EN BANCG.R. No. L-12219            March 15, 1918

AMADO PICART, plaintiff-appellant, vs.

FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case

we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that

harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the

dangerous condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur. Johnson, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance"

rule is applicable. In other words, when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

EN BANCG.R. No. L-4977             March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs.

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

W. H. Lawrence, for appellant.W. L. Wright, for appellee.

CARSON, J.:

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

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

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

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

After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then

made a series of experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for his wounds.

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

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

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

The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps which were found by

plaintiff on defendant company's premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found.

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

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

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and

knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees.

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

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

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

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

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

xxx             xxx             xxx

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

xxx             xxx             xxx

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

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

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

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

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

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

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

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

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

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

In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a place where the railroad company knew, or had good reason to suppose, children would be likely to come,

and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.

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

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

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

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the

rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."

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

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

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

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

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

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

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

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

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific

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

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

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to

the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.

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

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing

himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became frightened and ran away.

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

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

capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

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

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

The Patidas contain the following provisions:

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

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

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

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

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

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

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

See also judgment of October 21, 1903.

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

And again —

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

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

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

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

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

require the application of "the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident.

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

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

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

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

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where the judgment will be entered in favor

of the defendant for the costs in first instance and the complaint dismissed without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.Johnson, J., concurs in the result.

Footnotes1 Phil. Rep., 85.

FIRST DIVISIONG.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, 

vs.HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and

CRISELDA R. AGUILAR, respondents. DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor. 3

ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old. 4

The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued by ZHIENETH's attending doctor described the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's fees and an unspecified amount for loss of income and exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was malicious for which they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and exemplary damages and attorney's fees in their favor.

In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents' witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence contributed to ZHIENETH's accident.

In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. 8The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.

Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance

of the counter; and (4) petitioners were not liable for the death of ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also, the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part of res gestaebut also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.

As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.

The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted "L" 11 with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the attention of the management the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the

petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some time without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision, 13 thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorney's fees; and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals' resolution 14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate

cause was ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDA's contributory negligence, through her failure to provide the proper care and attention to her child while inside the store, nullified private respondents' claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he testified; hence, his testimony might have been tarnished by ill-feelings against them.

For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the hospital's emergency room should receive credence; and finally, ZHIENETH's part of the res gestae declaration "that she did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens." 16

On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. 17 Negligence is "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." 18

Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. 19

The test in determining the existence of negligence is enunciated in the landmark case of Plicart v. Smith, 20 thus: Did the defendant in doing the

alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. 21

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?

A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did you do," the child said "nothing, I did not come near the counter and the counter just fell on me."

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22

This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. 23 All that is required for their admissibility as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales' testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counter's base.

Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter and since not nailed and it was only standing on the floor, it was shaky.

xxx xxx xxx

Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.

xxx xxx xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display decorations on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he told me "better inform also the company about it." And since the company did not do anything about the counter, so I also did not do anything about the counter. 24 [Emphasis supplied]

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983?

xxx xxx xxx

A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky.

Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?

A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?" And she even got angry at me when I told her that.

xxx xxx xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that (sic)

xxx xxx xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the accident happened. 25 [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the store's employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's testimonies were blemished by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were already separated from the company at the time their testimonies were offered in court — was but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. 26However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case.27 In the instant case, petitioners failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and aquasi-delict and

required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not secured. 30

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA momentarily released the child's hand from her clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA. 32 The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

Footnotes1 Annex "A" of Petition; Rollo, 36-47. Per Justice Godardo A. Jacinto, with Justices Salome A. Montoya and Maximiano C. Asuncion, concurring.2 Annex "B" of Petition; Rollo, 49.3 TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31.4 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].28 I PHILIPPINE LAW ON TORTS AND DAMAGES, 70-71 (1993).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 3 meters in width; with four (4) square legs. Its top was made of 5 1/2 inch thick wood covered by formica about 3/4 inch thick.31 TSN, 13 February 15, 20.32 Ibid., 11, 22.

EN BANCG.R. No. L-35283             November 5, 1932

JULIAN DEL ROSARIO, plaintiff-appellant, vs.

MANILA ELECTRIC COMPANY, defendant-appellee.Vicente Sotto for appellant.Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee. STREET, J.:

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

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

          At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all members of the second grade in the public school. These other two boys were Jose Salvador, of the age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire was down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, happened to be the son of an electrician and his father had cautioned him never to touch a broken electrical wire, as it might have a current. Jose therefore stopped Saturnino, telling him that the wire might be charged. Saturnino yielded to this admonition and desisted from his design, but Alberto del Rosario, who was somewhat ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace tiempo cojo alambres"). Jose Salvador

rejoined that he should into touch wires as they carry a current, but Alberto, no doubt feeling that he was challenged in the matter, put out his index finger and touch the wire. He immediately fell face downwards, exclaiming "Ay! madre". The end of the wire remained in contact with his body which fell near the post. A crowd soon collected, and some one cut the wire and disengaged the body. Upon being taken to St. Luke's Hospital the child was pronounced dead.

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

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

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

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

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

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

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

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

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

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

FIRST DIVISIONG.R. No. L-33722 July 29, 1988

FEDERICO YLARDE and ADELAIDA DORONIO petitioners, vs.

EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.

Buenaventura C. Evangelista for petitioners.Modesto V. Cabanela for respondent Edgardo Aquino.Manuel P. Pastor for respondent Mauro Soriano. GANCAYCO, J.:In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan, We are again caned upon determine the responsibility of the principals and teachers towards their students or pupils.In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution located in Tayug, Pangasinan-Private respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself.Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. The work was left unfinished. The following day, also after classes, private respondent Aquino called four of the original eighteen pupils to continue the digging. These four pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the digging.When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out of the hole. Then, said private respondent left the children to level the loose soil around the open hole while he went to see Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the key to the school workroom where he could get some rope. Before leaving. , private respondent Aquino allegedly told the children "not to touch the stone."A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara

were able to scramble out of the excavation on time but unfortunately fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a result thereof, Ylarde sustained the following injuries:

1. Contusion with hematoma, left inguinal region and suprapubic region.2. Contusion with ecchymosis entire scrotal region.3. Lacerated wound, left lateral aspect of penile skin with phimosis4. Abrasion, gluteal region, bilateral.5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters.6. Fracture, simple, symphesis pubis7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its neck.

REMARKS:1. Above were incurred by crushing injury.2. Prognosis very poor.

(Sgd.) MELQUIADES A. BRAVO

Physician on Duty. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is in line with their course called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was due to his own reckless imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court.

Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged negligence that caused their son's death while the complaint against respondent Soriano as the head of school is founded on Article 2180 of the same Code.

Article 2176 of the Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre- existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

On the other hand, the applicable provision of Article 2180 states:

Art. 2180. x x x

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. 3

The issue to be resolved is whether or not under the cited provisions, both private respondents can be held liable for damages.

As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. This Court went on to say that in a school of arts and trades, it is only the head of the school who can be held liable. In the same case, We explained:

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of establishments of arts and trades to the word "apprentices."

Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held liable for the reason that the school he heads is an academic school and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent Soriano did not give any instruction regarding the digging.

From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his supervision over them and his failure to take the necessary precautions to prevent any injury on their persons. However, as earlier pointed out, petitioners base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180.

With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages.

From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers and instead

utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance.

The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence, It should be remembered that he was only ten years old at the time of the incident, As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear that he only did what any other ten-year old child would do in the same situation.

In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. 5 The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the picture showing the excavation and the huge concrete block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year

old grade-four pupils. We cannot comprehend why the lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from the principal requiring what the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. 8 Furthermore, the excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so, leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made sure that the children are protected from all harm in his company.

We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way private respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the respondent court is REVERSED and SET ASIDE and another judgment is hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.

Narvasa Cruz, Griño-Aquino and Medialdea, JJ., concur.

 Footnotes

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

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

PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.Benj. S. Ohnick for appellee. STREET, J.:

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

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

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

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

          Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end in

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

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

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

          As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occured, as the court found, was P10,000.

          A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, with the result that when the fuel

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

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

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

          The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of 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 corporation and had gone back to the United States. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked.

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

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

EN BANCG.R. No. L-12858            January 22, 1918

THE UNITED STATES, plaintiff-appellee, vs.

SANTIAGO PINEDA, defendant-appellant.

Francisco and Lualhati for appellant. Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy Law.

Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read — "clorato de potasa — 120 gramos — en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda — Clorato potasa — 120.00 — en seis papeles — para caballo — Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the potassium chlorate which he had asked for, put two of the packages in water the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Peña and Darjuan, of the Bureau of Science, on analysis found that the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning.

Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What the appellant is here relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and

fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has held that:

On the trial of a criminal case the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.

Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored.

Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)

The second assignment of error is that the lower court erred in finding that the substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof demonstrates the contrary.

The third and fourth assignments of error that the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment contains the points we should consider, including, we may remark, a somewhat difficult question concerning which the briefs have given little assistance.

The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative Code. The law provides for a board of pharmaceutical examiners, and the examination and registration of pharmacists, and finally contains sundry provisions relative to the practice of pharmacy. High qualification for applicants for the pharmaceutical; examination are established. The program of subjects for the examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the following term:

Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name, direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this section if it differs from

the standard of quality or purity given in the United States Pharmacopoeia.

The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by providing that:

Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or violating any provisions of said law for which no specific penalty s provided shall, for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not more than ninety days, or both, in the discretion of the court.

These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe.

Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective?

Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchased thereby suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law.

