inch and a half, was
therafter apparent to the eye, and a fellow workman of the plaintiff swears that
A person who by an act or omission causes damage to another when Under article 20 of the Penal Code the responsibility of an employer may be
there is fault or negligence shall be obliged to repair the damage so regarded as subsidiary in respect of criminal actions against his employees only
done. while they are process of prosecution, or in so far as they determinate the
SEC. 1903. The obligation imposed by the preceding article is existence of the criminal act from which liability arises, and his obligation under
demandable, not only for personal acts and omissions, but also for those the civil law and its enforcement in the civil courts is not barred thereby unless
of the persons for whom they should be responsible. by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders
The father, and on his death or incapacity, the mother, is liable for the it unnecessary to finally determine here whether this subsidiary civil liability in
damages caused by the minors who live with them. penal actions survived the laws that fully regulated it or has been abrogated by
xxx xxx xxx the American civil and criminal procedure now in force in the Philippines.
Owners or directors of an establishment or enterprise are equally liable The difficulty in construing the articles of the code above cited in this case
for the damages caused by their employees in the service of the appears from the briefs before us to have arisen from the interpretation of the
branches in which the latter may be employed or in the performance of words of article 1093, "fault or negligence not punished by law," as applied to the
their duties. comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It
has been shown that the liability of an employer arising out of his relation to his
xxx xxx xxx
employee who is the offender is not to be regarded as derived from negligence
The liability referred to in this article shall cease when the persons punished by the law, within the meaning of articles 1092 and 1093. More than
mentioned therein prove that they employed all the diligence of a good this, however, it can not be said to fall within the class of acts unpunished by the
father of a family to avoid the damages. law, the consequences of which are regulated by articles 1902 and 1903 of the
As an answer to the argument urged in this particular action it may be sufficient Civil Code. The acts to which these articles are applicable are understood to be
to point out that nowhere in our general statutes is the employer penalized for those and growing out of preexisting duties of the parties to one another. But
failure to provide or maintain safe appliances for his workmen. His obligation were relations already formed give rise to duties, whether springing from contract
therefore is one "not punished by the law " and falls under civil rather than or quasi contract, then breaches of those duties are subject to articles 1101,
criminal jurisprudence. But the answer may be a broader one. We should be 1103, and 1104, of the same code. A typical application of the distinction may be
reluctant, under any conditions, to adopt a forced construction of these scientific found in the consequences of a railway accident due to defective machinery
codes, such as is proposed by the defendant, that would rob some of these supplied by the employer. His liability to his employee would arise out of the
articles of effect, would shut out litigants their will from the civil courts, would contract of employment, that to the passengers out of the contract for passage.
make the assertion of their rights dependent upon the selection for prosecution of while that to that injured bystander would originate in the negligent act itself.
the proper criminal offender, and render recovery doubtful by reason of the strict This distinction is thus clearly set forth by Manresa in his commentary on article
rules of proof prevailing in criminal actions. Even if these articles had always 1093.
stood alone, such a construction would be unnecessary, but clear light is thrown We are with reference to such obligations, that culpa, or negligence,
upon their meaning by the provisions of the Law of Criminal Procedure of Spain may be understood in two difference senses; either as culpa,
(Ley de Enjuiciamiento Criminal), which, though n ever in actual force in these substantive and independent, which on account of its origin arises in an
Islands, was formerly given a suppletory or explanatory effect. Under article 111 obligation between two persons not formerly bound by any other
of this law, both classes of action, civil and criminal, might be prosecuted jointly obligation; or as an incident in the performance of an obligation; or as
or separately, but while the penal action was pending the civil was suspended. already existed, which can not be presumed to exist without the other,
According to article 112, the penal action once started, the civil remedy should and which increases the liability arising from the already exiting
be sought therewith, unless it had been waived by the party injured or been obligation.
expressly reserved by him for civil proceedings for the future. If the civil action
Of these two species of culpa the first one mentioned, existing by itself,
alone was prosecuted, arising out of a crime that could be enforced by only on
may be also considered as a real source of an independent obligation,
private complaint, the penal action thereunder should be extinguished. These
and, as chapter 2, title 16 of this book of the code is devoted to it, it is
provisions are in harmony with those of articles 23 and 133 of our Penal Code on
logical to presume that the reference contained in article 1093 is limited
the same subject.
thereto and that it does not extend to those provisions relating to the
An examination of this topic might be carried much further, but the citations of other species of culpa (negligence), the nature of which we will discuss
these articles suffices to show that the civil liability was not intended to be later. (Vol. 8, p. 29.)
merged in the criminal nor even to be suspended thereby, except as expressly
And in his commentary on articles 1102 and 1104 he says that these two species of
provided by law. Where an individual is civilly liable for a negligent act or
negligence may be somewhat inexactly described as contractual and extra-
omission, it is not required that the inured party should seek out a third person
contractual, the letter being the culpa aquiliana of the Roman law and not
criminally liable whose prosecution must be a condition precedent to the
entailing so strict an obligation as the former. This terminology is unreservedly
enforcement of the civil right.
accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported be decisions of the supreme court The French Cour de Cassation clearly laid down the contrary principle in its
of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for The most controverted question in the case is that of the negligence of the
hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.) plaintiff, contributing to the accident, to what extent it existed in fact and what
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of legal effect is to be given it. In two particulars is he charged with carelessness:
January 30, 1900, throws uncertain light on the relation between master and First. That having noticed the depression in the track he continued his work; and
workman. Moved by the quick industrial development of their people, the courts
of France early applied to the subject the principles common to the law of both Second. That he walked on the ends of the ties at the side of the car instead of
countries, which are lucidly discussed by the leading French commentators. along the boards, either before or behind it.
The original French theory, resting the responsibility of owners of industrial As to the first point, the depression in the track night indicate either a serious or
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, a rival difficulty. There is nothing in the evidence to show that the plaintiff did or
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon could see the displaced timber underneath the sleeper. The claim that he must
yielded to the principle that the true basis is the contractual obligation of the have done so is a conclusion drawn from what is assumed to have been a probable
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.) condition of things not before us, rather than a fair inference from the testimony.
While the method of construction may have been known to the men who had
Later the hardships resulting from special exemptions inserted in contracts for helped build the road, it was otherwise with the plaintiff who had worked at this
employment led to the discovery of a third basis for liability in an article of he job less than two days. A man may easily walk along a railway without perceiving
French Code making the possessor of any object answerable for damage done by a displacement of the underlying timbers. The foreman testified that he knew the
it while in his charge. Our law having no counterpart of this article, applicable to state of the track on the day of the accident and that it was then in good
every kind of object, we need consider neither the theory growing out of it nor condition, and one Danridge, a witness for the defendant, working on the same
that of "professional risk" more recently imposed by express legislation, but rather job, swore that he never noticed the depression in the track and never saw any
adopting the interpretation of our Civil Code above given, find a rule for this case bad place in it. The sagging of the track this plaintiff did perceive, but that was
in the contractual obligation. This contractual obligation, implied from the reported in his hearing to the foreman who neither promised nor refused to repair
relation and perhaps so inherent in its nature to be invariable by the parties, it. His lack of caution in continuing at his work after noticing the slight depression
binds the employer to provide safe appliances for the use of the employee, thus of the rail was not of so gross a nature as to constitute negligence, barring his
closely corresponding to English and American Law. On these principles it was the recovery under the severe American rule. On this point we accept the conclusion
duty of the defendant to build and to maintain its track in reasonably sound of the trial judge who found as facts that "the plaintiff did not know the cause of
condition, so as to protect its workingmen from unnecessary danger. It is plain the one rail being lower than then other" and "it does not appear in this case that
that in one respect or the other it failed in its duty, otherwise the accident could the plaintiff knew before the accident occurred that the stringers and rails joined
not have occurred; consequently the negligence of the defendant is established. in the same place."
Another contention of the defense is that the injury resulted to the plaintiff as a Were we not disposed to agree with these findings they would, nevertheless, be
risk incident to his employment and, as such, one assumed by him. It is evident binding upon us, because not "plainly and manifestly against the weight of
that this can not be the case if the occurrence was due to the failure to repair the evidence," as those words of section 497, paragraph 3 of the Code of Civil
track or to duly inspect, it for the employee is not presumed to have stipulated Procedure were interpreted by the Supreme Court of the United States in the De
that the employer might neglect his legal duty. Nor may it be excused upon the la Rama case (201 U. S., 303).
ground that the negligence leading to the accident was that of a fellow-servant of
the injured man. It is not apparent to us that the intervention of a third person In respect of the second charge of negligence against the plaintiff, the judgment
can relieve the defendant from the performance of its duty nor impose upon the below is not so specific. While the judge remarks that the evidence does not
plaintiff the consequences of an act or omission not his own. Sua cuique culpa justify the finding that the car was pulled by means of a rope attached to the
nocet. This doctrine, known as "the fellow-servant, rule," we are not disposed to front end or to the rails upon it, and further that the circumstances in evidence
introduce into our jurisprudence. Adopted in England by Lord Abinger in the case make it clear that the persons necessary to operate the car could not walk upon
of Prescottvs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been the plank between the rails and that, therefore, it was necessary for the
effectually abrogated by "the Employers' Liability Acts" and the "Compensation employees moving it to get hold upon it as best they could, there is no specific
Law." The American States which applied it appear to be gradually getting rid of finding upon the instruction given by the defendant to its employees to walk only
it; for instance, the New York State legislature of 1906 did away with it in respect upon the planks, nor upon the necessity of the plaintiff putting himself upon the
to railroad companies, and had in hand a scheme for its total abolition. It has ties at the side in order to get hold upon the car. Therefore the findings of the
never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, judge below leave the conduct of the plaintiff in walking along the side of the
Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent loaded car, upon the open ties, over the depressed track, free to our inquiry.
instances in Fuzier-Herman, Title Responsibilite Civile, 710.) While the plaintiff and his witnesses swear that not only were they not forbidden
to proceed in this way, but were expressly directed by the foreman to do so, both
the officers of the company and three of the workmen testify that there was a The decision of the 7th of March, 1902, on which stress has been laid, rested on
general prohibition frequently made known to all the gang against walking by the two bases, one, that the defendant was not negligent, because expressly relieved
side of the car, and the foreman swears that he repeated the prohibition before by royal order from the common obligation imposed by the police law of
the starting of this particular load. On this contradiction of proof we think that maintaining a guard at the road crossing; the other, because the act of the
the preponderance is in favor of the defendant's contention to the extent of the deceased in driving over level ground with unobstructed view in front of a train
general order being made known to the workmen. If so, the disobedience of the running at speed, with the engine whistle blowing was the determining cause of
plaintiff in placing himself in danger contributed in some degree to the injury as a the accident. It is plain that the train was doing nothing but what it had a right to
proximate, although not as its primary cause. This conclusion presents sharply the do and that the only fault lay with the injured man. His negligence was not
question, What effect is to be given such an act of contributory negligence? Does contributory, it was sole, and was of such an efficient nature that without it no
it defeat a recovery, according to the American rule, or is it to be taken only in catastrophe could have happened.
reduction of damages? On the other hand, there are many cases reported in which it seems plain that the
While a few of the American States have adopted to a greater or less extent the plaintiff sustaining damages was not free from contributory negligence; for
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own instance, the decision of the 14th of December, 1894 (76Jurisprudencia Civil, No.
act contributed to his injury, provided his negligence was slight as compared with 134), in which the owner of a building was held liable for not furnishing
that of the defendant, and some others have accepted the theory of proportional protection to workmen engaged in hanging out flags, when the latter must have
damages, reducing the award to a plaintiff in proportion to his responsibility for perceived beforehand the danger attending the work.
the accident, yet the overwhelming weight of adjudication establishes the None of those cases define the effect to be given the negligence of a plaintiff
principle in American jurisprudence that any negligence, however slight, on the which contributed to his injury as one of its causes, though not the principal one,
part of the person injured which is one of the causes proximately contributing to and we are left to seek the theory of the civil law in the practice of other
his injury, bars his recovery. (English and American Encyclopedia of law, Titles countries.
"Comparative Negligence" and Contributory Negligence.")
In France in the case of Marquant, August 20, 1879, the cour de cassation held
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the that the carelessness of the victim did not civilly relieve the person without
Supreme Court of the United States thus authoritatively states the present rule of whose fault the accident could not have happened, but that the contributory
law: negligence of the injured man had the effect only of reducing the damages. The
Although the defendant's' negligence may have been the primary cause of same principle was applied in the case of Recullet, November 10, 1888. and that
the injury complained of, yet an action for such injury can not be of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite
maintained if the proximate and immediate cause of the injury can be Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail,
traced to the want of ordinary care and caution in the person injured; 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).
subject to this qualification, which has grown up in recent years (having In the Canadian Province of Quebee, which has retained for the most part the
been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the French Civil Law, now embodied in a code following the Code Napoleon, a
contributory negligence of the party injured will not defeat the action if practice in accord with that of France is laid down in many cases collected in the
it be shown that the defendant might, by the exercise of reasonable care annotations to article 1053 of the code edited by Beauchamps, 1904. One of these
and prudence, have avoided the consequences of the injured party's is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90,
negligence. in which the court of Kings bench, otherwise known as the court of appeals, the
There are may cases in the supreme court of Spain in which the defendant was highest authority in the Dominion of Canada on points of French law, held that
exonerated, but when analyzed they prove to have been decided either upon the contributory negligence did not exonerate the defendants whose fault had been
point that he was not negligent or that the negligence of the plaintiff was the the immediate cause of the accident, but entitled him to a reduction of damages.
immediate cause of the casualty or that the accident was due to casus fortuitus. Other similar cases in the provincial courts have been overruled by appellate
Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, tribunals made up of common law judges drawn from other provinces, who have
No. 70), in which a railway employee, standing on a car, was thrown therefrom preferred to impose uniformally throughout the Dominion the English theory of
and killed by the shock following the backing up of the engine. It was held that contributory negligence. Such decisions throw no light upon the doctrines of the
the management of the train and engine being in conformity with proper rules of civil law. Elsewhere we find this practice embodied in legislation; for instance,
the company, showed no fault on its part. section 2 of article 2398 of the Code of Portugal reads as follows:
Of the second class are the decision of the 15th of January, the 19th of February, If in the case of damage there was fault or negligence on the part of the
and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the person injured or in the part of some one else, the indemnification shall
third class the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1), in be reduced in the first case, and in the second case it shall be
which the breaking down of plaintiff's dam by the logs of the defendant impelled appropriated in proportion to such fault or negligence as provided in
against it by the Tajo River, was held due to a freshet as a fortuitous cause. paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly Whatever may prove to be the doctrine finally adopted in Spain or in other
changeable with the accident shall stand his damages in proportion to his fault, countries under the stress and counter stress of novel schemers of legislation, we
but when that proportion is incapable of ascertainment, he shall share the find the theory of damages laid down in the judgment the most consistent with
liability equally with the person principally responsible. The principle of the history and the principals of our law in these Islands and with its logical
proportional damages appears to be also adopted in article 51 of the Swiss Code. development.
Even in the United States in admirality jurisdictions, whose principles are derived Difficulty seems to be apprehended in deciding which acts of the injured party
from the civil law, common fault in cases of collision have been disposed of not shall be considered immediate causes of the accident. The test is simple.
on the ground of contradictor negligence, but on that of equal loss, the fault of Distinction must be between the accident and the injury, between the event
the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; itself, without which there could have been no accident, and those acts of the
97.) victim not entering into it, independent of it, but contributing under review was
The damage of both being added together and the sum equally divided, a decree the displacement of the crosspiece or the failure to replace it. this produced the
is entered in favor of the vessel sustaining the greater loss against the other for event giving occasion for damages — that is, the shinking of the track and the
the excess of her damages over one-half of the aggregate sum. (The Manitoba, sliding of the iron rails. To this event, the act of the plaintiff in walking by the
122 U. S., 97) side of the car did not contribute, although it was an element of the damage
Exceptional practice appears to prevail in maritime law in other jurisdictions. The which came to himself. Had the crosspiece been out of place wholly or partly
Spanish Code of Commerce, article 827, makes each vessel for its own damage thorough his act of omission of duty, the last would have been one of the
when both are the fault; this provision restricted to a single class of the maritime determining causes of the event or accident, for which he would have been
accidents, falls for short of a recognition of the principle of contributory responsible. Where he contributes to the principal occurrence, as one of its
negligence as understood in American Law, with which, indeed, it has little in determining factors, he can not recover. Where, in conjunction with the
common. This is a plain from other articles of the same code; for instance, article occurrence, he contributes only to his own injury, he may recover the amount
829, referring to articles 826, 827, and 828, which provides: "In the cases above that the defendant responsible for the event should pay for such injury, less a
mentioned the civil action of the owner against the person liable for the damage sum deemed a suitable equivalent for his own imprudence.
is reserved, as well as the criminal liability which may appear." Accepting, though with some hesitation, the judgment of the trial court, fixing
The rule of the common law, a hard and fast one, not adjustable with respects of the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500
the faults of the parties, appears to have grown out the original method of trial dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly
by jury, which rendered difficult a nice balancing of responsibilities and which attributable to his negligence, and direct judgment to be entered in favor of the
demanded an inflexible standard as a safeguard against too ready symphaty for plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten
the injured. It was assumed that an exact measure of several concurring faults days hereafter let the case be remanded to the court below for proper action. So
was unattainable. ordered.