The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a special high degree," "the highest degree of care known to practical men." Even under the first conservative expression, "ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not be constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and

Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.

Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said:

As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or send to a patient one drug for another, as arsenic for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things, he cannot escape civil responsibility, upon the alleged pretext that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.)

Under the other conception, in which the proof of negligence is considered as material, where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facienegligence, placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate," and expect to escape responsibility on plea of mistake. His mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said:

It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect. We cannot say that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mistakes by which he

furnishes a customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)

The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.

In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has repeatedly been termed the leading case on the subject and which has been followed by the United States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and sent it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules. For example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues in consequence, have been held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)

Bearing these general principles in mind, and remembering particularly the care and skill which are expected of druggist, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsify, deception, and injury must be present-but not scienter.

In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake.

The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the cost of this instance against the appellant, without prejudice to any civil action which may be instituted. So ordered.

Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ., concur.

THIRD DIVISIONG.R. No. 102383 November 26, 1992

BANK OF THE PHILIPPINE ISLANDS, petitioner, vs.

THE HON. COURT OF APPEALS (SEVENTH JUDICIAL), HON. JUDGE REGIONAL TRIAL COURT OF MAKATI, BRANCH 59, CHINA BANKING

CORP., and PHILIPPINE CLEARING HOUSE CORPORATION, respondents.

 GUTIERREZ, JR., J.:

The present petition asks us to set aside the decision and resolution of the Court of Appeals in CA-G.R. SP No. 24306 which affirmed the earlier decision of the Regional Trial Court of Makati, Branch 59 in Civil Case No. 14911 entitled Bank of the Philippine Islands v. China Banking Corporation and the Philippine Clearing House Corporation, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered dismissing petitioner-appellant's (BPI's) appeal and affirming the appealed order of August 26, 1986 (Annex B of BPI's Petition) with modification as follows:

1. Ordering the petitioner-appellant (BPI) to pay respondent-appellee (CBC):

(a) the amount of One Million Two Hundred Six Thousand, Six Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58) with interest at the legal rate of twelve percent (12%) per annum starting August 26, 1986, the date when the order of the PCHC Board of Directors was issued until the full amount is finally paid; and

(b) the amount of P150,000.00 representing attorney's fees;

2. BPI shall also bear 75% or P5,437.50 and CBC, 25% or P1,812.50 of the cost of the arbitration proceedings amounting to P7,250.00;

3. The ownership of respondent-appellee (CBC) of the other sum of One Million Two Hundred Six Thousand Six Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58) previously credited to its clearing account on August 12, 1983 per PCHC Stockholders' Resolution No. 6083 dated April 6, 1983, is hereby confirmed.

4. The PCHC is hereby directed to immediately debit the clearing account of BPI the sum of One Million Two Hundred Six Thousand Six Hundred Pesos and Fifty Eight Centavos (P1,206,607.58) together with its interest as decreed in paragraph 1 (a) herein above stated and credit the same to the clearing account of CBC;

5. The PCHC's counterclaim and cross-claim are dismissed for lack of merit; and

6. With costs against the petitioner-appellant. (Rollo, pp. 161-162)

The controversy in this case arose from the following facts as found by the Arbitration Committee of respondent Philippine Clearing House Corporation in Arbicom Case No. 83-029 entitled Bank of the Philippine Island v. China Banking Corporation:

The story underlying this case began in the afternoon of October 9, 1981 with a phone call to BPI's Money Market Department by a woman who identified herself as Eligia G. Fernando who had a money market placement as evidenced by a promissory note with a maturity date of November 11, 1981 and a maturity value of P2,462,243.19. The caller wanted to preterminate the placement, but Reginaldo Eustaquio, Dealer Trainee in BPI's Money Market Department, who received the call and who happened to be alone in the trading room at the time, told her "trading time" was over for the day, which was a Friday, and suggested that she call again the following week. The promissory note the caller wanted to preterminate was a roll-over of an earlier 50-day money market placement that had matured on September 24, 1981.

Later that afternoon, Eustaquio conveyed the request for pretermination to the officer who before had handled Eligia G. Fernando's account, Penelope Bulan, but Eustaquio was left to attend to the pretermination process.

The next Monday, October 12, 1981, in the morning, the caller of the previous Friday followed up with Eustaquio, merely by phone again, on the pretermination of the placement. Although not familiar with the voice of the real Eligia G. Fernando, Eustaquio "made certain" that the caller was the real Eligia G. Fernando by "verifying" that the details the caller gave about the placement tallied with the details in "the ledger/folder" of the account. Eustaquio knew the real Eligia G. Fernando to be the Treasurer of Philippine American Life Insurance Company (Philamlife) since he was handling Philamlife's corporate money market account. But neither Eustaquio nor Bulan who originally handled Fernando's account, nor anybody else at BPI, bothered to call up Fernando at her Philamlife office to verify the request for pretermination.

Informed that the placement would yield less than the maturity value because of its pretermination, the caller insisted on the pretermination just the same and asked that two checks be issued for the proceeds, one for

P1,800,000.00 and the second for the balance, and that the checks be delivered to her office at Philamlife.

Eustaquio, thus, proceeded to prepare the "purchase order slip" for the requested pretermination as required by office procedure, and from his desk, the papers, following the processing route, passed through the position analyst, securities clerk, verifier clerk and documentation clerk, before the two cashier's checks, nos. 021759 and 021760 for P1,800,000.00 and P613,215.16, respectively, both payable to Eligia G. Fernando, covering the preterminated placement, were prepared. The two cashier's checks, together with the papers consisting of the money market placement was to be preterminated and the promissory note (No. 35623) to be preterminated, were sent to Gerlanda E. de Castro and Celestino Sampiton, Jr., Manager and Administrative Assistant, respectively, in BPI's Treasury Operations Department, both authorized signatories for BPI, who signed the two checks that very morning. Having been singed, the checks now went to the dispatcher for delivery.

Later in the same morning, however, the same caller changed the delivery instructions; instead of the checks being delivered to her office at Philamlife, she would herself pick up the checks or send her niece, Rosemarie Fernando, to pick them up. Eustaquio then told her that if it were her niece who was going to get the checks, her niece would have to being a written authorization from her to pick up the checks. This telephone conversation ended with the caller's statement that "definitely" it would be her niece, Rosemarie Fernando, who would pick up the checks. Thus, Eustaquio had to hurriedly go to the dispatcher, Bernardo Laderas, to tell him of the new delivery instructions for the checks; in fact, he changed the delivery instruction on the purchase order slip, writing thereon "Rosemarie Fernando release only with authority to pick up.

It was, in fact Rosemarie Fernando who got the two checks from the dispatcher, as shown by the delivery receipt. Actually, as it turned out, the same impersonated both Eligia G. Fernando and Rosemarie Fernando. Although the checks represented the termination proceeds of Eligia G. Fernando's placement, not just a roll-over of the placement, the dispatcher failed to get or to require the surrender of the promissory note evidencing the placement. There is also no showing that Eligia G. Fernando's purported signature on the letter requesting the pretermination and the latter authorizing Rosemarie Fernando to pick up the two checks, both of which letters were presumably handed to the dispatcher

by Rosemarie Fernando, was compared or verified with Eligia G. Fernando's signature in BPI's file. Such purported signature has been established to be forged although it has a "close similarity" to the real signature of Eligia G. Fernando (TSN of January 15, 1985, pp. 24 and 26).

The story's scene now shifted when, in the afternoon of October 13, 1981, a woman who represented herself to be Eligia G. Fernando applied at CBC's Head Office for the opening of a current account.

She was accompanied and introduced to Emily Sylianco Cuaso, Cash Supervisor, by Antonio Concepcion whom Cuaso knew to have opened, earlier that year, an account upon the introduction of Valentin Co, a long-standing "valued client" of CBC. What Cuaso indicated in the application form, however, was that the new client was introduced by Valentin Co, and with her initials on the form signifying her approval, she referred the application to the New Accounts Section for processing. As finally proceeds, the application form shows the signature of "Eligia G. Fernando", "her" date of birth, sex, civil status, nationality, occupation ("business woman"), tax account number, and initial deposit of P10,000.00. This final approval of the new current account is indicated on the application form by the initials of Regina G. Dy, Cashier, who did not interview the new client but affixed her initials on the application form after reviewing it. The new current account was given the number: 26310-3.

The following day, October 14, 1981, the woman holding herself out as Eligia G. Fernando deposited the two checks in controversy with Current Account No. 126310-3. Her endorsement on the two checks was found to conform with the depositor's specimen signature. CBC's guaranty of prior endorsements and/or lack of endorsement was then stamped on the two checks, which CBC forthwith sent to clearing and which BPI cleared on the same day.

Two days after, withdrawals began on Current Account No. 26310-3: On October 16, 1981, by means of Check No. 240005 dated the same day for P1,000,000.00, payable to "cash", which the woman holding herself out as Eligia G. Fernando encashed over the counter, and Check No. 240003 dated October 15, 1981 for P48,500.00, payable to "cash" which was received through clearing from PNB Pasay Branch; on October 19, 1981, by means of Check No. 240006 dated the same day for P1,000,000.00, payable to "cash," which the woman identifying herself as Eligia G. Fernando encashed over the counter; on October 22, 1981, by means of Check No. 240007 dated the same day for P370,000.00,

payable to "cash" which the woman herself also encashed over the counter; and on November 4, 1981, by means of Check No. 240001 dated November 3, 1981 for P4,100.00, payable to "cash," which was received through clearing from Far East Bank.