The reason why, in cases of mutual concurring negligence, neither party Arellano, C.J. Torres and Mapa, JJ., concur.
can maintain an action against the other, is, not the wrong of the one is
set off against the wrong of the other; it that the law can not measure
how much of the damage suffered is attributable to the plaintiff's own
fault. If he were allowed to recover, it might be that he would obtain Separate Opinions
from the other party compensation for hiss own misconduct. WILLARD, J., dissenting:
(Heil vs.Glanding, 42 Penn. St. Rep., 493, 499.)
The knowledge which the plaintiff had in regard to the condition of the track is
The parties being mutually in fault, there can be no appointment of indicated by his own evidence. He testified, among other things, as follows:
damages. The law has no scales to determine in such cases whose
Q. Now, describe the best you can the character of the track that ran
wrongdoing weighed most in the compound that occasioned the mischief.
from the place where you loaded the irons from the barge up to the
(Railroad vs. Norton, 24 Penn. St. 565, 469.)
point where you unloaded them on the ground.
Experience with jury trials in negligence cases has brought American courts to
A. — Well, it was pretty bad character.
review to relax the vigor of the rule by freely exercising the power of setting
aside verdicts deemed excessive, through the device of granting new trials, unless xxx xxx xxx
reduced damages are stipulated for, amounting to a partial revision of damages Q. And you were familiar with the track before that its construction?
by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater A. Familiar with what?
nicety to the merits of the litigants through the practice of offsetting their Q. Well, you have described it here to the court.
respective responsibilities. In the civil law system the desirable end is not deemed
A. Oh, yes; I knew the condition of the track.
beyond the capacity of its tribunals.
Q. You knew its conditions as you have described it here at the time A. Well, at that conversation as far as I can remember, we were all
you were working around there? walking down the track and I know that McCoy and Mr. Blakes was along
A. Yes, sir. at the time. I remember them two, but we were all walking down the
track in a bunch, but I disremember them.
xxx xxx xxx
xxx xxx xxx
Q. And while operating it from the side it was necessary for you to
step from board to board on the cross-ties which extended out over the Q. Was that the exact language that you used, that you wanted some
stringers? fish plates put on?

A. Yes, sir. A. No, sir: I told him to look at that track. I says get some fish plates.
I says if there was any fish plates we would fix that.
Q. And these were very of irregular shape, were they not?
Q. What did the fish plates have to do with that?
A. They were in pretty bad condition.
A. It would have strengthened that joint.
xxx xxx xxx
Q. Why didn't you put the 8 by 8 which was washed crossways in
Q. And it was not safe to walk along on the outside of these place?
A. That would have been taken the raising of the track and digging out
A. It was safe if the car stayed on the track. We didn't try to hold the along this upright piece and then putting it up again.
load on. We tried to hold the car back, keep it from going too fast,
because we knew the track was in bad condition just here, and going The plaintiff himself testified that he was present with Ellis at the time this
down too fast we could be liable to run off most any time. conversation was had with McKenna. It thus appears that on the morning in
question the plaintiff and McKenna were standing directly over the place where
Q. You knew the track was in bad condition when you got hold? the accident happened later in the day. The accident was caused, as the court
A. Sure, it was in bad condition. below found, by the washing away or displacement of the large 8 by 8 piece of
timber. This track was constructed as all other tracks are, all of it open work,
xxx xxx xxx
with no floor over the ties, and of course see the ground and the entire
Q. And the accident took place at that point where you believed it to construction of the road, including these large 8 by 8 pieces, the long stringers
be so dangerous? placed thereon, the ties placed on these stringers, and the rails placed on the
A. Yes, sir. ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was out
of place.
Q. But you knew it was dangerous?
If the testimony of the plaintiff's witnesses is to be believed, the displacement
A. Why certainly, anybody could see it; but a workingman had to was more markedly apparent even than it would appear from the testimony of the
work in those days or get arrested for a vag here in Manila. defendant's witnesses. According to the plaintiff's witnesses, the water at high
The court below, while it found that the plaintiff knew in a general way of the tide reached the place in question and these 8 by 8 pieces were therefore not laid
bad condition of the track, found that he was not informed of the exact cause of upon the ground but were placed upon posts driven into the ground, the height of
the accident, namely, the washing away of the large crosspiece laid upon the the posts at this particular place being, according to the testimony of the
ground or placed upon the posts as the foundation upon which the stripers rested. plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis
This finding of fact to my mind is plainly and manifestly against the weight of the testified that the reason why they did not put the 8 by 8 back in its place was
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the because that would have required the raising up of the track and digging out
accident he called the attention of McKenna, the foreman, to the defective along this upright piece and then putting it up again.
condition of the track at his precise point where the accident happened. His It conclusively appears from the evidence that the plaintiff, before the accident
testimony in part is as follows: happened, knew the exact condition of the track and was informed and knew of
A. I called Mr. McKenna. I showed him the track and told him I didn't the defect which caused the accident. There was no promise on the part of
think it was safe working, and that if he didn't fix it he was liable to have McKenna to repair the track.
an accident; I told him I thought if he put fish plates on it would it. He Under the circumstances the plaintiff was negligent in placing himself on the side
said, you keep on fishing around here for fish plates and you will be of the car where he knew that he would be injured by the falling of the rails from
fishing for another job the first thing you know." He says, "You see to the car when they reached this point in the track where the two stringers were
much." without any support of their ends. He either should have refused to work at all or
xxx xxx xxx he should have placed himself behind the car, on the other side of it, or in front
of it, drawing it with a rope. He was guilty of contributory negligence and is not
Q. Who else was present at the time you had this conversation with
entitled to recover.
Mr. McKenna?
It is, said however, that contributory negligence on the part of the plaintiff in a by the subsequent promulgation of the railroad police law and the
case like this is no defense under the law in force in these Islands. To this regulations for the execution of the same, the result would be identical,
proposition I can not agree. The liability of the defendant is based in the majority leaving one of the grounds upon which the judgment of acquittal is
opinion upon articles 1101 and 1103 of the Civil Code. based, to wit, that the accident was caused by the imprudence of the
In order to impose such liability upon the defendant, it must appear that its injured party himself, unaffected.
negligence caused the accident. The reason why contradictory negligence on the It appears that the accident in this case took place at a grade crossing where,
part of the plaintiff is a defense in this class of cases is that the negligence of the according to the claim of the plaintiff, it was the duty of the railroad company to
defendant did not alone cause the accident. If nothing but that negligence had maintain husband was injured by a train at this crossing, his negligence
existed, the accident would not have happened and, as I understand it, in every contributing to the injury according to the ruling of the court below. This
case in which contradictory negligence is a defense it is made so because the judgment, then, amounts to a holding that a contributory negligence is a defense
negligence of the plaintiff is the cause of the accident, to this extent, that if the according to the law of Spain. (See also judgment of the 21st of October, 1903,
plaintiff had not been negligent the accident would not have happened, although vol. 96 p. 400, Jurisprudencia Civil.)
the defendant was also negligent. In other words, the negligence of the defendant Although in the Civil Code there is no express provision upon the subject, in the
is not alone sufficient to cause the accident. It requires also the negligence of the Code of Commerce there is found a distinct declaration upon it in reference to
plaintiff. damages caused by collission at sea. Article 827 of the Code of Commerce is as
There is, so far as I know, nothing in the Civil Code relating to contributory follows:
negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum If both vessels may be blamed for the collission, each one shall for liable
sentit, no intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.) for his own damages, and both shall jointly responsible for the loss and
The partidas contain the following provisions: damages suffered to their cargoes.
The just thing is that a man should suffer the damage which comes to That article is an express recognition of the fact that in collision cases
him through his own fault, and that he can not demand reparation contributory negligence is a defense,
therefor from another. (Law 25, tit. 5, partida 3.) I do not think that this court is justified in view of the Roman law, of the
And they even said that when a man received an injury through his own provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of the
acts, the grievance should be against himself and not against another. Code of Commerce, and in the absence of any declaration upon the subject in the
(Law 2, tit. 7, partida 2.) Civil Code, in saying that it was the intention rule announced in the majority
In several cases in the supreme court of Spain the fact has been negligence that opinion, a rule dimetrically opposed to that put in force by the Code of
the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th Commerce.
of June, 1888, and of the 20th of February, 1887, and in the criminal judgments The chief, is not the only, reason stated in the opinion for adopting the rule that
of the 20th of February 1888, the 90th of March, 1876, and the 6th of October, contradictory negligence is not a defense seems to be that such is the holding of
1882. These cases do not throw much light upon the subject. The judgment of the the later French decisions.
7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In As to whether, if any liability existed in this case, it would be necessary in
that case the supreme court of Spain said: accordance with the provisions of the Penal Code, or primary, in accordance with
According to the doctrine expressed in article 1902 of the Civil Code, the provision of the Civil Code, I express no opinion.
fault or negligence is a source of obligation when between such The judgment should, I think, be reversed and the defendant acquitted of the
negligence and the injury thereby caused there exists the relation of complaint.
cause and effect; but in the injury caused should not be the result of
acts or omissions of a third party, the latter has no obligation to repair Carson, J., concurs.
the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of
the injury was the negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that
the death of the deceased was due to his own imprudence, and not
therefore due to the absence of a guard at the grade crossing where the
accident occurred, it seems clear that court in acquitting the railroad
company of the complaint filed by the widow did not violate the
provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad
company to open the grade crossing without a special guard was nullified
FIRST DIVISION Irene Yabut's modus operandi is far from complicated. She would accomplish two
G.R. No. 97626 March 14, 1997 (2) copies of the deposit slip, an original and a duplicate. The original showed the
name of her husband as depositor and his current account number. On the
PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL duplicate copy was written the account number of her husband but the name of
INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA the account holder was left blank. PBC's teller, Azucena Mabayad, would,
PASCUAL, et al., petitioners, however, validate and stamp both the original and the duplicate of these deposit
vs. slips retaining only the original copy despite the lack of information on the
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO duplicate slip. The second copy was kept by Irene Yabut allegedly for record
LIPANA, its President & General Manager, respondents. purposes. After validation, Yabut would then fill up the name of RMC in the space
left blank in the duplicate copy and change the account number written thereon,
HERMOSISIMA, JR., J.: which is that of her husband's, and make it appear to be RMC's account
Challenged in this petition for review is the Decision dated February 28, number, i.e., C.A. No. 53-01980-3. With the daily remittance records also
1991 1 rendered by public respondent Court of Appeals which affirmed the prepared by Ms. Yabut and submitted to private respondent RMC together with
Decision dated November 15, 1985 of the Regional Trial Court, National Capital the validated duplicate slips with the latter's name and account number, she
Judicial Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled made her company believe that all the while the amounts she deposited were
"Rommel's Marketing Corporation, etc. v. Philippine Bank of Commerce, now being credited to its account when, in truth and in fact, they were being
absorbed by Philippine Commercial and Industrial Bank." deposited by her and credited by the petitioner bank in the account of Cotas. This
went on in a span of more than one (1) year without private respondent's
The case stemmed from a complaint filed by the private respondent Rommel's knowledge.
Marketing Corporation (RMC for brevity), represented by its President and General
Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce Upon discovery of the loss of its funds, RMC demanded from petitioner bank the
(PBC for brevity), now absorbed by the Philippine Commercial International Bank, return of its money, but as its demand went unheeded, it filed a collection suit
the sum of P304,979.74 representing various deposits it had made in its current before the Regional Trial Court of Pasig, Branch 160. The trial court found
account with said bank but which were not credited to its account, and were petitioner bank negligent and ruled as follows:
instead deposited to the account of one Bienvenido Cotas, allegedly due to the WHEREFORE, judgment is hereby rendered sentencing defendant
gross and inexcusable negligence of the petitioner bank. Philippine Bank of Commerce, now absorbed by defendant
RMC maintained two (2) separate current accounts, Current Account Nos. 53- Philippine Commercial & Industrial Bank, and defendant
01980-3 and 53-01748-7, with the Pasig Branch of PBC in connection with its Azucena Mabayad to pay the plaintiff, jointly and severally, and
business of selling appliances. without prejudice to any criminal action which may be
instituted if found warranted:
In the ordinary and usual course of banking operations, current account deposits
are accepted by the bank on the basis of deposit slips prepared and signed by the 1. The sum of P304,979.72, representing plaintiffs lost deposit,
depositor, or the latter's agent or representative, who indicates therein the plus interest thereon at the legal rate from the filing of the
current account number to which the deposit is to be credited, the name of the complaint;
depositor or current account holder, the date of the deposit, and the amount of 2. A sum equivalent to 14% thereof, as exemplary damages;
the deposit either in cash or checks. The deposit slip has an upper portion or stub, 3. A sum equivalent to 25% of the total amount due, as and for
which is detached and given to the depositor or his agent; the lower portion is attorney's fees; and
retained by the bank. In some instances, however, the deposit slips are prepared
in duplicate by the depositor. The original of the deposit slip is retained by the 4. Costs.
bank, while the duplicate copy is returned or given to the depositor. Defendants' counterclaim is hereby dismissed for lack of merit. 2
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have On appeal, the appellate court affirmed the foregoing decision with
entrusted RMC funds in the form of cash totalling P304,979.74 to his secretary, modifications, viz:
Irene Yabut, for the purpose of depositing said funds in the current accounts of
WHEREFORE, the decision appealed from herein is MODIFIED in
RMC with PBC. It turned out, however, that these deposits, on all occasions, were
the sense that the awards of exemplary damages and attorney's
not credited to RMC's account but were instead deposited to Account No. 53-
fees specified therein are eliminated and instead, appellants
01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account
are ordered to pay plaintiff, in addition to the principal sum of
with the same bank. During this period, petitioner bank had, however, been
P304,979.74 representing plaintiff's lost deposit plus legal
regularly furnishing private respondent with monthly statements showing its
interest thereon from the filing of the complaint, P25,000.00
current accounts balances. Unfortunately, it had never been the practice of
attorney's fees and costs in the lower court as well as in this
Romeo Lipana to check these monthly statements of account reposing complete
Court. 3
trust and confidence on petitioner bank.
Hence, this petition anchored on the following grounds: must respond; and (c) the connection of cause and effect between the fault or
1) The proximate cause of the loss is the negligence of negligence of the defendant and the damages incurred by the plaintiff. 7
respondent Rommel Marketing Corporation and Romeo Lipana in In the case at bench, there is no dispute as to the damage suffered by the private
entrusting cash to a dishonest employee. respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in
2) The failure of respondent Rommel Marketing Corporation to ascribing fault or negligence which caused the damage where the parties point to
cross-check the bank's statements of account with its own each other as the culprit.
records during the entire period of more than one (1) year is the Negligence is the omission to do something which a reasonable man, guided by
proximate cause of the commission of subsequent frauds and those considerations which ordinarily regulate the conduct of human affairs,
misappropriation committed by Ms. Irene Yabut. would do, or the doing of something which a prudent and reasonable man would
3) The duplicate copies of the deposit slips presented by do. The seventy-eight (78)-year-old, yet still relevant, case of Picart
respondent Rommel Marketing Corporation are falsified and are v. Smith, 8 provides the test by which to determine the existence of negligence in
not proof that the amounts appearing thereon were deposited to a particular case which may be stated as follows: Did the defendant in doing the
respondent Rommel Marketing Corporation's account with the alleged negligent act use that reasonable care and caution which an ordinarily
bank, 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
4) The duplicate copies of the deposit slips were used by Ms. by the imaginary conduct of the discreet paterfamilias of the Roman law. The
Irene Yabut to cover up her fraudulent acts against respondent existence of negligence in a given case is not determined by reference to the
Rommel Marketing Corporation, and not as records of deposits personal judgment of the actor in the situation before him. The law considers
she made with the bank. 4 what would be reckless, blameworthy, or negligent in the man of ordinary
The petition has no merit. intelligence and prudence and determines liability by that.
Simply put, the main issue posited before us is: What is the proximate cause of Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad,
the loss, to the tune of P304,979.74, suffered by the private respondent RMC — was negligent in validating, officially stamping and signing all the deposit slips
petitioner bank's negligence or that of private respondent's? prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate
copy was not completely accomplished contrary to the self-imposed procedure of
Petitioners submit that the proximate cause of the loss is the negligence of
the bank with respect to the proper validation of deposit slips, original or
respondent RMC and Romeo Lipana in entrusting cash to a dishonest employee in
duplicate, as testified to by Ms. Mabayad herself, thus:
the person of Ms. Irene Yabut. 5 According to them, it was impossible for the bank
to know that the money deposited by Ms. Irene Yabut belong to RMC; neither was Q: Now, as teller of PCIB, Pasig Branch, will you please tell us
the bank forewarned by RMC that Yabut will be depositing cash to its account. Mrs. Mabayad your important duties and functions?
Thus, it was impossible for the bank to know the fraudulent design of Yabut A: I accept current and savings deposits from depositors and
considering that her husband, Bienvenido Cotas, also maintained an account with encashments.
the bank. For the bank to inquire into the ownership of the cash deposited by Ms.
Irene Yabut would be irregular. Otherwise stated, it was RMC's negligence in Q: Now in the handling of current account deposits of bank
entrusting cash to a dishonest employee which provided Ms. Irene Yabut the clients, could you tell us the procedure you follow?
opportunity to defraud RMC. 6 A: The client or depositor or the authorized representative
Private respondent, on the other hand, maintains that the proximate cause of the prepares a deposit slip by filling up the deposit slip with the
loss was the negligent act of the bank, thru its teller Ms. Azucena Mabayad, in name, the account number, the date, the cash breakdown, if it
validating the deposit slips, both original and duplicate, presented by Ms. Yabut is deposited for cash, and the check number, the amount and
to Ms. Mabayad, notwithstanding the fact that one of the deposit slips was not then he signs the deposit slip.
completely accomplished. Q: Now, how many deposit slips do you normally require in
We sustain the private respondent. accomplishing current account deposit, Mrs. Mabayad?