All these withdrawals were allowed on the basis of the verification of the drawer's signature with the specimen signature on file and the sufficiency of the funds in the account. However, the balance shown in the computerized teller terminal when a withdrawal is serviced at the counter, unlike the ledger or usual statement prepared at month-end, does not show the account's opening date, the amounts and dates of deposits and withdrawals. The last withdrawal on November 4, 1981 left Current Account No. 26310-3 with a balance of only P571.61.

The day of reckoning came on November 11, 1981, the maturity date of Eligia G. Fernado's money market placement with BPI, when the real Eligia G. Fernando went to BPI for the roll-over of her placement. She disclaimed having preterminated her placement on October 12, 1981. She executed an affidavit stating that while she was the payee of the two checks in controversy, she never received nor endorsed them and that her purported signature on the back of the checks was not hers but forged. With her surrender of the original of the promissory note (No. 35623 with maturity value of P2,462,243.19) evidencing the placement which matured that day, BPI issued her a new promissory note (No. 40314 with maturity date of December 23, 1981 and maturity value of P2,500.266.77) to evidence a roll-over of the placement.

On November 12, 1981, supported by Eligia G. Fernando's affidavit, BPI returned the two checks in controversy to CBC for the reason "Payee's endorsement forged". A ping-pong started when CBC, in turn, returned the checks for reason "Beyond Clearing Time", and the stoppage of this ping-pong, as we mentioned at the outset, prompted the filing of this case.

Investigation of the fraud by the Presidential Security Command led to the filing of criminal actions for "Estafa Thru Falsification of Commercial Documents" against four employees of BPI, namely Quirino Victorio, Virgilio Gayon, Bernardo Laderas and Jorge Atayan, and the woman who impersonated Eligia G. Fernando, Susan Lopez San Juan. Victorio and Gayon were both bookkeepers in BPI's Money Market Operations Department, Laderas was a dispatcher in the same department. . . . (Rollo, pp. 74-79)

The Arbitration Committee ruled in favor of petitioner BPI. The dispositive portion of the decision reads:

WHEREFORE, we adjudge in favor of the Bank of the Philippine Islands and hereby order China Banking Corporation to pay the former the amount of P1,206,607.58 with interest thereon at 12% per annum from August 12, 1983, or the date when PCHC, pursuant to its procedure for compulsory arbitration of the ping-pong checks under Stockholders' Resolution No. 6-83 was implemented, up to the date of actual payment.

Costs of suit in the total amount of P7,250.00 are to be assessed the litigant banks in the following proportion:

a) Plaintiff BPI —– P1,812.50

b) Defendant China — P5,437.50

Total Assessment — P7,250.00

conformably with PCHC Resolution Nos. 46-83 dated October 25, 1983 and 4-85 dated February 25, 1985.

The PCHC is hereby directed to effect the corresponding entries to the litigant banks' clearing accounts in accordance with the foregoing decision. (Rollo, pp. 97-98)

However, upon motion for reconsideration filed by respondent CBC, the Board of Directors of the PCHC reversed the Arbitration Committee's decision in its Order, the dispositive portion of which reads:

WHEREFORE, the Board hereby reconsiders the Decision of the Arbitration Committee dated March 24, 1986 in Arbicom Case No. 183-029 and in lieu thereof, one is rendered modifying the decision so that the Complaint of BPI is dismissed, and on the Counterclaim of CBC, BPI is sentenced to pay CBC the sum of P1,206,607.58. In view of the facts, no interest nor attorney's fees are awarded. BPI shall also bear 75% or P5,437.50 and CBC, 25% or P1,812.50 of the cost of the Arbitration proceedings amounting to P7,250.00.

The PCHC is hereby directed to debit the clearing account of the BPI the sum of P1,206,607.58 and credit the same to that of CBC. The cost of Arbitration proceedings are to be debited from the accounts of the parties in the proportion above stated. (Rollo, pp. 112-113)

BPI then filed a petition for review of the abovestated order with the Regional Trial Court of Makati. The trial court dismissed the petition but modified the order as can be gleaned from the dispositive portion of its decision quoted earlier.

Not satisfied with the trial court's decision petitioner BPI filed with us a petition for review on certiorari under Rule 45 of the Rules of Court. The case was docketed as G.R. No. 96376. However, in a Resolution dated February 6, 1991, we referred the case to the Court of Appeals for proper

determination and disposition. The appellate court affirmed the trial court's decision.

Hence, this petition.

In a resolution dated May 20, 1992 we gave due course to the petition:

Petitioner BPI now asseverates:

I

THE DECISION AND RESOLUTION OF THE RESPONDENT COURT LEAVES THE UNDESIRABLE RESULT OF RENDERING NUGATORY THE VERY PURPOSE FOR THE UNIFORM BANKING PRACTICE OF REQUIRING THE CLEARING GUARANTEE OF COLLECTING BANKS.

II

CONTRARY TO THE RULING OF THE RESPONDENT COURT, THE PROXIMATE CAUSE FOR THE LOSS OF THE PROCEEDS OF THE TWO CHECKS IN QUESTION WAS THE NEGLIGENCE OF THE EMPLOYEES OF CBC AND NOT BPI; CONSEQUENTLY, EVEN UNDER SECTION 23 OF THE NEGOTIABLE INSTRUMENTS LAW, BPI WAS NOT PRECLUDED FROM RAISING THE DEFENSE OF FORGERY.

III

THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN FAILING TO APPRECIATE THE FACT THAT CBC HAD THE "LAST CLEAR CHANCE" OF AVOIDING THE LOSS OCCASIONED BY THE FRAUDULENT ACTS INVOLVED IN THE INSTANT CASE. (Rollo, p. 24)

The main issues raised in the assignment of errors are: When a bank (in this case CBC) presents checks for clearing and payment, what is the extent of the bank's warranty of the validity of all prior endorsements stamped at the back of the checks? In the event that the payee's signature is forged, may the drawer/drawee bank (in this case BPI) claim reimbursement from the collecting bank [CBC] which earlier paid the proceeds of the checks after the same checks were cleared by petitioner BPI through the PCHC?

Anent the first issue, petitioner BPI contends that respondent CBC's clear warranty that "all prior endorsements and/or lack of endorsements guaranteed" stamped at the back of the checks was an unrestrictive clearing guaranty that all prior endorsements in the checks are genuine. Under this premise petitioner BPI asserts that the presenting or collecting bank, respondent CBC, had an unquestioned liability when it turned out that the payee's signature on the checks were forged. With these circumstances, petitioner BPI maintains that considerations of relative negligence becomes totally irrelevant.

In sum, petitioner BPI theorizes that the Negotiable Instruments Law, specifically Section 23 thereof is not applicable in the light of the absolute liability of the representing or collecting bank as regards forged

endorsements in consonance with the clearing guarantee requirement imposed upon the presenting or collecting banks "as it is worded today."

Petitioner BPI first returned to CBC the two (2) checks on the ground that "Payee's endorsement (was) forged" on November 12, 1981. At that time the clearing regulation then in force under PCHC's Clearing House Rules and Regulations as revised on September 19, 1980 provides:

Items which have been the subject of material alteration or items bearing a forged endorsement when such endorsement is necessary for negotiation shall be returned within twenty four (24) hours after discovery of the alteration or the forgery, but in no event beyond the period prescribed by law for the filing of a legal action by the returning bank/branch institution or entity against the bank/branch, institution or entity sending the same. (Section 23)

In the case of Banco de Oro Savings and Mortgage Bank v. Equitable Banking Corporation (157 SCRA 188 [1988]) the clearing regulation (this is the present clearing regulation) at the time the parties' dispute occurred was as follows:

Sec. 21. . . . .

Items which have been the subject of material alteration or items bearing forged endorsement when such endorsement is necessary for negotiation shall be returned by direct presentation or demand to the Presenting Bank and not through the regular clearing house facilities within the period prescribed by law for the filing of a legal action by the returning bank/branch, institution or entity sending the same.

It is to be noted that the above-cited clearing regulations are substantially the same in that it allows a return of a check "bearing forged endorsement when such endorsement is necessary for negotiation" even beyond the next regular clearing although not beyond the prescriptive period "for the filing of a legal action by the returning bank."

Bearing in mind this similarity in the clearing regulation in force at the time the forged checks in the present case and the Banco de Oro case were dishonored and returned to the presenting or collecting banks, we can be guided by the principles enunciated in the Banco de Oro case on the relevance of negligence of the drawee vis-a-vis the forged checks.

The facts in the Banco de Oro case are as follows: Sometime in March, April, May and August 1983 Equitable Banking Corporation through its Visa Card Department drew six (6) crossed Manager's check with the total amount of Forty Five Thousand Nine Hundred and Eighty Two Pesos and Twenty Three Centavos (P45,982.23) and payable to certain member establishments of Visa Card. Later, the checks were deposited with Banco de Oro to the credit of its depositor, a certain Aida Trencio. Following normal procedures, and after stamping at the back of the checks the endorsements: "All prior and/or lack of endorsements guaranteed" Banco

de Oro sent the checks for clearing through the PCHC. Accordingly, Equitable Banking Corporation paid the checks; its clearing amount was debited for the value of the checks and Banco de Oro's clearing account was credited for the same amount. When Equitable Banking Corporation discovered that the endorsements at the back of the checks and purporting to be that of the payees were forged it presented the checks directly to Banco de Oro for reimbursement. Banco de Oro refused to reimburse Equitable Banking Corporation for the value of the checks. Equitable Banking Corporation then filed a complaint with the Arbitration Committees of the PCHC. The Arbiter, Atty. Ceasar Querubin, ruled in favor of Equitable Banking Corporation. The Board of Directors of the PCHC affirmed the Arbiter's decision. A petition for review of the decision filed by Banco de Oro with the Regional Trial Court of Quezon City was dismissed. The decision of the PCHC was affirmed in toto.