Our law on quasi-delicts states: A: The bank requires only one copy of the deposit although
some of our clients prepare the deposit slip in duplicate.
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for Q: Now in accomplishing current account deposits from your
the damage done. Such fault or negligence, if there is no pre- clients, what do you issue to the depositor to evidence the
existing contractual relation between the parties, is called deposit made?
a quasi-delict and is governed by the provisions of this Chapter. A: We issue or we give to the clients the depositor's stub as a
There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; receipt of the deposit.
(b) fault or negligence of the defendant, or some other person for whose acts he Q: And who prepares the deposit slip?
A: The depositor or the authorized representative sir? A: No it was not reported.
Q: Where does the depositor's stub comes (sic) from Mrs. Q: You did not know that any one in the bank tellers or cashiers
Mabayad, is it with the deposit slip? validated the blank deposit slip?
A: The depositor's stub is connected with the deposit slip or the A: I am not aware of that.
bank's copy. In a deposit slip, the upper portion is the Q: It is only now that you are aware of that?
depositor's stub and the lower portion is the bank's copy, and
you can detach the bank's copy from the depositor's stub by A: Yes, sir. 13
tearing it sir. Prescinding from the above, public respondent Court of Appeals aptly observed:
Q: Now what do you do upon presentment of the deposit slip by xxx xxx xxx
the depositor or the depositor's authorized representative?
It was in fact only when he testified in this case in February,
A: We see to it that the deposit slip 9 is properly accomplished 1983, or after the lapse of more than seven (7) years counted
and then we count the money and then we tally it with the from the period when the funds in question were deposited in
deposit slip sir. plaintiff's accounts (May, 1975 to July, 1976) that bank manager
Q: Now is the depositor's stub which you issued to your clients Bonifacio admittedly became aware of the practice of his teller
validated? Mabayad of validating blank deposit slips. Undoubtedly, this is
gross, wanton, and inexcusable negligence in the appellant
A: Yes, sir. 10 [Emphasis ours] bank's supervision of its employees. 14
Clearly, Ms. Mabayad failed to observe this very important procedure. It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the
The fact that the duplicate slip was not compulsorily required by the petitioner bank in the selection and supervision of its bank teller, which was the
bank in accepting deposits should not relieve the petitioner bank of proximate cause of the loss suffered by the private respondent, and not the
responsibility. The odd circumstance alone that such duplicate copy latter's act of entrusting cash to a dishonest employee, as insisted by the
lacked one vital information — that of the name of the account holder — petitioners.
should have already put Ms. Mabayad on guard. Rather than readily
validating the incomplete duplicate copy, she should have proceeded Proximate cause is determined on the facts of each case upon mixed
more cautiously by being more probing as to the true reason why the considerations of logic, common sense, policy and precedent. 15 Vda. de Bataclan
name of the account holder in the duplicate slip was left blank while v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v. Court of
that in the original was filled up. She should not have been so naive in Appeals, 17 defines proximate cause as "that cause, which, in natural and
accepting hook, line and sinker the too shallow excuse of Ms. Irene Yabut continuous sequence, unbroken by any efficient intervening cause, produces the
to the effect that since the duplicate copy was only for her personal injury, and without which the result would not have occurred. . . ." In this case,
record, she would simply fill up the blank space later on. 11 A "reasonable absent the act of Ms. Mabayad in negligently validating the incomplete duplicate
man of ordinary prudence" 12would not have given credence to such copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to
explanation and would have insisted that the space left blank be filled up perpetrate her fraudulent scheme with impunity. Apropos, once again, is the
as a condition for validation. Unfortunately, this was not how bank teller pronouncement made by the respondent appellate court, to wit:
Mabayad proceeded thus resulting in huge losses to the private . . . . Even if Yabut had the fraudulent intention to
respondent. misappropriate the funds entrusted to her by plaintiff, she
Negligence here lies not only on the part of Ms. Mabayad but also on the part of would not have been able to deposit those funds in her
the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. This husband's current account, and then make plaintiff believe that
was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the it was in the latter's accounts wherein she had deposited them,
Pasig Branch of the petitioner bank and now its Vice-President, to the effect that, had it not been for bank teller Mabayad's aforesaid gross and
while he ordered the investigation of the incident, he never came to know that reckless negligence. The latter's negligence was thus the
blank deposit slips were validated in total disregard of the bank's validation proximate, immediate and efficient cause that brought about
procedures, viz: the loss claimed by plaintiff in this case, and the failure of
plaintiff to discover the same soon enough by failing to
Q: Did he ever tell you that one of your cashiers affixed the scrutinize the monthly statements of account being sent to it by
stamp mark of the bank on the deposit slips and they validated appellant bank could not have prevented the fraud and
the same with the machine, the fact that those deposit slips misappropriation which Irene Yabut had already completed
were unfilled up, is there any report similar to that? when she deposited plaintiff's money to the account of her
A: No, it was not the cashier but the teller. husband instead of to the latter's accounts. 18
Q: The teller validated the blank deposit slip?
Furthermore, under the doctrine of "last clear chance" (also referred to, at times Petitioners nevertheless aver that the failure of respondent RMC to cross-check
as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the bank's statements of account with its own records during the entire period of
the culpable party. This doctrine, in essence, states that where both parties are more than one (1) year is the proximate cause of the commission of subsequent
negligent, but the negligent act of one is appreciably later in time than that of frauds and misappropriation committed by Ms. Irene Yabut.
the other, or when it is impossible to determine whose fault or negligence should We do not agree.
be attributed to the incident, the one who had the last clear opportunity to avoid
the impending harm and failed to do so is chargeable with the consequences While it is true that had private respondent checked the monthly statements of
thereof. 19Stated differently, the rule would also mean that an antecedent account sent by the petitioner bank to RMC, the latter would have discovered the
negligence of a person does not preclude the recovery of damages for the loss early on, such cannot be used by the petitioners to escape liability. This
supervening negligence of, or bar a defense against liability sought by another, if omission on the part of the private respondent does not change the fact that were
the latter, who had the last fair chance, could have avoided the impending harm it not for the wanton and reckless negligence of the petitioners' employee in
by the exercise of due diligence. 20Here, assuming that private respondent RMC validating the incomplete duplicate deposit slips presented by Ms. Irene Yabut,
was negligent in entrusting cash to a dishonest employee, thus providing the the loss would not have occurred. Considering, however, that the fraud was
latter with the opportunity to defraud the company, as advanced by the committed in a span of more than one (1) year covering various deposits, common
petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had human experience dictates that the same would not have been possible without
the last clear opportunity to avert the injury incurred by its client, simply by any form of collusion between Ms. Yabut and bank teller Mabayad. Ms. Mabayad
faithfully observing their self-imposed validation procedure. was negligent in the performance of her duties as bank teller nonetheless. Thus,
the petitioners are entitled to claim reimbursement from her for whatever they
At this juncture, it is worth to discuss the degree of diligence ought to be shall be ordered to pay in this case.
exercised by banks in dealing with their clients.
The foregoing notwithstanding, it cannot be denied that, indeed, private
The New Civil Code provides: respondent was likewise negligent in not checking its monthly statements of
Art. 1173. The fault or negligence of the obligor consists in the account. Had it done so, the company would have been alerted to the series of
omission of that diligence which is required by the nature of the frauds being committed against RMC by its secretary. The damage would
obligation and corresponds with the circumstances of the definitely not have ballooned to such an amount if only RMC, particularly Romeo
persons, of the time and of the place. When negligence shows Lipana, had exercised even a little vigilance in their financial affairs. This
bad faith, the provisions of articles 1171 and 2201, paragraph 2, omission by RMC amounts to contributory negligence which shall mitigate the
shall apply. damages that may be awarded to the private respondent 23 under Article 2179 of
If the law or contract does not state the diligence which is to be the New Civil Code, to wit:
observed in the performance, that which is expected of a good . . . When the plaintiff's own negligence was the immediate and
father of a family shall be required. (1104a) proximate cause of his injury, he cannot recover damages. But if
In the case of banks, however, the degree of diligence required is more than that his negligence was only contributory, the immediate and
of a good father of a family. Considering the fiduciary nature of their relationship proximate cause of the injury being the defendant's lack of due
with their depositors, banks are duty bound to treat the accounts of their clients care, the plaintiff may recover damages, but the courts shall
with the highest degree of care. 21 mitigate the damages to be awarded.

As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every In view of this, we believe that the demands of substantial justice are
case, the depositor expects the bank to treat his account with the utmost fidelity, satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
whether such account consists only of a few hundred pesos or of millions. The damage awarded by the respondent appellate court, except the award of
bank must record every single transaction accurately, down to the last centavo, P25,000.00 attorney's fees, shall be borne by private respondent RMC;
and as promptly as possible. This has to be done if the account is to reflect at any only the balance of 60% needs to be paid by the petitioners. The award
given time the amount of money the depositor can dispose as he sees fit, of attorney's fees shall be borne exclusively by the petitioners.
confident that the bank will deliver it as and to whomever he directs. A blunder WHEREFORE, the decision of the respondent Court of Appeals is modified by
on the part of the bank, such as the failure to duly credit him his deposits as soon reducing the amount of actual damages private respondent is entitled to by 40%.
as they are made, can cause the depositor not a little embarrassment if not Petitioners may recover from Ms. Azucena Mabayad the amount they would pay
financial loss and perhaps even civil and criminal litigation. the private respondent. Private respondent shall have recourse against Ms. Irene
The point is that as a business affected with public interest and because of the Yabut. In all other respects, the appellate court's decision is AFFIRMED.
nature of its functions, the bank is under obligation to treat the accounts of its Proportionate costs.
depositors with meticulous care, always having in mind the fiduciary nature of SO ORDERED.
their relationship. In the case before us, it is apparent that the petitioner bank
was remiss in that duty and violated that relationship. Bellosillo, Vitug and Kapunan, JJ., concur.
In the earlier days before the age of full computerization, a bank normally
maintained a ledger which served as a repository of accounts to which debits and
Separate Opinions credits resulting from transactions with the bank were posted from books of
PADILLA, J., dissenting: original entry. Thus, it was only after the transaction was posted in the ledger
I regret that I cannot join the majority in ruling that the proximate cause of the that the teller proceeded to machine validate the deposit slip and then affix his
damage suffered by Rommel's Marketing Corporation (RMC) is mainly "the wanton signature or initial to serve as proof of the completed transaction.
and reckless negligence of the petitioner's employee in validating the incomplete It should be noted that the teller validated the depositor's stub in the upper
duplicate deposit slips presented by Ms. Irene Yabut" (Decision, p. 15). Moreover, portion and the bank copy on the lower portion on both the original and duplicate
I find it difficult to agree with the ruling that "petitioners are entitled to claim copies of the deposit slips presented by Yabut. The teller, however, detached the
reimbursement from her (the bank teller) for whatever they shall be ordered to validated depositor's stub on the original deposit slip and allowed Yabut to retain
pay in this case." the whole validated duplicate deposit slip that bore the same account number as
It seems that an innocent bank teller is being unduly burdened with what should the original deposit slip, but with the account name purposely left blank by
fall on Ms. Irene Yabut, RMC's own employee, who should have been charged with Yabut, on the assumption that it would serve no other purpose but for a personal
estafa or estafa through falsification of private document. Interestingly, the record to complement the original validated depositor's stub.
records are silent on whether RMC had ever filed any criminal case against Ms. Thus, when Yabut wrote the name of RMC on the blank account name on the
Irene Yabut, aside from the fact that she does not appear to have been impleaded validated duplicate copy of the deposit slip, tampered with its account number,
even as a party defendant in any civil case for damages. Why is RMC insulating Ms. and superimposed RMC's account number, said act only served to cover-up the loss
Irene Yabut from liability when in fact she orchestrated the entire fraud on RMC, already caused by her to RMC, or after the deposit slip was validated by the teller
her employer? in favor of Yabut's husband. Stated otherwise, when there is a clear evidence of
To set the record straight, it is not completely accurate to state that from 5 May tampering with any of the material entries in a deposit slip, the genuineness and
1975 to 16 July 1976, Miss Irene Yabut had transacted with PCIB (then PBC) due execution of the document become an issue in resolving whether or not the
through only one teller in the person of Azucena Mabayad. In fact, when RMC filed transaction had been fair and regular and whether the ordinary course of business
a complaint for estafa before the Office of the Provincial Fiscal of Rizal, it had been followed by the bank.
indicted all the tellers of PCIB in the branch who were accused of conspiracy to It is logical, therefore, to conclude that the legal or proximate cause of RMC's loss
defraud RMC of its current account deposits. (See Annex B, Rollo p. 22 and 47). was when Yabut, its employee, deposited the money of RMC in her husband's
Even private respondent RMC, in its Comment, maintains that "when the name and account number instead of that of RMC, the rightful owner of such
petitioner's tellers" allowed Irene Yabut to carry out her modus deposited funds. Precisely, it was the criminal act of Yabut that directly caused
operandi undetected over a period of one year, "their negligence cannot but be damage to RMC, her employer, not the validation of the deposit slip by the teller
gross." (Rollo, p. 55; see also Rollo pp. 58 to 59). This rules out the possibility as the deposit slip was made out by Yabut in her husband's name and to his
that there may have been some form of collusion between Yabut and bank teller account.
Mabayad. Mabayad was just unfortunate that private respondent's documentary Even if the bank teller had required Yabut to completely fill up the duplicate
evidence showed that she was the attending teller in the bulk of Yabut's deposit slip, the original deposit slip would nonetheless still be validated under
transactions with the bank. the account of Yabut's husband. In fine, the damage had already been done to
Going back to Yabut's modus operandi, it is not disputed that each time Yabut RMC when Yabut deposited its funds in the name and account number of her
would transact business with PBC's tellers, she would accomplish two (2) copies of husband with petitioner bank. It is then entirely left to speculation what Yabut
the current account deposit slip. PBC's deposit slip, as issued in 1975, had two would have done afterwards — like tampering both the account number and the
parts. The upper part was called the depositor's stub and the lower part was account name on the stub of the original deposit slip and on the duplicate copy —
called the bank copy. Both parts were detachable from each other. The deposit in order to cover up her crime.
slip was prepared and signed by the depositor or his representative, who Under the circumstances in this case, there was no way for PBC's bank tellers to
indicated therein the current account number to which the deposit was to be reasonably foresee that Yabut might or would use the duplicate deposit slip to
credited, the name of the depositor or current account holder, the date of the cover up her crime. In the first place, the bank tellers were absolutely unaware
deposit, and the amount of the deposit either in cash or in checks. (Rollo, p. 137) that a crime had already been consummated by Yabut when her transaction by
Since Yabut deposited money in cash, the usual bank procedure then was for the her sole doing was posted in the ledger and validated by the teller in favor of her
teller to count whether the cash deposit tallied with the amount written down by husband's account even if the funds deposited belonged to RMC.
the depositor in the deposit slip. If it did, then the teller proceeded to verify The teller(s) in this case were not in any way proven to be parties to the crime
whether the current account number matched with the current account name as either as accessories or accomplices. Nor could it be said that the act of posting
written in the deposit slip. and validation was in itself a negligent act because the teller(s) simply had no
choice but to accept and validate the deposit as written in the original deposit
slip under the account number and name of Yabut's husband. Hence, the act of
validating the duplicate copy was not the proximate cause of RMC's injury but 13 Rollo, p. 43, citing TSN, 9 February 1983, pp. 10-12.
merely a remote cause which an independent cause or agency merely took 14 Decision, p. 8; Rollo, p. 44.
advantage of to accomplish something which was not the probable or natural 15 Supra., note 12 at 90.
effect thereof. That explains why Yabut still had to tamper with the account 16 102 Phil. 181, 186 [1957].
number of the duplicate deposit slip after filling in the name of RMC in the blank 17 216 SCRA 51, 75 [1992].
space. 18 Decision, pp. 6-7; Rollo, pp. 42-43.
Coming now to the doctrine of "last clear chance," it is my considered view that 19 LBC Air Cargo, Inc. v. Court of Appeals, 241 SCRA 619, 624
the doctrine assumes that the negligence of the defendant was subsequent to the [1995], citing Picart v. Smith, supra.
negligence of the plaintiff and the same must be the proximate cause of the 20 Ibid., citing Pantranco North Express, Inc. v. Baesa, 179 SCRA
injury. In short, there must be a last and a clear chance, not a 384; Glan People's Lumber and Hardware v. Intermediate
last possible chance, to avoid the accident or injury. It must have been a chance Appellate Court, 173 SCRA 464.
as would have enabled a reasonably prudent man in like position to have acted 21 Metropolitan Bank and Trust Company v. Court of Appeals,
effectively to avoid the injury and the resulting damage to himself. 237 SCRA 761, 767 [1994]; Bank of the Phil. Islands v. Court of
Appeals, supra., note 16 at 71.