One of the main issues threshed out in this case centered on the effect of Banco de Oro's (representing or collecting bank) guarantee of "all prior endorsements and/or lack of endorsements" at the back of the checks. A corollary issue was the effect of the forged endorsements of the payees which were late discovered by the Equitable Banking Corporation (drawee bank) resulting in the latter's claim for reimbursement of the value of checks after it paid the proceeds of the checks.

We agreed with the following disquisition of the Regional Trial Court, to wit:

Anent petitioner's liability on said instruments, this court is in full accord with the ruling of the PCHC Board of Directors that:

In presenting the checks for clearing and for payment, the defendant made an express guarantee on the validity of "all prior endorsements." Thus, stamped at the back of the checks are the defendant's clear warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK OF ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff would not have paid on the checks.

No amount of legal jargon can reverse the clear meaning of defendant's warranty. As the warranty has proven to be false and inaccurate, the defendant is liable for any damage arising out of the falsity of its representation.

The principle of estoppel, effectively prevents the defendant from denying liability for any damage sustained by the plaintiff which, relying upon an action or declaration of the defendant, paid on the checks. The same principle of estoppel effectively prevents the defendant from denying the existence of the checks. (pp. 10-11, Decision, pp. 43-44, Rollo) (at pp. 194-195)

We also ruled:

Apropos the matter of forgery in endorsements, this Court has presently succintly emphasized that the collecting bank or last endorser generally suffers the loss

because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements. This is laid down in the case of PNB v. National City Bank. (63 Phil. 1711) In another case, this court held that if the drawee-bank discovers that the signature of the payee was forged after it has paid the amount of the check to the holder thereof, it can recover the amount paid from the collecting bank.

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The point that comes uppermost is whether the drawee bank was negligent in failing to discover the alteration or the forgery. (Emphasis supplied)

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The court reproduces with approval the following disquisition of the PCHC in its decision.

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III. Having Violated Its Warranty On Validity Of All Endorsements, Collecting Bank Cannot Deny Liability To Those Who Relied On Its Warranty.

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The damage that will result if judgment is not rendered for the plaintiff is irreparable. The collecting bank has privity with the depositor who is the principal culprit in this case. The defendant knows the depositor; her address and her history. Depositor is defendant's client. It has taken a risk on its depositor when it allowed her to collect on the crossed-checks.

Having accepted the crossed checks from persons other than the payees, the defendant is guilty of negligence; the risk of wrongful payment has to be assumed by the defendant. (Emphasis supplied, at pp. 198-202)

As can be gleaned from the decision, one of the main considerations in affirming the PCHC's decision was the finding that as between the drawee bank (Equitable Bank) and the representing or collecting bank (Banco de Oro) the latter was negligent and thus responsible for undue payment.

Parenthetically, petitioner BPI's theory that the present clearing guarantee requirement imposed on the representing or collecting bank under the PCHC rules and regulations is independent of the Negotiable Instruments Law is not in order.

Another reason why the petitioner's theory is uncalled for is the fact that the Negotiable Instruments Law (Act No. 2031) applied to negotiable instruments as defined under section one thereof. Undeniably, the

present case involves checks as defined by and under the coverage of the Negotiable Instruments Law. To affirm the theory of the petitioner would, therefore, violate the rule that rules and regulations implementing the law should conform to the law, otherwise the rules and regulations are null and void. Thus, we held Shell Philippines, Inc. v. Central Bank of the Philippines (162 SCRA 628 [1988]):

. . . while it is true that under the same law the Central Bank was given the authority to promulgate rules and regulations to implement the statutory provision in question, we reiterate the principle that this authority is limited only to carrying into effect what the law being implemented provides.

In People v. Maceren (79 SCRA 450, 458 and 460), this Court ruled that:

Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon v. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382,citing 12 C.J. 845-46. as to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).

xxx xxx xxx

. . . The rule or regulation should be within the scope of the statutory authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law the basic law prevails because said rule or regulation cannot go beyond

the terms and provisions of the basic law (People v. Lim 108 Phil. 1091). (at pp. 633-634)

Section 23 of the Negotiable Instruments Law states:

When signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative and no right to retain the instrument, or to give discharge therefore, or to enforce payment thereof, against any party thereto, can be acquired through or under such forged signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.

There are two (2) parts of the provision. The first part states the general rule while the second part states the exception to the general rule. The general rule is to the effect that a forged signature is "wholly inoperative", and payment made "through or under such signature" is ineffectual or does not discharge the instrument. The exception to this rule is when the party relying in the forgery is "precluded from setting up the forgery or want of authority. In this jurisdiction we recognize negligence of the party invoking forgery as an exception to the general rule. (See Banco de Oro Savings and Mortgage Bank v. Equitable Banking Corporation supra; Philippine National Bank v. Quimpo, 158 SCRA 582 [1988]; Philippine National Bank v. Court of Appeals, 25 SCRA 693 [1968]; Republic v. Equitable Banking Corporation, 10 SCRA 8 [1964]; National Bank v. National City Bank of New York, 63 Phil. 711 [1936]; San Carlos Milling Co. v. Bank of P.I., 59 Phil. 59 [1933]). In these cases we determined the rights and liabilities of the parties under a forged endorsement by looking at the legal effects of the relative negligence of the parties thereto.

In the present petition the payee's names in the two (2) subject checks were forged. Following the general rule, the checks are "wholly inoperative" and of no effect. However, the underlying circumstances of the case show that the general rule on forgery is not applicable. The issue as to who between the parties should bear the loss in the payment of the forged checks necessities the determination of the rights and liabilities of the parties involved in the controversy in relation to the forged checks.

The records show that petitioner BPI as drawee bank and respondent CBC as representing or collecting bank were both negligent resulting in the encashment of the forged checks.

The Arbitration Committee in its decision analyzed the negligence of the employees of petitioner BPI involved in the processing of the pre-termination of Eligia G. Fernando's money market placement and in the issuance and delivery of the subject checks in this wise:

a) The impostor could have been readily unmasked by a mere telephone call, which nobody in BPI bothered to make to Eligia G. Fernando, a vice-president of Philamlife (Annex C, p. 13).

b) It is rather curious, too, that the officer who used to handle Eligia G. Fernando's account did not do anything about the account's pre-termination (Ibid, p. 13).

c) Again no verification appears to have been made by (sic) Eligia G. Fernando's purported signature on the letter requesting the pre-termination and the letter authorizing her niece to pick-up the checks, yet, her signature was in BPI's file (Ibid., p. 13).

d) Another step that could have foiled the fraud, but which BPI neglected to take, was requiring before the two checks in controversy were delivered, the surrender of the promissory note evidencing the money market placement that was supposedly pre-terminated. (Rollo, p. 13).

The Arbitration Committee, however, belittled petitioner BPI's negligence compared to that of respondent CBC which it declared as graver and the proximate cause of the loss of the subject checks to the impostor who impersonated Eligia G. Fernando. Petitioner BPI now insists on the adoption of the Arbitration Committee's evaluation of the negligence of both parties, to wit:

a) But what about the lapses of BPI's employees who processed the pretermination of Eligia G. Fernando's placement and issued the checks? We do not think it was a serious lapse not to confirm the telephone request for pretermination purportedly made by Eligia G. Fernando, considering that it is common knowledge that business in the money market is done mostly by telephone. Then, too, the initial request of the caller was for the two checks representing the pretermination proceeds to be delivered to "her" office, meaning Eligia G. Fernando's office at Philamlife, this clever ruse must have put off guard the employee preparing the "purchase order slip", enough at least for him to do away with having to call Eligia G. Fernando at her office. (Annex C at p. 17).

b) We also do not think it unusual that Penelope Bulan, who used to handle Eligia G. Fernando's account, should do nothing about the request for pretermination and leave it to Eustaquio to process the pretermination. In a bank the of BPI, it would be quite normal for an officer to take over from another the handling of an account. (Ibid. p. 17)

c) The failure to verify or compare Eligia G. Fernando's purported signature on the letter requesting the pretermination and the letter authorizing the pick-up of the checks in controversy with her signature in BPI's file showed lack of care and prudence required by the circumstances, although it is doubtful that such comparison would have disclosed the deception

considering the "close similarity" between her purported signature and her signature in BPI's file. (Ibid., p. 17).

d) A significant lapse was, however, committed when the two checks in controversy were delivered without requiring the surrender of the promissory note evidencing the placement that was supposedly preterminated. Although, as we already said, it is hard to determine whether the failure to require the surrender of the promissory note was a deliberate act of Laderas, the dispatcher, or simply because the "purchase order slip" note, (sic) the fact remains that such failure contributed to the consummation of the fraud. (Ibid., p. 17-18)

The Arbitration Committee Decision's conclusion was expressed thus —

Except for Laderas, not one of the BPI personnel tasked with the pretermination of Eligia G. Fernando's placement and the issuance of the pretermination checks colluded in the fraud, although there may have been lapses of negligence on their part which we shall discuss later. The secreting out of BPI of Fernando's specimen signature, which, as admitted by the impostor herself (Exhibit E-2, page 5), helped her in forging Fernando's signature was no doubt an "inside job" but done by any of the four employees colluding in the fraud, not by the personnel directly charged with the custody of Fernando's records. (Annex C, p. 15)

With respect to the negligence of the CBC employees in the payment of the two (2) BPI cashier's checks involved in this case, the Arbitration Committee's Decision made incontrovertible findingsundisputed in the statement of facts found in the Court of Appeals' decision of 8 August 1991, the Regional Trial Court decision of 28 November 1990 and the PCHC Board of Directors' Order of 26 August 1986 (Annexes A, E, D, respectively). These findings point to negligence of the CBC employees which led to: (a) the opening of the impostor's current account in the name of Eligia G. Fernando; (b) the deposit of said account of the two (2) checks in controversy and (c) the withdrawal of their proceeds from said account.

The Arbitration Committee found that —

1. Since the impostor presented only her tax account number as a means of identification, we feel that Emily Sylianco Cuaso, Cash Supervisor, approved the

opening of her current account in the name of Eligia G. Fernando on the strength of the introduction of Antonio Concepcion who had himself opened an account earlier that year. That Mrs. Cuaso was not comfortable with the introduction of the new depositor by Concepcion is betrayed by the fact that she made it appear in the application form that the new depositor was introduced by Valentin Co a long-standing valued client of CBC who had introduced Concepcion when he opened his account. We find this misrepresentation significant because when she reviewed the application form she assumed that the new client was introduced by Valentin Co as indicated in the application form (tsn of March 19, 1985, page 13). Thus we find that the impostor was able to open with CBC's current account in the name of Eligia G. Fernando due to the negligence, if not misrepresentation, of its Cash Supervisor, (Annex C, p. 18).

2. Even with negligence attending the impostor's opening of a current account, her encashment of the two checks in controversy could still have been prevented if only the care and diligence demanded by the circumstances were exercised. On October 14, 1981, just a day after she opened her account, the impostor deposited the two checks which had an aggregate value of P2,413,215.16, which was grossly disproportionate to her initial deposit of P10,000. The very date of both checks, October 12, 1981, should have tipped off the real purpose of the opening of the account on October 13, 1981. But what surely can be characterized only as abandonment of caution was allowing the withdrawal of the checks' proceeds which started on October 16, 1981 only two days after the two checks were deposited; by October 22, 1981, the account had been emptied of the checks' proceeds. (Annex C, p. 19).

3. We cannot accept CBC's contention that "big withdrawals" are "usual business" with it. Huge withdrawals might

be a matter of course with an established account but not for a newly opened account, especially since the supposed check proceeds being withdrawn were grossly disproportionate to the initial cash deposit. (Annex C, p. 19).

As intimated earlier, the foregoing findings of fact were not materially disputed either by the respondent PCHC Board of Directors or by the respondent courts (compare statement of facts of respondent court as reproduced in pp. 9-11 of this petition).

Having seen the negligence of the employees of both Banks, the relevant question is: which negligence was graver. The Arbitration Committee's Decision found and concluded thus —

Since there were lapses by both BPI and CBC, the question is: whose negligence was the graver and which was the proximate cause of the loss? Even viewing BPI's lapses in the worst light, it can be said that while its negligence may have introduced the two checks in controversy into the commercial stream. CBC's lack of care in approving the opening with it of the impostor's current account, and its allowing the withdrawal's of the checks' proceeds, the aggregate value of which was grossly disproportionate to the initial cash deposit, so soon after such checks were deposited, caused the "payment" of the checks. Being closest to the vent of loss, therefore, CBC's negligence must be held to be proximate cause of the loss. (Annex C, pp. 19-20) (Rollo, pp. 38-41)

While it is true that the PCHC Board of Directors, and the lower courts did not dispute the findings of facts of the Arbitration Committee, the PCHC Board of Directors evaluated the negligence of the parties, to wit:

The Board finds the ruling that the negligence of the employees of CBC is graver than that of the BPI not warranted by the facts because:

1. The acts and omissions of which BPI employees are guilty are not only negligent but criminal as found by the decision.

2. The act of BPI's dealer-trainee Eustaquio of disclosing information about the money market placement of its client over the telephone is a violation, if not of Republic Act 1405, of Sec. 87 (a) of the General Banking Act which

penalizes any officer-employee or agent of any banking institution who discloses to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individual, corporations, or any other entity; and the bland excuse given by the decision that "business in the money market is done mostly by the telephone" cannot be accepted nor tolerated for it is an elementary rule of law that no custom or usage of business can override what a law specifically provides. (Ang Tek v. CA, 87 Phil. 383).

3. The failure of BPI employees to verify or compare Eligia G. Fernando's purported signature on the letter requesting for pre-termination and the letter authorizing the pick-up of the checks in controversy with the signatures on file is not even justified but admitted in the decision as showing lack of care and prudence required by the circumstances. The conjectural excuse made in the decision that "it is doubtful that such comparison would have disclosed the deception" does not give an excuse for the omission by BPI employees of the act of verifying the signature, a duty which is the basic requirement of all acts in the bank. From the very first time an employee enters the services of a bank up to the time he becomes the highest officer thereof, the cautionary rule is drilled on him to always be sure that when he acts on the basis of any signature presented before him, the signature is to be verified as genuine and that if the bank acts on the basis of a forgery of such signature, the bank will be held liable. There can be no excuse therefore for such an omission on the part of BPI employees.

4. The decision admits that:

A significant lapse was, however, committed when the two checks in controversy were delivered without requiring the surrender of the promissory note evidencing the placement that was supposedly preterminated.

This omission of the BPI to require the surrender of the promissory notes evidencing the placement is justified by the decision by saying that Sec. 74 of the Negotiable Instrument Law is not violated by this omission of the BPI employees because said provision is intended for the benefit of the person paying (in this case the BPI) so that since the omission to surrender having been waived by BPI, so the non-surrender does not invalidate the payment. The fallacy of this argument is that the in this case is: whether or not such non-surrender is a necessary ingredient in the cause of the success of the fraud and

not whether or not the payment was valid. This excuse may perhaps be acceptable if the omission did not cause damage to any other person. In this case, however, it did cause tremendous damage. Moreover, this statement obviously overlooks the provision in Art. 1240 of the Civil Code requiring the payor (which in this case is the BPI) to be sure he pays to the right person and as Art. 1242 states, he can claim good faith in paying to the right person only if he pays to the person possession of the credit (which in this case is the promissory note evidencing the money market placement). Clearly therefore, the excuse given in the decision for the non-surrender of this promissory note evidencing the money market placement cannot be accepted.

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The decision, however, discusses in detail the negligent acts of the CBC in its lapses or certain requirements in the opening of the account and in allowing withdrawals against the deposited checks soon after the deposit thereof. As stated by the decision however, in computerized banks the history of the account is not shown in the computer terminal whenever a withdrawal is made.

The Board therefore believes that these withdrawals, without any further showing that the CBC employees "had actual knowledge of the infirmity or defect, or knowledge of such facts" (Sec. 56, Negotiable Instruments Law) that their action in accepting their checks for deposit and allowing the withdrawals against the same "amounted to bad faith" cannot be considered as basis for holding CBC liable. (Rollo, pp. 107-111)

Banks handle daily transactions involving millions of pesos. By the very nature of their work the degree of responsibility, care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. For obvious reasons, the banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees.

In the present case, there is no question that the banks were negligent in the selection and supervision of their employees. The Arbitration Committee, the PCHC Board of Directors and the lower court, however disagree in the evaluation of the degree of negligence of the banks. While the Arbitration Committee declared the negligence of respondent CBC graver, the PCHC Board of Directors and the lower courts declared that petitioner BPI's negligence was graver. To the extent that the degree of negligence is equated to the proximate cause of the loss, we rule that the issue as to whose negligence is graver is relevant. No matter how many justifications both banks present to avoid responsibility, they cannot erase the fact that they were both guilty in not exercising extraordinary diligence in the selection and supervision of their

employees. The next issue hinges on whose negligence was the proximate cause of the payment of the forged checks by an impostor.

Petitioner BPI accuses the Court of Appeals of inconsistency when it affirmed the PCHC's Board of Directors' Order but in the same breath declared that the negligent acts of the CBC employees occurred immediately before the actual loss.

In this regard petitioner BPI insists that the doctrine of last clear chance enunciated in the case of Picart v. Smith(37 Phil. 809 [1918]) should have been applied considering the circumstances of the case.

In the Picart case, Amado Picart was then riding on his pony over the Carlatan Bridge at San Fernando, La Union when Frank Smith approached from the opposite direction in a car. As Smith neared the bridge he saw Picart and blew his horn to give warning of his approach. When he was already on the bridge Picart gave two more successive blasts as it appeared to him that Picart was not observing the rule of the road. Picart saw the car coming and heard the warning signals. An accident then ensued resulting in the death of the horse and physical injuries suffered by Picart which caused him temporary unconsciousness and required medical attention for several days. Thereafter, Picart sued Smith for damages.

We ruled:

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was no longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty to either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran starlight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get excited and jump under the conditions

which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eyes of the law.

The test by which by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.

xxx xxx xxx

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party."

Applying these principles, petitioner BPI's reliance on the doctrine of last clear chance to clear it from liability is not well-taken. CBC had no prior notice of the fraud perpetrated by BPI's employees on the pretermination of Eligia G. Fernando's money market placement. Moreover, Fernando is not a depositor of CBC. Hence, a comparison of the signature of Eligia G. Fernando with that of the impostor Eligia G. Fernando, which respondent CBC did, could not have resulted in the discovery of the fraud. Hence, unlike in the Picart case herein the defendant, had he used reasonable care and caution, would have recognized the risk he was taking and would have foreseen harm to the horse and the plaintiff but did not, respondent CBC had no way to discover the fraud at all. In fact the records fail to show that respondent CBC had knowledge, actual or implied, of the fraud perpetrated by the impostor and the employees of BPI.