In the case at bar, the bank was not remiss in its duty of sending monthly bank 22 183 SCRA 360, 367 [1990], cited in Bank of the Phil. Islands v.
statements to private respondent RMC so that any error or discrepancy in the Intermediate Appellate Court, 206 SCRA 408, 412-413 [1992];
entries therein could be brought to the bank's attention at the earliest City Trust Banking Corp. v. Intermediate Appellate Court, 232
opportunity. Private respondent failed to examine these bank statements not SCRA 559, 564 [1994]; Metropolitan Bank and Trust Company v.
because it was prevented by some cause in not doing so, but because it was CA, supra.
purposely negligent as it admitted that it does not normally check bank 23 Phoenix Construction, Inc. v. Intermediate Appellate Court,
statements given by banks. 148 SCRA 353, 368 [1987]; Del Prado v. Manila Electric Co., 52
It was private respondent who had the last and clear chance to prevent any Phil. 900, 906 [1929]; Rakes v. Atlantic, Gulf and Pacific Co., 7
further misappropriation by Yabut had it only reviewed the status of its current Phil. 359, 375 [1907].
accounts on the bank statements sent to it monthly or regularly. Since a sizable
amount of cash was entrusted to Yabut, private respondent should, at least, have
taken ordinary care of its concerns, as what the law presumes. Its negligence,
therefore, is not contributory but the immediate and proximate cause of its
I vote to grant the petition.

1 Rollo, pp. 37-46.
2 Rollo, pp. 40-41.
3 Decision. pp. 9-10; Rollo, pp. 45-46.
4 Petition, pp. 13-14; Rollo, pp. 20-21.
5 Petition, p. 14; Rollo, p. 21.
6 Reply, p. 13; Rollo, p. 82.
7 Andamo v. Intermediate Appellate Court, 191 SCRA 195, 201
[1990], citing Taylor v. Manila Electric Company, 16 Phil. 8
[1910]; Vergara v. Court of Appeals, 154 SCRA 564 [1987].
8 37 Phil. 809, 813 [1918], reiterated in Bank of the Phil. Islands
v. Court of Appeals, 216 SCRA 51, 72-73 [1992]; Layugan v.
Intermediate Appellate Court, 167 SCRA 363, 373 [1988]; Gan v.
Court of Appeals, 165 SCRA 378, 382 [1988]; see also Leano v.
Domingo, 198 SCRA 800, 804 [1991].
9 Original or duplicate.
10 Rollo, pp. 104-105. citing TSN, 14 August 1981, pp. 6-12.
11 Rollo, p. 56, citing TSN, 14 August 1981, pp. 42-47.
12 Sangco, Torts and Damages, Vol. I, 1993 ed., p.
8, citing Prosser, Law on Torts, 3rd Edition, 1964, pp. 153-154.
FIRST DIVISION WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
G.R. No. L-45637 May 31, 1985 against the defendants and the latter are hereby ordered, jointly and
severally, to pay the plaintiff the sum of P750.00 as reimbursement for
ROBERTO JUNTILLA, petitioner, the lost Omega wrist watch, the sum of P246.64 as unrealized salary of
vs. the plaintiff from his employer, the further sum of P100.00 for the
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents. doctor's fees and medicine, an additional sum of P300.00 for attorney's
fees and the costs.
Valentin A. Zozobrado for petitioner. The respondents appealed to the Court of First Instance of Cebu, Branch XIV.
Ruperto N. Alfarara for respondents.
Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon
GUTIERREZ, JR., J.: a finding that the accident in question was due to a fortuitous event. The
dispositive portion of the decision reads:
This is a petition for review, on questions of law, of the decision of the Court of
First Instance of Cebu which reversed the decision of the City Court of Cebu and WHEREFORE, judgment is hereby rendered exonerating the defendants
exonerated the respondents from any liability arising from a vehicular accident. from any liability to the plaintiff without pronouncement as to costs.
The background facts which led to the filing of a complaint for breach of contract A motion for reconsideration was denied by the Court of First Instance.
and damages against the respondents are summarized by the Court of First The petitioner raises the following alleged errors committed by the Court of First
Instance of Cebu as follows: Instance of Cebu on appeal—
The facts established after trial show that the plaintiff was a passenger a. The Honorable Court below committed grave abuse of discretion in
of the public utility jeepney bearing plate No. PUJ-71-7 on the course of failing to take cognizance of the fact that defendants and/or their
the trip from Danao City to Cebu City. The jeepney was driven by employee failed to exercise "utmost and/or extraordinary diligence"
defendant Berfol Camoro. It was registered under the franchise of required of common carriers contemplated under Art. 1755 of the Civil
defendant Clemente Fontanar but was actually owned by defendant Code of the Philippines.
Fernando Banzon. When the jeepney reached Mandaue City, the right
b. The Honorable Court below committed grave abuse of discretion by
rear tire exploded causing the vehicle to turn turtle. In the process, the
deciding the case contrary to the doctrine laid down by the Honorable
plaintiff who was sitting at the front seat was thrown out of the vehicle.
Supreme Court in the case of Necesito et al. v. Paras, et al.
Upon landing on the ground, the plaintiff momentarily lost
consciousness. When he came to his senses, he found that he had a We find the petition impressed with merit.
lacerated wound on his right palm. Aside from this, he suffered injuries The City Court and the Court of First Instance of Cebu found that the right rear
on his left arm, right thigh and on his back. (Exh. "D"). Because of his tire of the passenger jeepney in which the petitioner was riding blew up causing
shock and injuries, he went back to Danao City but on the way, he the vehicle to fall on its side. The petitioner questions the conclusion of the
discovered that his "Omega" wrist watch was lost. Upon his arrival in respondent court drawn from this finding of fact.
Danao City, he immediately entered the Danao City Hospital to attend to
his injuries, and also requested his father-in-law to proceed immediately The Court of First Instance of Cebu erred when it absolved the carrier from any
to the place of the accident and look for the watch. In spite of the liability upon a finding that the tire blow out is a fortuitous event. The Court of
efforts of his father-in-law, the wrist watch, which he bought for P First Instance of Cebu ruled that:
852.70 (Exh. "B") could no longer be found. After reviewing the records of the case, this Court finds that the
xxx xxx xxx accident in question was due to a fortuitous event. A tire blow-out, such
as what happened in the case at bar, is an inevitable accident that
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract exempts the carrier from liability, there being absence of a showing that
with damages before the City Court of Cebu City, Branch I against Clemente there was misconduct or negligence on the part of the operator in the
Fontanar, Fernando Banzon and Berfol Camoro. operation and maintenance of the vehicle involved. The fact that the
The respondents filed their answer, alleging inter alia that the accident that right rear tire exploded, despite being brand new, constitutes a clear
caused losses to the petitioner was beyond the control of the respondents taking case of caso fortuito which can be a proper basis for exonerating the
into account that the tire that exploded was newly bought and was only slightly defendants from liability. ...
used at the time it blew up. The Court of First Instance relied on the ruling of the Court of Appeals
After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29,
judgment in favor of the petitioner and against the respondents. The dispositive 1954, where the Court of Appeals ruled that:
portion of the decision reads:
A tire blow-out does not constitute negligence unless the tire was aggravation of the injury resulting to the creditor. (5 Encyclopedia
already old and should not have been used at all. Indeed, this would be a Juridica Espanola, 309.)
clear case of fortuitous event. In the case at bar, the cause of the unforeseen and unexpected occurrence was
The foregoing conclusions of the Court of First Instance of Cebu are based on a not independent of the human will. The accident was caused either through the
misapprehension of overall facts from which a conclusion should be drawn. The negligence of the driver or because of mechanical defects in the tire. Common
reliance of the Court of First Instance on the Rodriguez case is not in order. In La carriers should teach their drivers not to overload their vehicles, not to exceed
Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that: safe and legal speed limits, and to know the correct measures to take when a tire
Petitioner maintains that a tire blow-out is a fortuitous event and gives blows up thus insuring the safety of passengers at all times. Relative to the
rise to no liability for negligence, citing the rulings of the Court of contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al.
Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, (104 Phil. 75), that:
December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, ... The preponderance of authority is in favor of the doctrine that a
1958. These rulings, however, not only are not binding on this Court but passenger is entitled to recover damages from a carrier for an injury
were based on considerations quite different from those that obtain in resulting from a defect in an appliance purchased from a manufacturer,
the case at bar. The appellate court there made no findings of any whenever it appears that the defect would have been discovered by the
specific acts of negligence on the part of the defendants and confined carrier if it had exercised the degree of care which under the
itself to the question of whether or not a tire blow-out, by itself alone circumstances was incumbent upon it, with regard to inspection and
and without a showing as to the causative factors, would generate application of the necessary tests. For the purposes of this doctrine, the
liability. ... manufacturer is considered as being in law the agent or servant of the
In the case at bar, there are specific acts of negligence on the part of the carrier, as far as regards the work of constructing the appliance.
respondents. The records show that the passenger jeepney turned turtle and According to this theory, the good repute of the manufacturer will not
jumped into a ditch immediately after its right rear tire exploded. The evidence relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also
shows that the passenger jeepney was running at a very fast speed before the Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co.
accident. We agree with the observation of the petitioner that a public utility v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann.
jeep running at a regular and safe speed will not jump into a ditch when its right Cas. 1916E 929).
rear tire blows up. There is also evidence to show that the passenger jeepney was The rationale of the carrier's liability is the fact that the passenger has
overloaded at the time of the accident. The petitioner stated that there were neither choice nor control over the carrier in the selection and use of the
three (3) passengers in the front seat and fourteen (14) passengers in the rear. equipment and appliances in use by the carrier. Having no privity
While it may be true that the tire that blew-up was still good because the grooves whatever with the manufacturer or vendor of the defective equipment,
of the tire were still visible, this fact alone does not make the explosion of the the passenger has no remedy against him, while the carrier usually has. It
tire a fortuitous event. No evidence was presented to show that the accident was is but logical, therefore, that the carrier, while not an insurer of the
due to adverse road conditions or that precautions were taken by the jeepney safety of his passengers, should nevertheless be held to answer for the
driver to compensate for any conditions liable to cause accidents. The sudden flaws of his equipment if such flaws were at all discoverable. ...
blowing-up, therefore, could have been caused by too much air pressure injected It is sufficient to reiterate that the source of a common carrier's legal liability is
into the tire coupled by the fact that the jeepney was overloaded and speeding at the contract of carriage, and by entering into the said contract, it binds itself to
the time of the accident. carry the passengers safely as far as human care and foresight can provide, using
In Lasam v. Smith (45 Phil. 657), we laid down the following essential the utmost diligence of a very cautious person, with a due regard for all the
characteristics of caso fortuito: circumstances. The records show that this obligation was not met by the
xxx xxx xxx
The respondents likewise argue that the petitioner cannot recover any amount for
... In a legal sense and, consequently, also in relation to contracts, failure to prove such damages during the trial. The respondents submit that if the
a caso fortuito presents the following essential characteristics: (1) The petitioner was really injured, why was he treated in Danao City and not in
cause of the unforeseen and unexpected occurrence, or of the failure of Mandaue City where the accident took place. The respondents argue that the
the debtor to comply with his obligation, must be independent of the doctor who issued the medical certificate was not presented during the trial, and
human will. (2) It must be impossible to foresee the event which hence not cross-examined. The respondents also claim that the petitioner was not
constitutes the caso fortuito, or if it can be foreseen, it must be wearing any wrist watch during the accident.
impossible to avoid. (3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner. And It should be noted that the City Court of Cebu found that the petitioner had a
(4) the obligor (debtor) must be free from any participation in the lacerated wound on his right palm aside from injuries on his left arm, right thigh
and on his back, and that on his way back to Danao City, he discovered that his
"Omega" wrist watch was lost. These are findings of facts of the City Court of
Cebu which we find no reason to disturb. More so when we consider the fact that
the Court of First Instance of Cebu impliedly concurred in these matters when it
confined itself to the question of whether or not the tire blow out was a
fortuitous event.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV
appealed from is hereby REVERSED and SET ASIDE, and the decision of the City
Court of Cebu, Branch I is REINSTATED, with the modification that the damages
shall earn interest at 12% per annum and the attorney's fees are increased to SIX
HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and
Alampay, JJ., concur.
EN BANC Tourism Authority the same day 3 and by its Corporate Auditor on July 27,
G.R. No. 71871 November 6, 1989 1983. 4 The Regional Director, National Capital Region, of the Commission on
Audit, made a similar recommendation on January 17, 1984, and also absolved
TEODORO M. HERNANDEZ, petitioner, Hernandez of negligence. 5 On June 29, 1984, however, the Commission on Audit,
vs. through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request,
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent. observing inter alia:
In the instant case, the loss of the P10,175.00 under the accountability
Al-Fred O. Concepcion for petitioner. of Mr. Hernandez can be attributed to his negligence because had he
brought the cash proceeds of the checks (replenishment fund) to the
CRUZ, J.: Beach Park in Ternate, Cavite, immediately after encashment for
It was one of those prosaic decisions not requiring deep thought or long safekeeping in his office, which is the normal procedure in the handling
deliberation. The petitioner arrived at it almost as a matter of course, applying of public funds, the loss of said cash thru robbery could have been
what he believed then to be common sense. Little did he realize until later that it aborted. 6
would cause him much anguish, even endanger his life, and ultimately lead to this In the petition at bar, Hernandez claims that the respondent Commission on Audit
litigation. But such are the quirks of fate. acted with grave abuse of discretion in denying him relief and in holding him
At the time of the incident in question, Teodoro M. Hernandez was the officer-in- negligent for the loss of the stolen money. He avers he has done only what any
charge and special disbursing officer of the Ternate Beach Project of the reasonable man would have done and should not be held accountable for a
Philippine Tourism Authority in Cavite. As such, he went to the main office of the fortuitous event over which he had no control.
Authority in Manila on July 1, 1983, to encash two checks covering the wages of The petitioner stresses that he decided to encash the checks in the afternoon of
the employees and the operating expenses of the Project. He estimated that the July 1, 1983, which was a Friday, out of concern for the employees of the Project,
money would be available by ten o'clock in the morning and that he would be who were depending on him to make it possible for them to collect their pay the
back in Ternate by about two o'clock in the afternoon of the same day. For some following day. July 2 and 3 being non-working days and July 4 being a holiday,
reason, however, the processing of the checks was delayed and was completed they could receive such payment only on the following Tuesday unless he brought
only at three o'clock that afternoon. The petitioner decided nevertheless to the encashed checks on July 1, 1983, and took it to Ternate the following day.
encash them because the Project employees would be waiting for their pay the
following day. He thought he had to do this for their benefit as otherwise they On his decision to take the money home that afternoon instead of returning
would have to wait until the following Tuesday at the earliest when the main directly to Ternate, he says that the first course was more prudent as he saw it, if
office would reopen. And so, on that afternoon of July 1, 1983, he collected the only because his home in Marilao, Bulacan, was much nearer than his office in
cash value of the checks and left the main office with not an insubstantial amount Ternate, Cavite. The drive to Ternate would take three hours, including a 30-
of money in his hands. 1 minute tricycle ride along the dark and lonely Naic-Ternate road; and as he would
be starting after three o'clock in the afternoon, it was not likely that he would
What would he do with the money in the meantime? The petitioner had two reach his destination before nightfall. By contrast, the road to Marilao was nearer
choices, to wit: (1) return to Ternate, Cavite, that same afternoon and arrive and safer (or so he reasonably thought) and there was less risk involved in his
there in the early evening; or (2) take the money with him to his house in Marilao, taking the money the following morning to Ternate rather than on that same
Bulacan, spend the night there, and leave for Ternate the following morning. He afternoon of July 1.
opted for the second, thinking it the safer one. And so, on that afternoon of July
1, 1983, at a little past three o'clock, he took a passenger jeep bound for his The petitioner maintains that the likelihood of robbery during the time in
house in Bulacan. question was stronger in Ternate than in Marilao, so he should not be blamed if
the robbery did occur while he was on the way to Marilao that afternoon. That
It was while the vehicle was along Epifanio de los Santos Avenue that two persons was a fortuitous event that could not have reasonably been foreseen, especially
boarded with knives in hand and robbery in mind. One pointed his weapon at the on that busy highway. At any rate, he contends, he had not been remiss in
petitioner's side while the other slit his pocket and forcibly took the money he protecting the money in his custody; in fact, he immediately pursued the hold-
was carrying. The two then jumped out of the jeep and ran. Hernandez, after the uppers and succeeded in catching one of them who was subsequently prosecuted
initial shock, immediately followed in desperate pursuit. He caught up with and convicted. It might have been different if he had simply resigned himself to
Virgilio Alvarez and overcame him after a scuffle. The petitioner sustained the robbery and allowed the culprits to go scot-free. But he acted. His action
injuries in the lip arms and knees. Alvarez was subsequently charged with robbery after the robbery only goes to show his vigilance over the money entrusted to his
and pleaded guilty. But the hold-upper who escaped is still at large and the stolen custody and his readiness to protect it even at great personal risk.
money he took with him has not been recovered. 2
In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial
On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for of the petitioner's request, arguing that Hernandez was negligent in the
relief from money accountability under Section 638 of the Revised Administrative safekeeping of the stolen funds as correctly found by the Commission on
Code. This was favorably indorsed by the General Manager of the Philippine Audit. 7 Later, however, his successor, Solicitor General Francisco I. Chavez,
submitted a Manifestation in Lieu of Memorandum in which he sided with the Hindsight is a cruel judge. It is so easy to say, after the event, that one should
petitioner, agreeing that Hernandez had not committed any negligence or, have done this and not that or that he should not have acted at all, or else this
assuming he was guilty of contributory negligence, had made up for it with his problem would not have arisen at all. That is all very well as long as one is
efforts to retrieve the money and his capture of one of the robbers, who was examining something that has already taken place. One can hardly be wrong in
eventually convicted. 8 This prompted the respondent Commission on Audit to such a case. But the trouble with this retrospective assessment is that it assumes
submit its own memorandum. for everybody an uncanny prescience that will enable him by some mysterious
The Commission on Audit insists in this memorandum that the petitioner should process to avoid the pitfalls and hazards that he is expected to have foreseen. It
not be relieved from his money accountability because it was his own negligence does not work out that way in real life. For most of us, all we can rely on is a
that led to the loss of the cash he had sought to take not to Ternate in Cavite but reasoned conjecture of what might happen, based on common sense and our own
to Marilao. experiences, or our intuition, if you will, and without any mystic ability to peer
into the future. So it was with the petitioner.