However, petitioner BPI insists that even if the doctrine of proximate cause is applied, still, respondent CBC should be held responsible for the payment to the impostor of the two (2) checks. It argues that the acts and omissions of respondent CBC are the cause "that set into motion the actual and continuous sequence of events that produced the injury and without which the result would not have occurred." On the other hand, it assets that its acts and omissions did not end in a loss. Petitioner BPI anchors its argument on its stance that there was "a gap, a hiatus, an interval between the issuance and delivery of said checks by petitioner BPI to the impostor and their actual payment of CBC to the impostor. Petitioner BPI points out that the gap of one (1) day that elapsed from its

issuance and delivery of the checks to the impostor is material on the issue of proximate cause. At this stage, according to petitioner BPI, there was yet no loss and the impostor could have decided to desist from completing the same plan and could have held to the checks without negotiating them.

We are not persuaded.

In the case of Vda. de Bataclan, et al, v. Medina (102 Phil. 181 [1957]), we had occasion to discuss the doctrine of proximate cause.

Briefly, the facts of this case are as follows:

At about 2:00 o'clock in the morning of September 13, 1952 a bus carrying about eighteen (18) passengers on its way to Amandeo, Cavite figured in an accident. While the bus was running, one of the front tires burst and the bus began to zigzag until it fell into a canal on the right side of the road and turned turtle. Some passengers managed to get out from the overturned bus except for four (4) passengers, among them, Bataclan. The passengers who got out heard shouts for help from Bataclan and another passenger Lara who said they could not get out from the bus. After half an hour, about ten men came, one of them carrying a lighted torch made of bamboo with a wick on one end fueled with petroleum. These men approached the overturned bus, and almost immediately, a fierce fire started burning and all but consuming the bus including the four (4) passengers trapped inside. It turned out that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis spreading over and permeating the body of the bus and the ground under and around it. The lighted torch brought by one of the men who answered the call for help set it on fire. On the same day, the charred bodies of the trapped passengers were removed and identified. By reason of his death, Juan Bataclan's wife and her children filed a suit for damages against Maximo Medina, the operator and owner of the bus in the then Court of First Instance of Cavite. The trial court ruled in favor of the defendant. However, we reversed and set aside the trial court's decision and said:

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though the must have suffered, physical injuries, perhaps serious, was still alive and so damages were awarded, not for his death, but for the physical satisfactory definition of promote cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more

comprehensively, the proximate legal cause in that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, on might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case and under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause of the death of Bataclan was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected;that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them; and coming as they did from a rural area where lanterns and flashlights were not available, they had to use a torch, the most handy and available; and what was more natural than that said rescuers should innocently approach the overturned vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with the torch was to be expected and was natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. (Emphasis Supplied, at pp. 185-187)

Again, applying the doctrine of proximate cause, petitioner BPI's contention that CBC alone should bear the loss must fail. The gap of one (1) day between the issuance and delivery of the checks bearing the impostor's name as payee and the impostor's negotiating the said forged checks by opening an account and depositing the same with respondent CBC is not controlling. It is not unnatural or unexpected that after taking

the risk of impersonating Eligia G. Fernando with the connivance of BPI's employees, the impostor would complete her deception by encashing the forged checks. There is therefore, greater reason to rule that the proximate cause of the payment of the forged checks by an impostor was due to the negligence of petitioner BPI. This finding, notwithstanding, we are not inclined to rule that petitioner BPI must solely bear the loss of P2,413,215.16, the total amount of the two (2) forged checks. Due care on the part of CBC could have prevented any loss.

The Court cannot ignore the fact that the CBC employees closed their eyes to the suspicious circumstances of huge over-the-counter withdrawals made immediately after the account was opened. The opening of the account itself was accompanied by inexplicable acts clearly showing negligence. And while we do not apply the last clear chance doctrine as controlling in this case, still the CBC employees had ample opportunity to avoid the harm which befell both CBC and BPI. They let the opportunity slip by when the ordinary prudence expected of bank employees would have sufficed to seize it.

Both banks were negligent in the selection and supervision of their employees resulting in the encashment of the forged checks by an impostor. Both banks were not able to overcome the presumption of negligence in the selection and supervision of their employees. It was the gross negligence of the employees of both banks which resulted in the fraud and the subsequent loss. While it is true that petitioner BPI's negligence may have been the proximate cause of the loss, respondent CBC's negligence contributed equally to the success of the impostor in encashing the proceeds of the forged checks. Under these circumstances, we apply Article 2179 of the Civil Code to the effect that while respondent CBC may recover its losses, such losses are subject to mitigation by the courts. (See Phoenix Construction Inc. v. Intermediate Appellate Courts, 148 SCRA 353 [1987]).

Considering the comparative negligence of the two (2) banks, we rule that the demands of substantial justice are satisfied by allocating the loss of P2,413,215.16 and the costs of the arbitration proceeding in the amount of P7,250.00 and the cost of litigation on a 60-40 ratio. Conformably with this ruling, no interests and attorney's fees can be awarded to either of the parties.

WHEREFORE, the questioned DECISION and RESOLUTION of the Court of Appeals are MODIFIED as outlined above. Petitioner Bank of the Philippine Islands shall be responsible for sixty percent (60%) while respondent China Banking Corporation shall share forty percent (40%) of the loss of TWO MILLION FOUR HUNDRED THIRTEEN THOUSAND, TWO HUNDRED FIFTEEN PESOS and SIXTEEN CENTAVOS (2,413,215.16) and the arbitration costs of SEVEN THOUSAND, TWO HUNDRED FIFTY PESOS (7,250.00). The Philippine Clearing House Corporation is hereby directed to effect the corresponding entries to the banks' clearing accounts in accordance with this decision. Costs in the same proportion against the Bank of the Philippine Islands and the China Banking Corporation.

SO ORDERED

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

EN BANCG.R. No. L-7760             October 1, 1914

E. M. WRIGHT, plaintiff-appellant, vs.

MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.Bruce, Lawrence, Ross & Block for defendant. MORELAND, J.:

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

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

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

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

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

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

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

negligence on the part of the plaintiff, then he should be awarded damages adequates to the injury sustained."

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

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

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

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

who attended him an hour after the accident, demonstrates that he was intoxicated. . . . .

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

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

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

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

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

Arellano, C.J., Torres and Araullo, JJ., concur.   Separate Opinions CARSON, J., dissenting:

          I dissent. I think, in the first place, that before pronouncing judgment the parties should have an opportunity, if they so desire, to correct the manifestly accidental omission from the record of a part of

the transcript of the record. It is very clear that when the case was submitted, and the brief filed, both parties were under the mistaken impression that all the evidence was in the record.

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

          The trail judge expressly found that —

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

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

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

EN BANCG.R. No. 6659           September 1, 1911

THE UNITED STATES, plaintiff-appellee, vs.

BAGGAY, JR., defendant-appellant.

Roman Lacson, for appellant.Acting Attorney-General Harvey, for appellee.

TORRES, J.:

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

About the 4th of October, 1909, several persons were assembled in the defendant's house in the township of Penarrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service called "buni" according to the Tinguian custom, when he, the non-Christian Baggay, without provocation suddenly attacked the woman Bil-liingan with a bolo, inflicting a serious wound on her head from which she expired immediately; and with the same bolo he like wise inflicted various wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own mother, named Dioalan.

For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February 15, charging the non-Christian Baggay, jr., with murder, because of the violent death of the woman Bil-liingan. This cause was instituted separately from the other, No. 1109, for lesiones. After trial and proof that the defendant was suffering from mental aberration, the judge on April 28 rendered the judgment cited above, whereupon the defendant's counsel appealed to this court.

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

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

what he had known since April 28 of the judgment, of which the judge had verbally informed him, although the latter did not then have him sign it.

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

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

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

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

Article 17 of the Penal Code states:

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

Article 18 of the same code says:

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

(1) In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic or imbecile, or a person under 9 years of age, or over this age and under 15, who has not acted with the exercise of judgment, are those who have them under their

authority, legal guardianship or power, unless they prove that there was no blame or negligence on their part.

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

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

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

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

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

SECOND DIVISIONG.R. No. L-8110 June 30, 1956

MARINDUQUE IRON MINES AGENTS, INC., Petitioner,vs.

THE WORKMEN’S COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and GERONIMO MA. COLL, Respondents.

D E C I S I O N

BENGZON, J.:

The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmen’s Compensation Commissioner confirming the referee’s award of compensation to the heirs of Pedro Mamador for his accidental death.

Only the right to compensation is disputed; not the amount.

“It appears,” says the award, “that on August 23, 1951, at 6:00 a.m. in Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of the Respondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to the latter, which was then driven by one Procopio Macunat, also employed by the corporation, and on its way to their place of work at the mine camp at Talantunan, while trying to overtake another truck on the company road, it turned over and hit a coconut tree, resulting in the death of said Mamador and injury to the others.”

Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased. (Criminal Case No. 1491). He has paid nothing however, to the latter.

In his first proposition Petitioner challenges the validity of the proceedings before the Commission, asserting it had not been given the opportunity to cross-examine the opposing witnesses. According to Respondents.

“The records show that pursuant to a request made by this Commission on March 28, 1953 to investigate the above-entitled case, the Public Defender of Boac, Marinduque, notifiedRespondent Geronimo Ma. Coll and the general manager of the Respondent company, Mr. Eric Lenze, to appear before him in an investigation, first on May 12, 1953, when neither of them appeared, and the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The sworn testimony of Mr. Ma. Coll was then taken down in a question and answer method. On August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote the Respondentcompany to comment on the enclosed copy of the sworn declaration of Ma. Coll. TheRespondent company, thru its Vice President, denied its liability under the Workmen’s Compensation Act, as amended. In an investigation conducted on February 8, 1954 by the undersigned referee, the Respondent company thru Mr. Lenze who was assisted by counsel, was allowed to examine the records of the case including the sworn declaration of Ma. Coll and was given all the opportunity to rebut the same by additional evidence.”

In our opinion, Petitioner’s grievance does not rest on any sound basis, because it was given notice, and therefore had the chance, to examine (and cross-examine) the witnesses against it. The statute even permits the Commissioner (or his referee) to take testimony without notice (section 48 Act 3428 as amended) provided of course such ex parte evidence is reduced to writing, and the adverse party is afforded opportunity to examine and rebut the same which was done in this instance.

Anyway we are not shown how its failure to cross-examine the witnesses prejudiced thePetitioner’s position.

In its second proposition, Petitioner maintains that this claim is barred by section 6 of the Workmen’s Compensation Law, because (a) Macunat was prosecuted and required to indemnify the heirs of the deceased and (b) an amicable settlement was concluded between said heirs and Macunat.

Section 6 provides as follows:

“Sec. 6.  Liability of third parties. — In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; and in case compensation is claimed and allowed in accordance with this Act, the employer who paid such compensation or was found liable to pay the same, shall succeed the injured employee to the right of recovering from such person what he paid: Provided, That in case the employer recovers from such third person damages in excess of those paid or allowed under this Act, such excess shall be delivered to the injured employee or any other person entitled thereto, after deduction of the expenses of the employer and the costs of the proceedings. The sum paid by the employer for compensation or the amount of compensation to which the employee or his dependents are entitled, shall not be admissible as evidence in any damage suit or action.”

It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome constituted an election by the employee (or his heirs) to sue the third person, such election having the effect of releasing the employer. However, Criminal Case No. 1491 was not a suit for damages against the third person, it being alleged, without contradiction that the heirs did not intervene therein and have not so far received the indemnity ordered by the court. At any rate, we have already decided in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal prosecution of the “other person” does not affect the liability of the employer to pay compensation. 2

As to the alleged “amicable settlement,” it consists of an affidavit wherein, for the sum of 150 pesos, Mamador’s widow promised “to forgive Macunat for the wrong committed and not to bring him before the authorities for prosecution.” Upon making such promise — Petitionerargues — she elected one of the remedies, (against the third person) and is barred from the other remedy (against the employer). The contention may not be sustained, inasmuch as all the widow promised was to forego the offender’s criminal prosecution. Note further that a

question may be raised whether she could bind the other heirs of the deceased.

The most important aspect of this appeal, is the effect of the deceased’s having violated the employer’s prohibition against laborers riding the haulage trucks. Petitioner claims such violation was the laborer’s “notorious negligence” which, under the law, precludes recovery. The Commission has not declared that the prohibition was known to Mamador. Yet the employer does not point out in the record evidence to that effect. Supposing Mamador knew the prohibition, said the referee, “can we truthfully say that he boarded the fatal truck with full apprehension of the existence of the danger, if any at all, that an ordinary prudent man would try to avoid? I do not believe so, and even in the presence of doubt, the same must be resolved in his favor. Unless of course, we can attribute to him a desire to end his life. Nowhere in the records of this case can we find the slightest insinuation of that desire.”

There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence, ordinarily. It couldn’t be, because transportation by truck is not dangerous per se. It is argued that there was notorious negligence in this particular instance because there was the employer’s prohibition. Does violation of this order constitute negligence? Many courts hold that violation of a statute or ordinance constitutes negligence per se. Others consider the circumstances.

However there is practical unanimity in the proposition that violation of a rule promulgated by a Commission or board is not negligence per se; 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 MONTEMAYOR, J.:

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

 Endnotes:

  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 DIVISIONG.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner, vs.

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

Edralin S. Mateo for petitioner.Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.Roberto T. Vallarta for respondent Godofredo Isidro. SARMIENTO, J.:

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

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

xxx xxx xxx

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

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

defendant to file his answer and later on, a third-party complaint.

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

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

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

Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck helper and while working as such, he sustained injuries as a result of the bumping of the

cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he supported his family sufficiently, but after getting injured, his family is now being supported by his parents and brother.

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

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

xxx xxx xxx

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

WHEREFORE, premises considered, the defendant is hereby ordered:

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

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

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

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

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

b) The costs of this suit.

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

Hence, this petition.

The petitioner alleges the following errors. 8

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

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

The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself).<äre||anº•1àw> Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable.

The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this Court in a petition for review by certiorari. 9

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

1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and

reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record.

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

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

On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it was filed out of time. It must be noted that there was a motion for extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again erroneously, with the Court of Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a similar motion21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition for review was filed on April 17, 1986 22 but it was only after three months, on August 1, 1986, in its comment 23 that the respondent corporation raised the issue of tardiness. The respondent corporation should not have waited in ambush before the comment was required and before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing.

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do 24 or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 25

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

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

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

Respondent Isidro's contention is untenable.

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

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

Answer: (by Daniel Serrano)

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

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

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

The respondent court ruled: 32

xxx xxx xxx

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

xxx xxx xxx

... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while the immobile truck has no business, so to

speak, to be there. It is thus for the plaintiff to show to the satisfaction of a reasonable mind that the driver and he himself did employ early warning device such as that required by law or by some other adequate means or device that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur, on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of said truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied).

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

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

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

In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36

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

The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any

accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial 47 The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.

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

SO ORDERED.

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

1 Veloso, Marcelino R., ponente; Sison, Porfirio V., Bidin, Abdulwahid A., and Britanico, Ramon B., JJ., concurring.2 Fourth Civil Cases Division.3 Rendered by Judge Leticia P. Morales.4 Veloso, Mercelino R., J., ponente; Sison, Porfirio V. Bidin, Abdulwahid A., and Britanico, Ramon B., JJ., concurring.5 Decision of IAC, Rollo, 46-49.6 Decision of the Regional Trial Court, Rollo, 32.7 Ibid., p. 52.8 Petition, Rollo, pp. 8-9.9 Rollo, 108.10 The Executive Secretary, et al. vs. CA, G.R. No. L-37999, 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, 1988.12 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, 50.14 Id.15 Id.16 Id.17 Petition, 13.18 Decision, CA, 50.19 Annex K, 59.20 Annex M, 62.21 Motion for Extension, 2.22 Petition, 4.23 Comment, 65.24 Black Law Dictionary, Fifth Edition, 930.25 Cooley on Torts, Fourth Edition, Vol. 3, 265.26 37 Phil. 809, 813, No. L-12219, March 15, 1918; Hedy Gan vs. The Hon. Court of Appeals, G.R. L-44264, September 19, 1988.27 Memorandum of Private Respondent, 2-3.28 Rollo, 13.29 Id., 11, quoting the police investigation report by Patrolman Josefino Velasco at about 10:00 a.m., on May 16, 1979, the morning after the accident, of the statement of Daniel Serrano, the driver of respondent Isidro.30 Petition, Rollo, 13.31 Decision, RTC, Rollo, 13.32 Decision, IAC, Rollo, 50-51, 52.33 Cooley on Torts, Vol. 3. 369.34 Fifth Edition, 1173.35 L-12986, March 31, 1966, 16 SCRA 448.36 L-52732, August 29, 1988.37 Corpus Juris Secundum, Vol. 65A, 525.38 Id., 527.39 Id., 529.40 Id 529-530.41 Id., 530.42 Id., 543-544.43 Id., 544-545.44 Id., 548.45 Bahia vs. Litonpia and Leynes, No. L-9734, March 31, 1915, 30 Phils. 624.46 Memorandum of private respondent, 6.47 Decision, IAC, Rollo, 52.

FIRST DIVISIONG.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, 

vs.COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.

ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents. KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

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

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

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

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

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband

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

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

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

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

Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that the doctor

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

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

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

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the operating room. He also saw several doctors

rushing towards the operating room. When informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).

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

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

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

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

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

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

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda

Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

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

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

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

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

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient after her (the

patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date. This, they should have done, if defendants acted with due care and prudence as the patient's case was an elective, not an emergency case.

xxx xxx xxx

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

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

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

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

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

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

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of

time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

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

Even assuming admissibility of the Motion for the Reconsideration, but after considering the Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

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

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

I

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

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

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

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

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

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima faciecase, and present a question of fact for defendant to meet with an explanation. 13 Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and

the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care. 14

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

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

1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;

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

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

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

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence cases

presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. 30Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 36among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases

where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. 40The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. 42

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

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

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

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

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

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

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

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases

where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.

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

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

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

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

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

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

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

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

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

xxx xxx xxx

ATTY. PAJARES:

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

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

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

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

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

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

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

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

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

A: Yes sir.

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

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

Q: What happened to the patient?

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

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable

of determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day.

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

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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

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

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

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

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins

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

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

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

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

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

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

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

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

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

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

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

ATTY. LIGSAY:

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

DR. JAMORA:

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

Q: But not in particular when you practice pulmonology?

A: No.

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

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

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

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

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

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

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart

from submitting testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by competent and independent experts in the proper areas.

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

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

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

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

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

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been observed during the first intubation suggests that the length of

time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68

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

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had

little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real.

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

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

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

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also

for those of others based on the former's responsibility under a relationship of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition.

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

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

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

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

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum

cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

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

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

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

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

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

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

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen years now. The burden of care has so far been heroically shouldered by her husband

and children, who, in the intervening years have been deprived of the love of a wife and a mother.