Its contention is that the petitioner should not have encashed the cheeks on July
1, 1983, as the hour was already late and he knew he could not return to Ternate It is pointless to argue that Hernandez should have encashed the vouchers earlier
before nightfall. Knowing this, he should have prudently deferred encashing the because they were dated anyway on June 29, 1983. He was not obliged to encash
checks until the morning of the next working day on July 5, 1983, when he could the checks earlier and then again there might have been any number of reasons
have safely taken the money to Ternate. His alleged concern for the convenience why he did so only on July 1, 1983. The point is that he did encash the checks on
of his fellow workers was not really a valid reason because one of the checks he that date and took the money to Marilao and not Ternate in view of the lateness
had encashed, in the greater amount of P6,964.00, was in fact not for salaries and of the hour. The question before us is whether these acts are so tainted with
wages but for the operating expenses of the Project. There was no urgency to negligence or recklessness as to justify the denial of the petitioner's request for
encash that check. Moreover, if it is true that he had that much concern for the relief from accountability for the stolen money.
employees, he should have gone to the main office earlier than July 1, 1983, since It seems to us that the petitioner was moved only by the best of motives when he
the vouchers representing the checks had already been prepared as of June 29, encashed the checks on July 1, 1983, so his co-employees in Ternate could collect
1983. their salaries and wages the following day. Significantly, although this was a non-
The memorandum concludes that in deciding to take the money with him to working day, he was intending to make the trip to his office the following day for
Marilao after imprudently withdrawing it from the main office, the petitioner was the unselfish purpose of accommodating his fellow workers. The other alternative
assuming a risk from which he cannot now be excused after the loss of the money was to encash the check is on July 5, 1983, the next working day after July 1,
as a result of the robbery to which it was unreasonably exposed. In any event, the 1983, which would have meant a 5-day wait for the payment of the said salaries
burden of proof in petitions for relief from money accountability rests with the and wages. Being a modest employee himself, Hernandoz must have realized the
petitioner, who has not clearly established that the loss of the money was not the great discomfort it would cause the laborer who were dependent on their wages
result of his negligence. for their sustenance and were anxious to collect their pay as soon as possible.

Section 638 of the Revised Administrative Code reads as follows: For such an attitude, Hernandez should be commended rather than faulted.

Section 638. Credit for loss occurring in transit or due to casualty — As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one
Notice to Auditor. — When a loss of government funds or property occurs could easily agree that the former was the safer destination, being nearer, and in
while the same is in transit or is caused by fire, theft, or other casualty, view of the comparative hazards in the trips to the two places. It is true that the
the officer accountable therefor or having custody thereof shall petitioner miscalculated, but the Court feels he should not be blamed for that.
immediately notify the Auditor General, or the provincial auditor, The decision he made seemed logical at that time and was one that could be
according as a matter is within the original jurisdiction of the one or the expected of a reasonable and prudent person. And if, as it happened, the two
other, and within thirty days or such longer period as the Auditor, or robbers attacked him in broad daylight in the jeep while it was on a busy
provincial auditor, may in the particular case allow, shall present his highway, and in the presence of other passengers, it cannot be said that all this
application for relief, with the available evidence in support thereof. An was the result of his imprudence and negligence. This was undoubtedly a
officer who fails to comply with this requirement shall not be relieved of fortuitous event covered by the said provisions, something that could not have
liability or allowed credit for any such loss in the settlement of his been reasonably foreseen although it could have happened, and did.
accounts. We find, in sum, that under the circumstances as above narrated, the petitioner is
This provision has since then been reiterated, with some slight modification, in entitled to be relieved from accountability for the money forcibly taken from him
Section 73 of P.D. No. 1445, otherwise known as the "Government Auditing Code in the afternoon of July 1, 1983. To impose such liability upon him would be to
of the Philippines," which was promulgated on June 11. 1978. read the law too sternly when it should be softened by the proven facts.

Applying the letter and spirit of the above-mentioned laws, and after considering ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs.
the established facts in the light of the arguments of the parties, this Court It is so ordered.
inclines in favor of the petitioner.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.

1 Rollo, p. 8.
2 Ibid., p. 19.
3 Id., p. 26.
4 Id., pp, 27-28.
5 Id., p. 29.
6 Id., p. 31.
7 Id., pp. 126-127.
8 Id., pp. 188-189.
G.R. No. L-87584 June 16, 1992 back lumbar region, horizontal, across midline, from
left to right; hand right, palm, near wrist; hand left,
GOTESCO INVESTMENT CORPORATION, petitioner, index finger, dorsum, proximal phalanx.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents. Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar
DAVIDE. JR., J.: region — All negative.
Assailed in this petition for review under Rule 45 of the Rules of Court are both CONCLUSIONS
the Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March
1. Physical injuries rioted on the subject.
1989 2 of the respondent Court of Appeals in CA-G.R. CV No. 09699 which,
respectively affirmed in toto the decision of Branch XXI of the Regional Trial 2. That under normal condition in the absence
Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus of complication, said physical injuries will
Gotesco Investment Corporation", and denied petitioner's motion to reconsider require medical attendance and/or
the same. incapacitate the subject for a period of from
two to four weeks.
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina
Delza E. Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria On the other hand, the findings on plaintiff Gloria Chatto per
E. Chatto the sum of P49,050.00 as actual and consequential damages, P75,000.00 Medico Legal Certificate (Exh. "D") of Dr. Brion are as follows:
as moral damages and P20,000.00 as attorney's fees, plus the cost of the suit. xxx xxx xxx
These awards, except for the attorney's fees, were to earn interest at the rate of
twelve per cent (12%) per annum beginning from the date the complaint was Physical injuries:
filed, 16 November 1982, until the amounts were fully paid. Lacerated wounds:
The antecedent facts, as found by the trial court and affirmed by the respondent scalp vertex, running across suggittal
Court, are summarized by the latter in the challenged decision as follows: line, from left to right, 3.0 cm
The evidence shows that in the afternoon of June 4, 1982 sutured;
plaintiff Gloria E. Chatto, and her 15-year old daughter, plaintiff Contusion, forearm right, anterior aspect,
Lina Delza E. Chatto went to see the movie "Mother Dear" at upper third.
Superama I theater, owned by defendant Gotesco Investment
Corporation. They bought balcony tickets but even then were
unable to find seats considering the number of people Shoulder and upper third, arm right,
patronizing the movie. Hardly ten (10) minutes after entering posterior aspect, linear; backright,
the theater, the ceiling of its balcony collapsed. The theater scapular region, two in number,
was plunged into darkness and pandemonium ensued. Shocked linear; elbow right, posterior aspect;
and hurt, plaintiffs managed to crawl under the fallen ceiling. forearm right, anterior aspect,
As soon as they were able to get out to the street they walked middle third.
the nearby FEU Hospital where they were confined and treated Concusion (sic), cerebral.
for one (1) day.
X-Ray — Skull — Negative.
The next day, they transferred to the UST hospital. Plaintiff Cervical spines Straightening of cervical spine,
Gloria Chatto was treated in said hospital from June 5 to June probably to muscular spasm.
19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico
Legal Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, CONCLUSIONS:
plaintiff Lina Delza Chatto suffered the following injuries: 1. Physical injuries noted on subject.
Physical injuries: 2. That under normal condition, in the
Contusions: absence of complication, said physical injuries
will require medical attendance and/or
forehead and drental region, scalp left with hematoma; incapacitate the subject for a period of from
chest anterior upper bilateral; back right, scapular two to four weeks.
region; back, mid-portion, thoraco-lumbar regions,
bilateral Due to continuing pain in the neck, headache and dizziness,
plaintiff went to Illinois, USA in July 1982 for further treatment
(Exh "E"). She was treated at the Cook County Hospital in I. THE LOWER COURT ERRED IN ADMITTING PATENTLY —
Chicago, Illinois. She stayed in the U.S. for about three (3) INADMISSIBLE EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES
months during which time she had to return to the Cook County AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS
Defendant tried to avoid liability by alleging that the collapse of PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE
the ceiling of its theater was done due to force majeure. It CITY ENGINEER'S OFFICE OF MANILA.
maintained that its theater did not suffer from any structural or II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF
construction defect. (Exh. 1, 2, 3, 4, & 5) 3 THE BALCONY COLLAPSED DUE TO SOME STRUCTURAL
In justifying its award of actual or compensatory and moral damages and CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO
attorney's fees, the trial court said: AN ACT OF GOD OR FORCE MAJEURE.

It has been established thru the uncontradicted testimony of III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT
Mrs. Chatto that during the chaos and confusion at the theater WAS GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND
she lost a pair of earrings worth P2,500 and the sum of ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE
P1,000.00 in cash contained in her wallet which was lost; and BUILDING." 5
that she incurred the following expenses: P500.00 as In its decision, respondent Court found the appeal to be without merit. As to the
transportation fare from Cebu City to Manila on the first leg of first assigned error, it ruled that the trial court did not err in admitting the
her trip to the United States; P350.00 for her passport; and exhibits in question in the light of the ruling in Abrenica vs. Gonda 6 on waiver of
P46,978.00 for her expense relative to her treatment in the objections arising out of failure to object at the proper time Thus:
United States, including the cost of a round-trip ticket Exh. "A", the letter dated June 9, 1982 of Tina Mojica of
(P11,798.00) hospital and medical bills and other attendant defendant-appellant to the Administrator of UST Hospital
expenses. The total is P51,328.00, which is more than the sum expressing their willingness to guaranty the payment of the
of P49,050.00 claimed in the complaint, hence should be hospital bills of the plaintiffs-appellees was not objected to in
reduced accordingly. trial court for lack of authentication. It is too late to raise that
The same testimony has also established that Mrs. Chatto objection on appeal.
contracted to pay her counsel the sum of P20,000.00, which this Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at
court considers reasonable considering, among other things, the FEU, UST and Cook County Hospital. It may be true that the
professional standing of work (sic) involved in the prosecution of doctors who prepared them were not presented as witnesses.
this case. Such award of attorney's fees is proper because the Nonetheless, the records will show that counsel for defendant-
defendant's omission to provide the plaintiffs proper and appellant cross examined plaintiff-appellee Gloria Chatto on the
adequate safeguard to life and limb which they deserved as matter especially the content of Exhibits "F" to F-13",
patrons to (sic) its theater had compelled the plaintiffs to hire Consequently, defendant-appellant is estopped from claiming
the services of a counsel, file this case and prosecute it, thus lack of opportunity to verify their textual truth. Moreover, the
incurring expenses to protect their interest. record is full of the testimony of plaintiffs-appellees on the
The plaintiffs are entitled to moral damages, which are the injuries they sustained from the collapse of the ceiling of
direct and proximate result of the defendants gross negligence defendant-appellant's theater. Their existence is crystal clear.
and omission. Such moral damages include the plaintiffs' Exh. "E" is the flight coupon and passenger ticket (Northwest
physical suffering, mental anguish, fright and serious anxiety. Orient) of plaintiff-appellee Gloria Chatto from the Philippines
On the part of Mrs. Chatto, who obviously suffered much more to the U.S. (Manila-Chicago-Manila). Certainly, this is relevant
pain, anguish, fright and anxiety than her daughter Lina Delza, evidence on whether or not she actually travelled (sic) to the
such damages are compounded by the presence of permanent U.S. for further medical treatment. Defendant-appellant's
deformities on her body consisting of a 6-inch scar on the head contention that the best evidence on the issue is her passport is
and a 2-inch scar on one arm. The court believes that the sum off the mark. The best evidence rule applies only if the contents
of P75,000.00 for plaintiff Gloria E. Chatto and the sum of of the writing are directly in issue. In any event, her passport is
P10,000.00 for plaintiff Lina Delza E. Chatto would be not the only evidence on the matter.
reasonable. 4
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's
Petitioner submitted before the respondent Court the following assignment of expenses in the U.S in her own handwriting. Defendant-
errors: appellant's objection that it is self serving goes to the weight of
the evidence. The truth of Exh. "G" could be and should have
been tested by cross examination. It cannot be denied however A Yes, sir.
that such expenses are within the personal knowledge of the Q And do you personally inspect these buildings under
witness. your construction?
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee A Yes, whenever I can.
Gloria Chatto as part of her treatment in the U.S. Defendant-
appellant objects to its admission because it is self-serving. The Q In the case of Gotesco Cinema 1 and 2, had you any
objection is without merit in view of the evidence on record chance to inspect this building?
that plaintiff-appellee Gloria Chatto sustained head injuries A Yes, sir.
from the collapse of the ceiling of defendant-appellant's
Q Particularly in the months of May and June of 1982?
theater. In fact, counsel for defendant-appellant cross
examined the said witness on the medical finding of Cook A Yes, in that (sic) months.
County Hospital that she was suffering from neck muscle spasm. Q Now, you said also that sometime in June 1982 you
(TSN, April 17, 1984, p. 11) The wearing of a surgical neckwear remember that one of these theaters.
has proper basis.
Atty. Barcelona: continuing
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in
the U.S. showing the use of her surgical neckwear. Defendant- particularly Superama 1 the ceiling had collapsed?
appellant objects to this exhibit its hearsay because the A Yes, sir.
photographer was not presented as a witness. The objection is
Q Did you conduct an investigation?
incorrect. In order that photographs or pictures may be given in
evidence, they must be shown to be a true and faithful A Yes, sir.
representation of the place or objects to which they refer. The Q What was your finding?
photographs may be verified either by the photographer who
took it or by any person who is acquainted with the object A There was really nothing, I cannot explain. I could
represented and testify (sic) that the photograph faithfully not give any reason why the ceiling collapsed.
represents the object. (Moran, Comments in the Rules of Court, Q Could it not be due to any defect of the plant?
Vol. V, 1980 ed., p. 80 citing New York Co vs. Moore, 105 Fed. Atty. Florido:
725) In the case at bar, Exh. "I" was identified by plaintiff
appellee Gloria Chatto. 7 Already answered, Your Honor, he could not give any
As to the, other assigned errors, the respondent Court ruled:
The lower court did not also err in its finding that the collapse
of the ceiling of the theater's balcony was due to construction Objection sustained.
defects and not to force majeure. It was the burden defendant- Atty. Barcelona:
appellant to prove that its theater did not suffer from any
Q When that incident happened, did the owner Gotesco
structural defect when it was built and that it has been well
Investment Corporation went (sic) to you to call your
maintained when the incident occurred. This is its Special and
Affirmative Defense and it is incumbent on defendant-appellant
to prove it. Considering the collapse of the ceiling of its A Yes, sir.
theater's balcony barely four (4) years after its construction, it Atty. Florido:
behooved defendant-appellant to conduct an exhaustive study
of the reason for the tragic incident. On this score, the effort of Your Honor, we noticed (sic) series of leading
defendant-appellant borders criminal nonchalance. Its witness questions, but this time we object.
Jesus Lim Ong testified: COURT:
Atty. Barcelona: Sustained.
Q By the way, you made mention a while ago that your Atty. Barcelona;
staff of engineer and architect used to make round Q What did the owner of Gotesco do when the ceiling
inspection of the building under your construction the collapsed, upon knowing that one of the cinemas you
of these buildings is Gotesco Cinema 1 and 2, subject maintained collopsed?
matter of this case, and you also made a regular round
up or inspection of the theater. Is that right? A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate? The rule is well-settled that the jurisdiction of this Court in cases brought to it
A Yes, sir. from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive, 10 except only where a case is
Q Did you come out with any investigation report. shown as coming under the accepted exception. 11 None of the exceptions which
A There was nothing to report. this Court has painstakingly summarized in several cases 12 has been shown to
exist in this petition. Petitioner's claim that the collapse of the ceiling of the
Clearly, there was no authoritative investigation conducted by
theater's balcony was due to force majeure is not even founded on facts because
impartial civil and structural engineers on the cause of the
its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason
collapse of the theater's ceiling, Jesus Lim Ong is not an
why the ceiling collapsed." Having interposed it as a defense, it had the burden to
engineer, He is a graduate of architecture from the St. Louie
prove that the collapse was indeed caused by force majeure. It could not have
(sic) University in Baguio City. It does not appear he has passed
collapsed without a cause. That Mr. Ong could not offer any explanation does not
the government examination for architects. (TSN, June 14, 1985
imply force majeure. As early as eighty-five (85) years ago, this Court had the
p. 4) In fine, the ignorance of Mr. Ong about the cause of the
occasion to define force majeure. In Pons y Compañia vs. La Compañia
collapse of the ceiling of their theater cannot be equated, as an
Maritima 13 this Court held:
act, of God. To sustain that proposition is to introduce sacrilege
in our jurisprudence. 8 An examination of the Spanish and American authorities
concerning the meaning of force majeureshows that the
Its motion for reconsideration of the decision having been denied by the
jurisprudence of these two countries practically agree upon the
respondent Court, petitioner filed this petition assailing therein the challenged
meaning of this phrase.
decision on the following grounds:
Blackstone, in his Commentaries on English Law, defines it as —
1. The basis of the award for damages stems from medical
reports issued by private physicians of local hospitals without Inevitable accident or casualty; an accident produced
benefit of cross-examination and more seriously, xerox copies of by any physical cause which is irresistible; such as
medical findings issued by American doctors in the United States lightning. tempest, perils of the sea, inundation, or
without the production of originals, without the required earthquake; the sudden illness or death of a person. (2
consular authentication for foreign documents, and without the Blackstone's Commentaries, 122; Story in Bailments,
opportunity for cross-examination. sec. 25.)
2. The damage award in favor of respondents is principally, Escriche, in his Diccionario de Legislacion y
made depend on such unreliable, hearsay and incompetent Jurisprudencia, defines fuerza mayor as follows.
evidence for which an award of more than P150,000.00 in The event which we could neither foresee nor resist; as
alleged actual, moral and I "consequential" damages are for example, the lightning stroke, hail, inundation,
awarded to the prejudice of the right of petitioner to due hurricane, public enemy, attack by robbers; Vis major
process. . . . est, says Cayo, ea quae consilio humano neque
3. Unfortunately, petitioners evidence of due diligence in the provideri neque vitari potest. Accident and mitigating
care and maintenance of the building was not seriously circumstances.
considered by the Court of Appeals, considering that frequent Bouvier defines the same as —
inspections and maintenance precautions had to be observed by
hired engineers of petitioner, which enjoys an unsullied Any accident due to natural cause, directly exclusively
reputation in the business of exhibiting movies in a chain of without human intervention, such as could not have
movie houses in Metro Manila. 9 been prevented by any kind of oversight, pains and
care reasonably to have been expected. (Law Reports,
After the private respondents filed their Comment as required in the Resolution of 1 Common Pleas Division, 423; Law Reports, 10
17 May 1989, this Court resolved to give due course to the petition and required Exchequer, 255.)
the parties to file their respective Memoranda. Subsequently, private
respondents, in a motion, prayed for leave to adopt their Comment as their Corkburn, chief justice, in a well considered English case (1
Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Common Pleas Division, 34, 432), said that were a captain —
Memorandum on 10 January 1990. Uses all the known means to which prudent and
The petition presents both factual and legal issues. The first relates to the cause experienced captains ordinarily have recourse, he does
of the collapse of the ceiling while the latter involves the correctness of the all that can be reasonably required of him; and if,
admission of the exhibits in question. under such circumtances, he is overpowered by storm
or other natural agency, he is within the rule which
We find no merit in the petition. gives immunity from the effects of such vis major.
The term generally applies, broadly speaking, to natural Turning now to the legal issue posed in this petition, the error lies not in the
accidents, such as those caused by lightning, earthquake, disquisitions of the respondent Court, but in the sweeping conclusion of
tempests, public enemy ,etc. petitioner. We agree with the respondent Court that petitioner offered no
Petitioner could have easily discovered the cause of the collapse if indeed it were reasonable objection to the exhibits. More than this, however, We note that the
due to force majeure. To Our mind, the real reason why Mr. Ong could not exhibits were admitted not as independent evidence, but, primarily, as part of
explain the cause or reason is that either he did not actually conduct the the testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main
investigation or that he is, as the respondent Court impliedly held, incompetent. basis for the award of damages. As to the latter, including the award for
He is not an engineer, but an architect who had not even passed the government's attorney's fees, the testimonial evidence presented is sufficient to support the
examination. Verily, post-incident investigation cannot be considered as material same; moreover, petitioner was not deprived of its right to test the, truth or
to the present proceedings. What is significant is the finding of the trial court, falsity of private respondents' testimony through cross-examination or refute their
affirmed by the respondent Court, that the collapse was due to construction claim by its own evidence. It could not then be successfully argued by petitioner
defects. There was no evidence offered to overturn this finding. The building was that the admission of the exhibits violated the hearsay rule. As this Court sees it,
constructed barely four (4) years prior to the accident in question. It was not the trial court admitted such merely as independently relevant statements, which
shown that any of the causes denominates as force majeure obtained immediately was not objectionable, for:
before or at the time of the collapse of the ceiling. Such defects could have been Where, regardless of the truth or the falsity of a statement, the
easily discovered if only petitioner exercised due diligence and care in keeping fact that it has been made is relevant, the hearsay rule does not
and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there apply, but the statement may be shown. Evidence as to the
was no adequate inspection of the premises before the date of the accident. His making of such statement is not secondary but primary, for the
answers to the leading questions on inspection disclosed neither the exact dates statement itself may constitute a fact; in issue, or be
of said. inspection nor the nature and extent of the same. That the structural circumstantially relevant as to the existence of such a fact. 16
designs and plans of the building were duly approved by the City Engineer and the Furthermore, and with particular reference to the documents issued in the United
building permits and certificate of occupancy were issued do not at all prove that States of America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection
there were no defects in the construction, especially as regards the ceiling, thereto was not that they are hearsay. In its written comment and/or opposition
considering that no testimony was offered to prove that it was ever inspected at to documentary exhibits, petitioner objected to their admission on the following
all. grounds only:
It is settled that: . . . for being incompetent evidence considering that the same
The owner or proprietor of a place of public amusement were not duly authenticated by the responsible consular and/or
impliedly warrants that the premises, appliances and embassy officials authorized to authenticate the said
amusement devices are safe for the purpose for which they are documents. 17
designed, the doctrine being subject to no other exception or All told, the instant petition is without merit.
qualification than that he does not contract against unknown
defects not discoverable by ordinary or reasonable means. 14 WHEREFORE, judgment is hereby rendered DENYING the instant petition with
costs against petitioner.
This implied warranty has given rise to the rule that:
Where a patron of a theater or other place of public amusement
is injured, and the thing that caused the injury is wholly and Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur.
exclusively under the control and management of the
defendant, and the accident is such as in the ordinary course of Footnotes
events would not have happened if proper care had been 1 Per Associate Justice Reynato S. Puno, concurred in by
exercised, its occurrence raises a presumption or permits of an Associate Justices Alfredo M. Marigomen and Regina G. Ordoñez-
inference of negligence on the part of the defendant. 15 Benitez; Rollo, 24, et seq.
2 Id., 36-37.
That presumption or inference was not overcome by the petitioner. 3 Rollo, 24-26.
Besides, even assuming for the sake of argument that, as petitioner vigorously 4 Rollo, 26-27.
insists, the cause of the collapse was due to force majeure, petitioner would still 5 Rollo, 27-28.
be liable because it was guilty of negligence, which the trial court denominated 6 34 Phil. 739 [1916]
as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation 7 Rollo, 29-30.
on force majeure for one to be exempt from any liability because of it, he must 8 Rollo, 30-32.
have exercised care, i.e., he should not have been guilty of negligence. 9 Rollo, 6-7.
10 Chan vs. Court of Appeals, 33 SCRA 737 [1970], citing a host
of cases.
11 FNCB Finance vs. Estavillo. 192 SCRA 514 [1990].
12 See Remalante vs. Tibe, 158 SCRA 138 [1988].
13 9 Phil. 125, 129 [1907].
14 86 C.J.S. 718.
15 Id., 718.
16 FRANCISCO, V.J., The Revised Rules of Court in the
Philippines, vol. VII, Part I, 1973 ed., 438.
17 Page 13 of Petitioner Rollo, 17.
SECOND DIVISION 2. In case No. 7428, the defendant is hereby ordered to pay to
G.R. No. L-36481-2 October 23, 1982 plaintiff Clara Uy Bico the aggregate sum of P16,625.00 with
legal interest thereon from the date of the filing of the
AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees, complaint until fully paid, and to pay the costs.
vs. Article 1736 of the Civil Code imposes upon common carriers the duty to observe
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant. extraordinary diligence from the moment the goods are unconditionally placed in
their possession "until the same are delivered, actually or constructively, by the
Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando. carrier to the consignee or to the person who has a right to receive them, without
Benedicto, Sumbingco & Associate for appellee Clara Uy Bico. prejudice to the provisions of Article 1738. "
Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.
The court a quo held that the delivery of the shipment in question to the
ESCOLIN, J.: warehouse of the Bureau of Customs is not the delivery contemplated by Article
1736; and since the burning of the warehouse occurred before actual or
This appeal, originally brought to the Court of Appeals, seeks to set aside the constructive delivery of the goods to the appellees, the loss is chargeable against
decision of the Court of First Instance of Negros Occidental in Civil Cases Nos. the appellant.
7354 and 7428, declaring appellant Philippine Steam Navigation liable for
damages for the loss of the appellees' cargoes as a result of a fire which gutted It should be pointed out, however, that in the bills of lading issued for the cargoes
the Bureau of Customs' warehouse in Pulupandan, Negros Occidental. in question, the parties agreed to limit the responsibility of the carrier for the
loss or damage that may be caused to the shipment by inserting therein the
The Court of Appeals certified the case to Us because only pure questions of law following stipulation:
are raised therein.
Clause 14. Carrier shall not be responsible for loss or damage to
The facts culled from the pleadings and the stipulations submitted by the parties shipments billed 'owner's risk' unless such loss or damage is due
are as follows: to negligence of carrier. Nor shall carrier be responsible for loss
On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on or damage caused by force majeure, dangers or accidents of the
board the appellant's vessel, FS-176, for carriage from Manila to Pulupandan, sea or other waters; war; public enemies; . . . fire . ...
Negros Occidental, the following cargoes, to wit: We sustain the validity of the above stipulation; there is nothing therein that is
Clara Uy Bico — contrary to law, morals or public policy.
1,528 cavans of rice valued Appellees would contend that the above stipulation does not bind them because it
at P40,907.50; was printed in fine letters on the back-of the bills of lading; and that they did not
Amparo Servando — sign the same. This argument overlooks the pronouncement of this Court in Ong
44 cartons of colored paper, Yiu vs. Court of Appeals, promulgated June 29, 1979, 3 where the same issue was
toys and general merchandise valued at resolved in this wise:
While it may be true that petitioner had not signed the plane
as evidenced by the corresponding bills of lading issued by the appellant. ticket (Exh. '12'), he is nevertheless bound by the provisions
Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963, thereof. 'Such provisions have been held to be a part of the
the cargoes were discharged, complete and in good order, unto the warehouse of contract of carriage, and valid and binding upon the passenger
the Bureau of Customs. At about 2:00 in the afternoon of the same day, said regardless of the latter's lack of knowledge or assent to the
warehouse was razed by a fire of unknown origin, destroying appellees' cargoes. regulation'. It is what is known as a contract of 'adhesion', in
Before the fire, however, appellee Uy Bico was able to take delivery of 907 regards which it has been said that contracts of adhesion
cavans of rice 2 Appellees' claims for the value of said goods were rejected by the wherein one party imposes a ready made form of contract on
appellant. the other, as the plane ticket in the case at bar, are contracts
On the bases of the foregoing facts, the lower court rendered a decision, the not entirely prohibited. The one who adheres to the contract is
decretal portion of which reads as follows: in reality free to reject it entirely; if he adheres, he gives his
consent." (Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing
WHEREFORE, judgment is rendered as follows: Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49).
1. In case No. 7354, the defendant is hereby ordered to pay the Besides, the agreement contained in the above quoted Clause 14 is a mere
plaintiff Amparo C. Servando the aggregate sum of P1,070.50 iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code:
with legal interest thereon from the date of the filing of the
complaint until fully paid, and to pay the costs. Article 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or I concur. Under article 1738 of the Civil Code "the extraordinary liability of the
which, though foreseen, were inevitable. common carrier continues to be operative even during the time the goods are
Thus, where fortuitous event or force majeure is the immediate and proximate stored in the warehouse of the carrier at the place of destination, until the
cause of the loss, the obligor is exempt from liability for non-performance. The consignee has been advised of the arrival of the goods and has had reasonable
Partidas, 4 the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' opportunity thereafter to remove them or otherwise dispose of them".
as 'an event that takes place by accident and could not have been foreseen. From the time the goods in question were deposited in the Bureau of Customs'
Examples of this are destruction of houses, unexpected fire, shipwreck, violence warehouse in the morning of their arrival up to two o' clock in the afternoon of
of robbers.' the same day, when the warehouse was burned, Amparo C. Servando and Clara Uy
In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Bico, the consignees, had reasonable opportunity to remove the goods. Clara had
Espanola 5 says: "In a legal sense and, consequently, also in relation to contracts, removed more than one-half of the rice consigned to her.
a 'caso fortuito' presents the following essential characteristics: (1) the cause of Moreover, the shipping company had no more control and responsibility over the
the unforeseen and unexpected occurrence, or of the failure of the debtor to goods after they were deposited in the customs warehouse by the arrastre and
comply with his obligation, must be independent of the human will; (2) it must be stevedoring operator.
impossible to foresee the event which constitutes the 'caso fortuito', or if it can No amount of extraordinary diligence on the part of the carrier could have
be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to prevented the loss of the goods by fire which was of accidental origin.
render it impossible for the debtor to fulfill his obligation in a normal manner;
and (4) the obligor must be free from any participation in the aggravation of the Under those circumstances, it would not be legal and just to hold the carrier
injury resulting to the creditor." In the case at bar, the burning of the customs liable to the consignees for the loss of the goods. The consignees should bear the
warehouse was an extraordinary event which happened independently of the will loss which was due to a fortuitous event.
of the appellant. The latter could not have foreseen the event.
There is nothing in the record to show that appellant carrier ,incurred in delay in
the performance of its obligation. It appears that appellant had not only notified Footnotes
appellees of the arrival of their shipment, but had demanded that the same be 1 Exhibits A, B, C, D, E, F, G and H.
withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken delivery 2 Par. IV, Complaint; p. 23, Record on Appeal.
of 907 cavans of rice before the burning of the warehouse. Page 836
3 91 SCRA 224.
Nor can the appellant or its employees be charged with negligence. The storage 4 Law 11, Title 33, Partida 7.
of the goods in the Customs warehouse pending withdrawal thereof by the 5 Enciclopedia Juridicada Espanola.
appellees was undoubtedly made with their knowledge and consent. Since the 6 43 Phil. 511.
warehouse belonged to and was maintained by the government, it would be unfair
to impute negligence to the appellant, the latter having no control whatsoever
over the same.
The lower court in its decision relied on the ruling laid down in Yu Biao Sontua vs.
Ossorio 6, where this Court held the defendant liable for damages arising from a
fire caused by the negligence of the defendant's employees while loading cases of
gasoline and petroleon products. But unlike in the said case, there is not a shred
of proof in the present case that the cause of the fire that broke out in the
Custom's warehouse was in any way attributable to the negligence of the
appellant or its employees. Under the circumstances, the appellant is plainly not
WHEREFORE, the judgment appealed from is hereby set aside. No costs.
Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ.,

Separate Opinions
AQUINO, J., concurring:
THIRD DIVISION injuria. By way of special affirmative defense, the defendants averred that the
G.R. Nos. 103442-45 May 21, 1993 NPC cannot be sued because it performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense was
NATIONAL POWER CORPORATION, ET AL., petitioners, conducted. As a result thereof, the trial court dismissed the complaints as against
vs. the NPC on the ground that the provision of its charter allowing it to sue and be
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents. sued does not contemplate actions based on tort. The parties do not, however,
dispute the fact that this Court overruled the trial court and ordered the
The Solicitor General for plaintiff-appellee. reinstatement of the complaints as against the NPC. 5
Ponciano G. Hernandez for private respondents. Being closely interrelated, the cases were consolidated and trial thereafter
DAVIDE, JR., J.: The lower court rendered its decision on 30 April 1990 dismissing the complaints
This is a petition for review on certiorari under Rule 45 of the Revised Rules of "for lack of sufficient and credible evidence." 6 Consequently, the private
Court urging this Court to set aside the 19 August 1991 consolidated Decision of respondents seasonably appealed therefrom to the respondent Court which then
the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which reversed the Decision docketed the cases as CA-G.R. CV Nos. 27290-93.
of Branch 5 of the then Court of First Instance (now Regional Trial Court) of In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed
Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin the appealed decision and awarded damages in favor of the private respondents.
Chavez jointly and severally liable to the private respondents for actual and moral The dispositive portion of the decision reads:
damages, litigation expenses and attorney's fees. CONFORMABLY TO THE FOREGOING, the joint decision appealed
This present controversy traces its beginnings to four (4) separate complaints 2 for from is hereby REVERSED and SET ASIDE, and a new one is
damages filed against the NPC and Benjamin Chavez before the trial court. The hereby rendered:
plaintiffs therein, now private respondents, sought to recover actual and other 1. In Civil Case No. SM-950, ordering defendants-appellees to
damages for the loss of lives and the destruction to property caused by the pay, jointly and severally, plaintiffs-appellants, with legal
inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The interest from the date when this decision shall become final and
flooding was purportedly caused by the negligent release by the defendants of executory, the following:
water through the spillways of the Angat Dam (Hydroelectric Plant). In said A. Actual damages, to wit:
complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and 1) Gaudencio C. Rayo, Two Hundred Thirty One
maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Thousand Two Hundred Sixty Pesos (P231,260.00);
Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at 2) Bienvenido P. Pascual, Two Hundred Four Thousand
the time of the incident in question; 3) despite the defendants' knowledge, as Five Hundred Pesos (P204.500.00);
early as 24 October 1978, of the impending entry of typhoon "Kading," they failed 3) Tomas Manuel, One Hundred Fifty Five Thousand
to exercise due diligence in monitoring the water level at the dam; 4) when the Pesos (P155,000.00);
said water level went beyond the maximum allowable limit at the height of the 4) Pedro C. Bartolome, One Hundred Forty Seven
typhoon, the defendants suddenly, negligently and recklessly opened three (3) of Thousand Pesos (P147,000.00);.
the dam's spillways, thereby releasing a large amount of water which inundated 5) Bernardino Cruz, One Hundred Forty Three Thousand
the banks of the Angat River; and 5) as a consequence, members of the household Five Hundred Fifty Two Pesos and Fifty Centavos
of the plaintiffs, together with their animals, drowned, and their properties were (P143,552.50);
washed away in the evening of 26 October and the early hours of 27 October 6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos
1978. 3 (P57,500.00);
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC 7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);
exercised due care, diligence and prudence in the operation and maintenance of 8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos
the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the (P29,080.00); and
selection of its employees; 3) written notices were sent to the different B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
municipalities of Bulacan warning the residents therein about the impending 2. In Civil case No. SM-951, ordering defendants-appellees to
release of a large volume of water with the onset of typhoon "Kading" and advise pay jointly and severally, plaintiff-appellant, with legal interest
them to take the necessary precautions; 4) the water released during the typhoon from the date when this decision shall have become final and
was needed to prevent the collapse of the dam and avoid greater damage to executory, the following :
people and property; 5) in spite of the precautions undertaken and the diligence A. Actual damages of Five Hundred Twenty Thousand
exercised, they could still not contain or control the flood that resulted and; 6) Pesos (P520,000.00);.
the damages incurred by the private respondents were caused by a fortuitous B. Moral damages of five hundred Thousand Pesos
event or force majeure and are in the nature and character of damnum absque (P500,000.00); and.
C. Litigation expenses of Ten Thousand Pesos Angat River bank would have been avoided had defendants-
(P10,000.00);. appellees prepared the Angat Dam by maintaining in the first
3. In Civil Case No. SM-953, ordering defendants-appellees to place, a water elevation which would allow room for the
pay, jointly and severally, with legal interest from the date expected torrential rains. 8
when this decision shall have become final and executory; This conclusion, in turn, is anchored on its findings of fact, to wit:
A. Plaintiff-appellant Angel C. Torres: As early as October 21, 1978, defendants-appellees knew of the
1) Actual damages of One Hundred Ninety Nine Thousand One impending onslaught of and imminent danger posed by typhoon
Hundred Twenty Pesos (P199,120.00); "Kading". For as alleged by defendants-appellees themselves,
2) Moral Damages of One Hundred Fifty Thousand Pesos the coming of said super typhoon was bannered by Bulletin
(P150,000.00); Today, a newspaper of national circulation, on October 25,
B. Plaintiff-appellant Norberto Torres: 1978, as "Super Howler to hit R.P." The next day, October 26,
1) Actual damages of Fifty Thousand Pesos (P50,000.00); 1978, said typhoon once again merited a headline in said
2) Moral damages of Fifty Thousand Pesos (P50,000.00); newspaper as "Kading's Big Blow expected this afternoon"
C. Plaintiff-appellant Rodelio Joaquin: (Appellee's Brief, p. 6). Apart from the newspapers, defendants-
1) Actual damages of One Hundred Thousand Pesos appellees learned of typhoon "Kading' through radio
(P100,000.00); announcements (Civil Case No. SM-950, TSN, Benjamin Chavez,
2) Moral damages of One Hundred Thousand Pesos December 4, 1984, pp. 7-9).
(P100,000.00); and Defendants-appellees doubly knew that the Angat Dam
D. Plaintifsf-appellants litigation expenses of Ten Thousand can safely hold a normal maximum headwater elevation of 217
Pesos (P10,000.00); meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-
4. In Civil case No. SM-1247, ordering defendants-appellees to 6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247,
pay, jointly and severally, with legal interest from the date Exhibit "G-6").
when this decision shall have become final and executory : Yet, despite such knowledge, defendants-appellees maintained
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo a reservoir water elevation even beyond its maximum and safe
Lorenzo: level, thereby giving no sufficient allowance for the reservoir to
1) Actual damages of Two Hundred Fifty Six Thousand contain the rain water that will inevitably be brought by the
Six Hundred Pesos (P256,600.00); coming typhoon.
2) Moral damages of Fifty Thousand Pesos (P50,000.00); On October 24, 1978, before typhoon "Kading" entered the
B. Plaintiff-appellant Consolacion Guzman : Philippine area of responsibility, water elevation ranged from
1) Actual damages of One Hundred forty Thousand 217.61 to 217.53, with very little opening of the spillways,
Pesos (P140,000.00); ranging from 1/2 to 1 meter. On October 25, 1978, when
2) Moral damages of Fifty Thousand Pesos (P50,000.00); typhoon "Kading" entered the Philippine area of responsibility,
C. Plaintiff-appellant Virginia Guzman : and public storm signal number one was hoisted over Bulacan at
1) Actual damages of Two Hundred Five Hundred 10:45 a.m., later raised to number two at 4:45 p.m., and then
Twenty Pesos (205,520.00); and to number three at 10:45 p.m., water elevation ranged from
D. Plaintiffs-appellants litigation expenses of Ten Thousand 217.47 to 217.57, with very little opening of the spillways,
Pesos (10,000.00). ranging from 1/2 to 1 meter. On October 26, 1978, when public
In addition, in all the four (4) instant cases, ordering storm signal number three remained hoisted over Bulacan, the
defendants-appellees to pay, jointly and severally, plaintiffs- water elevation still remained at its maximum level of 217.00 to
appellants attorney fees in an amount equivalent to 15% of the 218.00 with very little opening of the spillways ranging from 1/2
total amount awarded. to 2 meters, until at or about midnight, the spillways were
No pronouncement as to costs. 7 suddenly opened at 5 meters, then increasing swiftly to 8, 10,
The foregoing judgment is based on the public respondent's conclusion that the 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of
petitioners were guilty of: October 27, 1978, releasing water at the rate of 4,500 cubic
. . . a patent gross and evident lack of foresight, imprudence meters per second, more or less. On October 27, 1978, water
and negligence . . . in the management and operation of Angat elevation remained at a range of 218.30 to 217.05 (Civil Case
Dam. The unholiness of the hour, the extent of the opening of No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and
the spillways, And the magnitude of the water released, are all Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-
but products of defendants-appellees' headlessness, 1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM
slovenliness, and carelessness. The resulting flash flood and 1247, Exhibits "F" and "F-1").
inundation of even areas (sic) one (1) kilometer away from the xxx xxx xxx
From the mass of evidence extant in the record, We are The motion for reconsideration filed by the petitioners, as well as the motion to
convinced, and so hold that the flash flood on October 27, 1978, modify judgment filed by the public respondents, 13 were denied by the public
was caused not by rain waters (sic), but by stored waters (sic) respondent in its Resolution of 27 December 1991. 14
suddenly and simultaneously released from the Angat Dam by Petitioners thus filed the instant petition on 21 February 1992.
defendants-appellees, particularly from midnight of October 26, After the Comment to the petition was filed by the private respondents and the
1978 up to the morning hours of October 27, Reply thereto was filed by the petitioners, We gave due course to the petition on
1978. 9 17 June 1992 and directed the parties to submit their respective
The appellate court rejected the petitioners' defense that they had sent "early Memoranda, 15 which they subsequently complied with.
warning written notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, The petitioners raised the following errors allegedly committed by the respondent
Baliwag and Calumpit dated 24 October 1978 which read: Court :
Please be informed that at present our reservoir (dam) is full PETITIONERS WERE GUILTY OF NEGLIGENCE.
and that we have been releasing water intermittently for the II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
With the coming of typhoon "Rita" (Kading) we expect to release
greater (sic) volume of water, if it pass (sic) over our place.
In view of this kindly advise people residing along Angat River to NOT DAMNUM ABSQUE INJURIA.
keep alert and stay in safe places. IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE
Power Plant Superintendent These same errors were raised by herein petitioners in G.R. No. 96410,
because: entitled National Power Corporation, et al., vs. Court of Appeals, et al., 17 which
this Court decided on 3 July 1992. The said case involved the very same incident
Said notice was delivered to the "towns of Bulacan" on October
subject of the instant petition. In no uncertain terms, We declared therein that
26, 1978 by defendants-appellees driver, Leonardo Nepomuceno
the proximate cause of the loss and damage sustained by the plaintiffs therein —
(Civil Case No. SM-950, TSN, Benjamin Chavez, December 4,
who were similarly situated as the private respondents herein — was the
1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985,
negligence of the petitioners, and that the 24 October 1978 "early warning notice"
pp. 10-12).
supposedly sent to the affected municipalities, the same notice involved in the
Said notice is ineffectual, insufficient and inadequate for
case at bar, was insufficient. We thus cannot now rule otherwise not only because
purposes of the opening of the spillway gates at midnight of
such a decision binds this Court with respect to the cause of the inundation of the
October 26, 1978 and on October 27, 1978. It did not prepare or
town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of
warn the persons so served, for the volume of water to be
lives and the destruction to property in both cases, but also because of the fact
released, which turned out to be of such magnitude, that
that on the basis of its meticulous analysis and evaluation of the evidence
residents near or along the Angat River, even those one (1)
adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public
kilometer away, should have been advised to evacuate. Said
respondent found as conclusively established that indeed, the petitioners were
notice, addressed "TO ALL CONCERN (sic)," was delivered to a
guilty of "patent gross and evident lack of foresight, imprudence and negligence in
policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A")
the management and operation of Angat Dam," and that "the extent of the
for the municipality of Norzagaray. Said notice was not thus
opening of the spillways, and the magnitude of the water released, are all but
addressed and delivered to the proper and responsible officials
products of defendants-appellees' headlessness, slovenliness, and
who could have disseminated the warning to the residents
carelessness." 18 Its findings and conclusions are biding upon Us, there being no
directly affected. As for the municipality of Sta. Maria, where
showing of the existence of any of the exceptions to the general rule that findings
plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice
of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated,
does not appear to have been served. 11
the challenged decision can stand on its own merits independently of Our decision
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent
in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in the
rejected the petitioners' plea that the incident in question was caused by force
latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as
majeure and that they are, therefore, not liable to the private respondents for
far as the concurrent liability of an obligor in the case of force majeure is
any kind of damage — such damage being in the nature of damnum absque
concerned. In the Nakpil case, We held:
To exempt the obligor from liability under Article 1174 of the
Civil Code, for a breach of an obligation due to an "act of God,"
the following must concur: (a) the cause of the breach of the # Footnotes
obligation must be independent of the will of the debtor; (b) 1 Annex "A" of Petition; Rollo, 34-53. Per Associate Justice
the event must be either unforseeable or unavoidable; (c) the Venancio D. Aldecoa, Jr., concurred in by Associate Justices Luis
event must be such as to render it impossible for the debtor to L. Victor and Filemon N. Mendoza.
fulfill his obligation in a moral manner; and (d) the debtor must 2 Civil Case No. SM-950 entitled "GAUDENCIO C. RAYO,
be free from any participation in, or aggravation of the injury to BIENVENIDO P. PASCUAL, TOMAS MANUEL, PEDRO C.
the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; BARTOLOME, BERNARDO CRUZ, JOSE PALAD, MARIANO CRUZ AND
Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of LUCIO FAJARDO versus NATIONAL POWER CORPORATION AND
Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring BENJAMIN CHAVEZ," and filed on 20 December 1978;
Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657). Civil Case No. SM-951 entitled "FRANCISCO RAYOS versus
Thus, if upon the happening of a fortuitous event or an act of NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and
God, there concurs a corresponding fraud, negligence, delay or filed on 29 December 1978
violation or contravention in any manner of the tenor of the Civil Case No. SM-953 entitled "ANGEL C. TORRES, NORBERTO
obligation as provided for in Article 1170 of the Civil Code, TORRES AND RODELIO JOAQUIN versus NATIONAL POWER
which results in loss or damage, the obligor cannot escape CORPORATION AND BENJAMIN CHAVEZ," and filed on 4 January
liability. 1978; and
The principle embodied in the act of God doctrine strictly Civil Case No. SM-1247 entitled "PRESENTACION LORENZO,
requires that the act must be one occasioned exclusively by the CLODUALDO LORENZO, CONSOLACION GUZMAN AND VIRGINIA
violence of nature and all human agencies are to be excluded GUZMAN, in her behalf and as natural guardian of her minor
from creating or entering into the cause of the mischief. When children, RODELIO, MINERVA AND EMERSON, all surnamed
the effect, the cause of which is to be considered, is found to GUZMAN, versus NATIONAL POWER CORPORATION AND BENJAMIN
be in part the result of the participation of man, whether it be CHAVEZ," and filed on 29 January 1982.
from active intervention or neglect, or failure to act, the whole 3 CA Decision, 3; Rollo, 37.
occurrence is thereby humanized, as it were, and removed from 4 Id., 3-4; Id., 37-38.
the rules applicable to the acts of God. (1 Corpus Juris, pp. 5 CA Decision, 4; Rollo, 38.
1174-1175). 6 Id., 2; Id., 36.
Thus it has been held that when the negligence of a person 7 Rollo, 51-53.
concurs with an act of God in producing a loss, such person is 8 Rollo, 40.
not exempt from liability by showing that the immediate cause 9 Rollo, 39-41.
of the damage was the act of God. To be exempt from liability 10 Rollo, 41.
for loss because of an act of God, he must be free from any 11 Id., 42.
previous negligence or misconduct by which that loss or damage 12 144 SCRA 596 [1986], quoted in National Power Corp. vs.
may have been occasioned. (Fish & Elective Co. v. Phil. Motors, Court of Appeals, 161 SCRA 334 [1988].
55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons 13 In the matter of when interest on the damages awarded will
v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 accrue, the Court of Appeals ruled that interest shall be paid
Phil. 657). 21 only from the time its decision shall have become final and
Accordingly, petitioners cannot be heard to invoke the act of God or force executory.
majeure to escape liability for the loss or damage sustained by private 14 Rollo, 56-57.
respondents since they, the petitioners, were guilty of negligence. The event then 15 Id., 166.
was not occasioned exclusively by an act of God or force majeure; a human factor 16 Rollo, 16.
— negligence or imprudence — had intervened. The effect then of the force 17 211 SCRA 162 [1992].
majeure in question may be deemed to have, even if only partly, resulted from 18 Supra.
the participation of man. Thus, the whole occurrence was thereby humanized, as 19 Remalante vs. Tibe, 158 SCRA 138 [1988]; Median vs. Asistio,
it were, and removed from the laws applicable to acts of God. Jr., 191 SCRA 218 [1990].
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the 20 Supra.
Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is 21 Supra, at 606-607.
AFFIRMED, with costs against the petitioners.

Feliciano, Bidin, Romero and Melo, JJ., concur.

THIRD DIVISION in others' houses. And so they sought to recover from petitioner P117,116.00, as
G.R. No. 126389 July 10, 1998 actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary
damages and P100,000.00, for and as attorney's fees; plus costs.
SOUTHEASTERN COLLEGE INC., petitioner, In its Answer, petitioner averred that subject school building had withstood
vs. several devastating typhoons and other calamities in the past, without its roofing
COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, or any portion thereof giving way; that it has not been remiss in its responsibility
REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS to see to it that said school building, which houses school children, faculty
DIMAANO, respondents. members, and employees, is "in tip-top condition"; and furthermore, typhoon
"Saling" was "an act of God and therefore beyond human control" such that
PURISIMA, J.: petitioner cannot be answerable for the damages wrought thereby, absent any
Petition for review under Rule 45 of the Rules of Court seeking to set aside the negligence on its part.
Decision 1 promulgated on July 31, 1996, and Resolution 2 dated September 12, The trial court, giving credence to the ocular inspection report to the effect that
1996 of the Court of Appeals 3 in CA-G.R. No. 41422, entitled "Juanita de Jesus subject school building had a "defective roofing structure," found that, while
vda. de Dimaano, et al. vs. Southeastern College, Inc.", which reduced the moral typhoon "Saling" was accompanied by strong winds, the damage to private
damages awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution respondents' houses "could have been avoided if the construction of the roof of
under attack denied petitioner's motion for reconsideration. [petitioner's] building was not faulty." The dispositive portion of the lower court's
Private respondents are owners of a house at 326 College Road, Pasay City, while decision 7 reads, thus:
petitioner owns a four-storey school building along the same College Road. On WHEREFORE, in view of the foregoing, the Court renders
October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit judgment (sic) in favor of the plaintiff (sic) and against the
Metro Manila. Buffeted by very strong winds, the roof of petitioner's building was defendants, (sic) ordering the latter to pay jointly and severally
partly ripped off and blown away, landing on and destroying portions of the the former as follows:
roofing of private respondents' house. After the typhoon had passed, an ocular
inspection of the destroyed building was conducted by a team of engineers a) P117,116.00, as actual damages, plus litigation
headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the expenses;
latter's Report 5 dated October 18, 1989 stated, as follows: b) P1,000,000.00 as moral damages;
5. One of the factors that may have led to this calamitous event c) P100,000.00 as attorney's fees;
is the formation of the building in the area and the general
d) Costs of the instant suit.
direction of the wind. Situated in the peripheral lot is an almost
U-shaped formation of 4-storey building. Thus, with the strong The claim for exemplary damages is denied for the reason that
winds having a westerly direction, the general formation of the the defendants (sic) did in a wanton fraudulent, reckless,
building becomes a big funnel-like structure, the one situated oppressive or malevolent manner.
along College Road, receiving the heaviest impact of the strong In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:
winds. Hence, there are portions of the roofing, those located
on both ends of the building, which remained intact after the I
6. Another factor and perhaps the most likely reason for the ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON" FOR THE
dislodging of the roofing structural trusses is the improper RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERN'S
anchorage of the said trusses to the roof beams. The 1/2' FOUR (4) STOREY SCHOOL BUILDING.
diameter steel bars embedded on the concrete roof beams II
which serve as truss anchorage are not bolted nor nailed to the
trusses. Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not anchored at all
to the roof beams.
It then recommended that "to avoid any further loss and damage to lives, AND PROXIMATE CAUSE OF THE INCIDENT.
limbs and property of persons living in the vicinity," the fourth floor of
subject school building be declared as a "structural hazard."
In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage
to their house rendered the same uninhabitable, forcing them to stay temporarily
AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING In order that a fortuitous event may exempt a person from liability, it is necessary
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC. that he be free from any previous negligence or misconduct by reason of which
IV the loss may have been occasioned. 12 An act of God cannot be invoked for the
protection of a person who has been guilty of gross negligence in not trying to
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF forestall its possible adverse consequences. When a person's negligence concurs
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERN'S APPEAL with an act of God in producing damage or injury to another, such person is not
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO. exempt from liability by showing that the immediate or proximate cause of the
As mentioned earlier, respondent Court of Appeals affirmed with modification the damages or injury was a fortuitous event. When the effect is found to be partly
trial court's disposition by reducing the award of moral damages from the result of the participation of man — whether it be from active intervention, or
P1,000,000.00 to P200,000.00. Hence, petitioner's resort to this Court, raising for neglect, or failure to act — the whole occurrence is hereby humanized, and
resolution the issues of: removed from the rules applicable to acts of God. 13
1. Whether or not the award of actual damages [sic] to respondent In the case under consideration, the lower court accorded full credence to the
Dimaanos on the basis of speculation or conjecture, without proof or finding of the investigating team that subject school building's roofing had "no
receipts of actual damage, [sic] legally feasible or justified. sufficient anchorage to hold it in position especially when battered by strong
winds." Based on such finding, the trial court imputed negligence to petitioner
2. Whether or not the award of moral damages to respondent Dimaanos,
and adjudged it liable for damages to private respondents.
with the latter having suffered, actual damage has legal basis.
After a thorough study and evaluation of the evidence on record, this Court
3. Whether or not respondent Dimaanos who are no longer the owner of
believes otherwise, notwithstanding the general rule that factual findings by the
the property, subject matter of the case, during its pendency, has the
trail court, especially when affirmed by the appellate court, are binding and
right to pursue their complaint against petitioner when the case was
conclusive upon this Court. 14 After a careful scrutiny of the records and the
already moot and academic by the sale of the property to third party.
pleadings submitted by the parties, we find exception to this rule and hold that
4. Whether or not the award of attorney's fees when the case was the lower courts misappreciated the evidence proffered.
already moot academic [sic] legally justified.
There is no question that a typhoon or storm is a fortuitous event, a natural
5. Whether or not petitioner is liable for damage caused to others by occurrence which may be foreseen but is unavoidable despite any amount of
typhoon "Saling" being an act of God. foresight, diligence or care. 15 In order to be exempt from liability arising from
6. Whether or not the issuance of a writ of execution pending any adverse consequence engendered thereby, there should have been no human
appeal, ex-parte or without hearing, has support in law. participation amounting to a negligent act. 16 In other words; the person seeking
exoneration from liability must not be guilty of negligence. Negligence, as
The pivot of inquiry here, determinative of the other issues, is whether the commonly understood, is conduct which naturally or reasonably creates undue
damage on the roof of the building of private respondents resulting from the risk or harm to others. It may be the failure to observe that degree of care,
impact of the falling portions of the school building's roof ripped off by the strong precaution, and vigilance which the circumstances justify demand, 17 or the
winds of typhoon "Saling", was, within legal contemplation, due to fortuitous omission to do something which a prudent and reasonable man, guided by
event? If so, petitioner cannot be held liable for the damages suffered by the considerations which ordinarily regulate the conduct of human affairs, would
private respondents. This conclusion finds support in Article 1174 of Civil Code, do. 18 From these premises, we proceed to determine whether petitioner was
which provides: negligent, such that if it were not, the damage caused to private respondents'
Art 1174. Except in cases expressly specified by the law, or when it is house could have been avoided?
otherwise declared by stipulation, or when the nature of the obligation At the outset, it bears emphasizing that a person claiming damages for the
requires the assumption of risk, no person shall be responsible for those negligence of another has the burden of proving the existence of fault or
events which could not be foreseen, or which, though foreseen, were negligence causative of his injury or loss. The facts constitutive of negligence
inevitable. must be affirmatively established by competent evidence, 19 not merely by
The antecedent of fortuitous event or caso fortuito is found in the Partidas which presumptions and conclusions without basis in fact. Private respondents, in
defines it as "an event which takes place by accident and could not have been establishing the culpability of petitioner, merely relied on the aforementioned
foreseen." 9 Escriche elaborates it as "an unexpected event or act of God which report submitted by a team which made an ocular inspection of petitioner's school
could neither be foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that building after the typhoon. As the term imparts, an ocular inspection is one by
"[f]ortuitous events may be produced by two general causes: (1) by nature, such means of actual sight or viewing. 20 What is visual to the eye through, is not
as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, always reflective of the real cause behind. For instance, one who hears a gunshot
such as an armed invasion, attack by bandits, governmental prohibitions, robbery, and then sees a wounded person, cannot always definitely conclude that a third
etc." 11 person shot the victim. It could have been self-inflicted or caused accidentally by
a stray bullet. The relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was Private respondents failed to adduce adequate and competent proof of the
conducted to determine the real cause of the partial unroofing of petitioner's pecuniary loss they actually incurred.26 It is not enough that the damage be
school building. Private respondents did not even show that the plans, capable of proof but must be actually proved with a reasonable degree of
specifications and design of said school building were deficient and defective. certainty, pointing out specific facts that afford a basis for measuring whatever
Neither did they prove any substantial deviation from the approved plans and compensatory damages are borne.27 Private respondents merely submitted an
specifications. Nor did they conclusively establish that the construction of such estimated amount needed for the repair of the roof their subject building. What
building was basically flawed. 21 is more, whether the "necessary repairs" were caused ONLY by petitioner's alleged
On the other hand, petitioner elicited from one of the witnesses of private negligence in the maintenance of its school building, or included the ordinary
respondents, city building official Jesus Reyna, that the original plans and design wear and tear of the house itself, is an essential question that remains
of petitioner's school building were approved prior to its construction. Engr. Reyna indeterminable.
admitted that it was a legal requirement before the construction of any building The Court deems unnecessary to resolve the other issues posed by petitioner.
to obtain a permit from the city building official (city engineer, prior to the As regards the sixth issue, however, the writ of execution issued on April 1, 1993
passage of the Building Act of 1977). In like manner, after construction of the by the trial court is hereby nullified and set aside. Private respondents are
building, a certification must be secured from the same official attesting to the ordered to reimburse any amount or return to petitioner any property which they
readiness for occupancy of the edifice. Having obtained both building permit and may have received by virtue of the enforcement of said writ.
certificate of occupancy, these are, at the very least, prima facie evidence of the
regular and proper construction of subject school building. 22 WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED.
The complaint of private respondents in Civil Case No. 7314 before the trial
Furthermore, when part of its roof needed repairs of the damage inflicted by court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993
typhoon "Saling", the same city official gave the go-signal for such repairs — in said case is SET ASIDE. Accordingly, private respondents are ORDERED to return
without any deviation from the original design — and subsequently, authorized the to petitioner any amount or property received by them by virtue of said writ.
use of the entire fourth floor of the same building. These only prove that subject Costs against the private respondents.
building suffers from no structural defect, contrary to the report that its "U-
shaped" form was "structurally defective." Having given his unqualified SO ORDERED.
imprimatur, the city building official is presumed to have properly performed his Narvasa, C.J., Romero and Kapunan, JJ., concur.
duties 23 in connection therewith.
In addition, petitioner presented its vice president for finance and administration # Footnotes
who testified that an annual maintenance inspection and repair of subject school 1 Rollo, pp. 28-41.
building were regularly undertaken. Petitioner was even willing to present its 2 Ibid., p. 42.
maintenance supervisor to attest to the extent of such regular inspection but 3 Seventh Division, composed of J. Jose dela Rama, ponente;
private respondents agreed to dispense with his testimony and simply stipulated with JJ. Emeterio C. Cui (chairman) and Eduardo G.
that it would be corroborative of the vice president's narration. Montenegro, concurring.
4 CA Decision, p. 13; Rollo, p. 40.
Moreover, the city building official, who has been in the city government service 5 Records, pp. 127-128.
since 1974, admitted in open court that no complaint regarding any defect on the 6 Ibid., pp. 1-3.
same structure has ever been lodged before his office prior to the institution of 7 CA, rollo, pp. 63-69.
the case at bench. It is a matter of judicial notice that typhoons are common 8 Rollo, pp. 20-21.
occurrences in this country. If subject school building's roofing was not firmly 9 Tolentino, Civil Code of the Philippines, 1991 ed., Col IV, p.
anchored to its trusses, obviously, it could not have withstood long years and 126.
several typhoons even stronger than "Saling." 10 Ibid.
In light of the foregoing, we find no clear and convincing evidence to sustain the 11 Ibid.
judgment of the appellate court. We thus hold that petitioner has not been shown 12 Ibid., p. 130, citing Tan Chiong vs. Inchausti, 22 Phil 152,
negligent or at fault regarding the construction and maintenance of its school 1912. Nakpil & Sons vs. Court of Appeals, 144 SCRA 596, 607,
building in question and that typhoon "Saling" was the proximate cause of the October 3, 1986. See also Metal Forming Corporation vs. Office
damage suffered by private respondents' house. of the President, 247 SCRA 731, 728-739, August 28, 1995.
With this disposition on the pivotal issue, private respondents' claim for actual 13 Nakpil & Sons, vs. Court of Appeals, Ibid., pp. 606-607. See
and moral damages as well as attorney's fees must fail. 24 Petitioner cannot be also Ilocos Norte Electric Co. vs. Court of Appeals, 179 SCRA 5,
made to answer for a purely fortuitous event. 25 More so because no bad faith or 15, November 6, 1989.
willful act to cause damage was alleged and proven to warrant moral damages. 14 Fuentes vs. Court of Appeals, 268 SCRA 703, February 26,
1997; Atlantic Gulf & Pacific Company of Manila, Inc. vs. Court
of Appeals, 247 SCRA 606, August 23, 1995; Acebedo Optical
Co., vs. Court of Appeals, 250 SCRA 409, November 29, 1995.
15 Nakpil & Sons, vs. Court of Appeals, supra, p. 606, citing 1
CJS 1174.
16 Batangas Laguan Tayabas Bus Co. vs. Intermediate Appellate
Court, 167 SCRA 379, 386, November 14, 1988.
17 Valenzuela vs. Court of Appeals, 253 SCRA 303, February 7,
1996. cf. Quibal vs. Sandiganbayan, 244 SCRA 224, May 22,
1195; Citibank, NA vs. Gatchalian, 240 SCRA 212, January 18,
18 Layugan vs. Intermediate Appellate Court, 167 SCRA 363,
372-273, November 14, 1988; Philippine Bank of Commerce vs.
Court of Appeals, GR No. 97626, March 14, 1997.
19 Philippine Long Distance Telephone Co., Inc. vs. Court of
Appeals, 178 SCRA 94, 106, September 29, 1989, citing Barcelo
vs. manila Electric Railroad & Light Co., 29 Phil 351, January 28,
20 Webster's Third New International Dictionary, 1971 ed.;
Moreno, Philippine Law Dictionary, 2nd ed.
21 CF, Nakpil & Sons vs. Court of Appeals, supra. See
also Quisumbing Sr. vs. Court of Appeals, 189 SCRA 605,
September 14, 1990.
22 cf. Yap Kim Chuan vs. Tiaoqui, 31 Phil 433, September 18,
23 Tatad vs. Garcia Jr., 243 SCRA 436, April 6, 1995; People vs.
Figueroa, 248 SCRA 679, October 2, 1995.
24 Toyota Shaw, Inc. vs. Court of Appeals, 244 SCRA 320, May
23, 1995; Custodio vs. Court of Appeals, 253, SCRA 483,
February 9, 1996; Syquia vs. Court of Appeals, 217 SCRA 624,
January 27, 1993.
25 Itan Chiong vs. Inchausti, supra.
26 Baliwag Transit, Inc. vs. Court of Appeals, 256 SCRA 746, May
15, 1996.
27 Del Mundo vs. Court of Appeals, 240 SCRA 348, January 20,
EN BANC This opinion, however, appears to have been rendered in a case where an animal
G.R. No. L-2075 November 29, 1949 caused injury to a stranger or third person. It is therefore no authority for a case
like the present where the person injured was the caretaker of the animal. The
MARGARITA AFIALDA, plaintiff-appellant, distinction is important. For the statute names the possessor or user of the animal
vs. as the person liable for "any damages it may cause," and this for the obvious
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees. reason that the possessor or user has the custody and control of the animal and is
therefore the one in a position to prevent it from causing damage.
Nicolas P. Nonato for appellant. In the present case, the animal was in custody and under the control of the
Gellada, Mirasol and Ravena for appellees. caretaker, who was paid for his work as such. Obviously, it was the caretaker's
business to try to prevent the animal from causing injury or damage to anyone,
REYES, J.: including himself. And being injured by the animal under those circumstances,
This is an action for damages arising from injury caused by an animal. The was one of the risks of the occupation which he had voluntarily assumed and for
complaint alleges that the now deceased, Loreto Afialda, was employed by the which he must take the consequences.
defendant spouses as caretaker of their carabaos at a fixed compensation; that In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries
while tending the animals he was, on March 21, 1947, gored by one of them and (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his
later died as a consequence of his injuries; that the mishap was due neither to his master had asked him to take to his establishment was by said tribunal declared
own fault nor to force majeure; and that plaintiff is his elder sister and heir to be "a veritable accident of labor" which should come under the labor laws
depending upon him for support. rather than under article 1905 of the Civil Code. The present action, however, is
Before filing their answer, defendants moved for the dismissal of the complaint not brought under the Workmen's Compensation Act, there being no allegation
for lack of a cause of action, and the motion having been granted by the lower that, among other things, defendant's business, whatever that might be, had a
court, plaintiff has taken this appeal. gross income of P20,000. As already stated, defendant's liability is made to rest on
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, article 1905 of the Civil Code. but action under that article is not tenable for the
which reads: reasons already stated. On the other hand, if action is to be based on article 1902
of the Civil Code, it is essential that there be fault or negligence on the part of
The possessor of an animal, or the one who uses the same, is liable for the defendants as owners of the animal that caused the damage. But the
any damages it may cause, even if such animal should escape from him complaint contains no allegation on those points.
or stray away.
There being no reversible error in the order appealed from, the same is hereby
This liability shall cease only in case, the damage should arise from force affirmed, but without costs in view of the financial situation of the appellant.
majeure or from the fault of the person who may have suffered it.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres,
The question presented is whether the owner of the animal is liable when damage JJ., concur.
is caused to its caretaker.
The lower court took the view that under the above-quoted provision of the Civil
Code, the owner of an animal is answerable only for damages caused to a
stranger, and that for damage caused to the caretaker of the animal the owner
would be liable only if he had been negligent or at fault under article 1902 of the
same code. Claiming that the lower court was in error, counsel for plaintiff
contends that the article 1905 does not distinguish between damage caused to the
caretaker and makes the owner liable whether or not he has been negligent or at
fault. For authority counsel cites the following opinion which Manresa quotes from
a decision of the Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que la
que, clara y evidentemente, se deriva de sus terminos literales,
bastando, segun el mismo, que un animal cause perjuicio para que nasca
la responsibilidad del dueno, aun no imputandose a este ninguna clase de
culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal
concepto de dueno es suficiente para que arrastre las consecuencias
favorables o adversas de esta clase de propiedad, salvo la exception en
el mismo contenida. (12 Manresa, Commentaries on the Spanish
CivilCode, 573.)
SECOND DIVISION When Antonio Yabes was informed by Ernesto that his mother-in law had
G.R. No. L-53401 November 6, 1989 been electrocuted, he acted immediately. With his wife Jane, together
with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, request the police to ask the people of defendant Ilocos Norte Electric
vs. Company or INELCO to cut off the electric current. Then the party waded
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN to the house on Guerrero Street. The floodwater was receding and the
YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA lights inside the house were out indicating that the electric current had
JUAN, respondents. been cut off in Guerrero. Yabes instructed his boys to fish for the body of
the deceased. The body was recovered about two meters from an
Herman D. Coloma for petitioner. electric post.
Glicerio S. Ferrer for private respondents. In another place, at about 4:00 A.M. on that fateful date, June 29, 1967,
Engineer Antonio Juan, Power Plant Engineer of the National Power
PARAS, J.: Corporation at the Laoag Diesel-Electric Plant, noticed certain
Sought to be reversed in this petition is the Decision * of the respondent