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

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim's condition. 84The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

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

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

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

P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

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

Footnotes1 In the United States alone, a great number of people die every year as a result of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled "Doctors' Deadly Mistakes" which is quoted in part: "It is hardly news that medical professionals make mistakes — even dumb, deadly mistakes. What is shocking is how often it happens. Depending on which statistics you believe, the number of American killed by medical screw-ups is somewhere between 44,000 and 98,000 every year — the eighth leading cause of death even by the more conservative figure, ahead of car crashes, breast cancer and AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health officials had known about the problem for years and hadn't made a concerted effort to do something about it."2 Cholecystectomy is the surgical excision of the gall bladder.3 CA Rollo, pp. 129-140.4 Records, pp. 270-279.5 Id. at 270-275.6 Docketed as Civil Case No. Q-46885.7 Records, pp. 276-278.8 CA Rollo, p. 166.9 Id. at 145.10 Id. at 195.11 Rollo, p. 19.12 Id. at 91-98.13 57B Am Jur 2d, 493 (1989).14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).15 57B Am Jur 2d, supra note 13 at 499.16 Ibid.17 Id. at 502.18 Ibid.19 Id.20 Id. at 503.21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P.2d 647.22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).23 57B Am Jur 2d, supra note 13, at 513.24 It is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional

which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 788 [1997]).25 Voss vs. Bridwell, supra note 21.26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P.237.29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423.30 SOLIS, supra note 27, at 239.31 Voss vs. Bridwell, supra note 21 at 970-971.32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).34 Griffin vs. Norman, 192 NYS 322 (1922).35 Brown vs. Shortilledge, 277 P. 134 (1929).36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).37 Voss vs. Bridwell, supra note 21, at 969.38 Id. at 968.39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).40 Voss vs. Bridwell, supra note 21, at 968.41 Sanders vs. Smith, 27 So.2d 889, 893 (1946).42 Ibid.43 Voss vs. Bridwell, supra note 21.44 Id. at 971.45 It is the method of intubating a patient through the oral cavity. Under this procedure, after the patient has been preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist inserts an instrument called a laryngoscope into the patient's oral pharynx. The patient's neck is hyperextended, that is, bent back as far as possible so that the anesthetist can see or "visualize" the patient's epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube between the patient's vocal cords into the trachea, and then hook the tube to the breathing bag and anesthetic machine.46 TSN, January 13, 1988, pp. 16-20.47 CA Rollo, pp. 134-135.48 Stockham vs. Hall, supra note 29.49 61 Am Jur 2d, 513 (1989).50 TSN, January 13, 1988, p. 3.51 TSN, November 15, 1990, p. 11.52 TSN, October 9, 1990, p. 13.53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).54 Ibid.55 Id. at 105 (Emphasis supplied).56 id. at 106.57 Id.58 TSN, November 15, 1990, p. 6.59 Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as in asthma).60 Permanent damage to the brain caused by inadequate oxygenation.

61 TSN, February 28, 1991, pp. 10-11.62 Rule 130, RULES OF COURT.63 61 Am Jur 2d, supra note 49, 516.64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).65 Ibid.66 It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood.67 TSN, March 27, 1990, p. 22.68 Records, p. 274.69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).70 Ibid.71 Id. The book provides a thorough discussion on the management of difficult intubations.72 Id.73 Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control.74 The term "consultant" is loosely used by hospitals to distinguish their attending and visiting physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is used.75 These requirements are in fact found in the standard application forms for visiting and attending physicians of respondent hospital.76 The hospital's control over respondent physicians is all the more significant when one considers the fact that it controls everything which occurs in an operating room, through its nursing supervisors and charge nurses. No operations can be undertaken without the hospital's direct or indirect consent.77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).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 inadequate.82 253 SCRA 303 (1996).83 Id. at 327-328.84 Id. at 328.

THIRD DIVISIONG.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.

COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

 DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand."2 Subsequently, Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession if the preservation of life and maintenance of the health of the people. 4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492.

The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel

Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee". . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines. . . which she had been taking up to December, 1988.

In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. 7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for

examination, 8 it was not mentioned in the pathologist's Surgical Pathology Report. 9

Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto. . . ." 15The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could be gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" — (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. 19

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

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin. . . .

Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area. 20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and caused appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of litigation.

SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities.

The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court.

While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when

the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts.22

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

Q What is the purpose of the examination?

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

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

Q So you did actually conduct the operation on her?

A Yes, I did.

Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece of] rubber on the right side. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first-hand knowledge for, as she asserted before the trial court:

Q But you are sure you have seen [the piece of rubber]?

A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that

when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 29

It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:

This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. 35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine:

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

Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer. . . . Under [this] doctrine. . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall

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

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

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people,  37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in general, 40 and members of the medical profession, 41 in particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.

Costs against the petitioners.

SO ORDERED.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

Footnotes1 Implemented in Babylon, ca. 2250 B.C.2 See L.J. REGAN, DOCTOR AND PATIENT AND THE LAW, 2d. ed. [1949], 34.3 460-377 B.C.4 P. SOLIS, MEDICAL JURISPRUDENCE [1988 ed.], 5.5 Appendix "A" of Petition; Rollo, 12-22. Per Austria-Martinez, M.A., J., with Marigomen, A., and Reyes, R.JJ., concurring.6 Original Records (OR), 260-272. Per Judge Enrique C. Garrovillo.7 OR, 261-264.

8 TSN, 12 July 1990, 49.9 Id., 50-51.10 OR, 132.11 Id., 135-137.12 Id., 138.13 Id., 139-140.14 Id., 141.15 Id., 268.16 Id., 266.17 TSN, 12 July 1990, 49.18 OR, 269.19 Id.20 Rollo, 20.21 Id., 21.22 Remalante vs. Tibe, 158 SCRA 138, 145 [1988]; Medina vs. Asistio, 191 SCRA 218, 223-224 [1990]; Borillo vs. Court of Appeals, 209 SCRA 130, 140-141 [1992]; Director of Lands vs. Intermediate Appellate Court, 209 SCRA 214, 221 [1992]; Margolles vs. Court of Appeals, 230 SCRA 97, 106 [1994].23 TSN, 12 July 1990, 49.24 TSN, 12 July 1990, 9.25 Id., 10-49.26 TSN, 12 July 1990, 10.27 RICARDO J. FRANCISCO, Evidence, 255 [1993].28 People vs. Laurente, G.R. No. 116734, 29 March 1996, at 24, citations omitted.29 People vs. Ducay, 225 SCRA 1, 14 [1993]; People vs. Cañeja, 235 SCRA 328, 337 [1994].30 TSN, 31 August 1990, 20.31 Id., 21.32 TSN, 10 September 1990, 5.33 People vs. Antonio, 233 SCRA 283, 299 [1994].34 See People vs. De Leon, 245 SCRA 538, 545 [1995]; People vs. Malunes, 247 SCRA 317, 326-327 [1995].35 OR, 267.36 Layugan vs. Intermediate Appellate Court, 167 SCRA 363, 376-377 [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 DIVISIONG.R. No. 137873       April 20, 2001

D. M. CONSUNJI, INC., petitioner, vs.

COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

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

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

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

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

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

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

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

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

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

2. P10,000.00 as actual and compensatory damages.

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

4. P100,000.00 as moral damages.

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

SO ORDERED.2

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

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

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

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

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

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

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official records. Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law areprima facie evidence of the facts therein stated.

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

(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

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

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

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

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

When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth),

was effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony in open court of the officer who made the official record, considers the matter as an exception to the hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon.

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

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

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

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

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the

premises of the building the day after the incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without any pin or bolt.17

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

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

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

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

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

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

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the

doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person.

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

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

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

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

appellee’s deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of appellant’s negligence arises. x x x.24

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

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

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

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

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

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

Article 173 of the Labor Code states:

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

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act, provided that:

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

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

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

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

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

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

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

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

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last

case, the Court again recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court said:

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

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

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as November 25, 1990, the date of the police investigator’s report. The appellee merely executed her sworn statement before the police investigator concerning her personal circumstances, her relation to the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence Resulting to Homicide" against appellant’s employees. It was the investigator who recommended the filing of said case and his supervisor referred the same to the prosecutor’s office. This is a standard operating procedure for police investigators which appellee may not have even known. This may explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not have a chance to appear before the public prosecutor as can be inferred from the following statement in said memorandum: "Respondents who were notified pursuant to Law waived their rights to present controverting evidence," thus there was no reason for the public prosecutor to summon the appellee. Hence, notice of appellant’s negligence cannot be imputed on appellee before she applied for death benefits under

ECC or before she received the first payment therefrom. Her using the police investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutor’s Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not attributable to any negligence on the part of the respondents. If at all and as shown by the records this case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellee’s allegation that she learned about appellant’s negligence only after she applied for and received the benefits under ECC. This is a mistake of fact that will make this case fall under the exception held in the Floresca ruling.35

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

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

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

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

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

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an

ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

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

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

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

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

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

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

Does the evidence show that private respondent knew of the facts that led to her husband’s death and the rights pertaining to a choice of remedies?

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

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

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

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

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

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

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Footnote1 Exhibit "A," Records, pp. 60-61.

2 Rollo, pp. 79-80.3 Id., at 19.4 Sec. 36, Rule 130.5 People vs. Ramos, 122 SCRA 312 (1983).6 31A C.J.S. Evidence § 194. See also Philippine Home Assurance Corp. vs. Court of Appeals, 257 SCRA 479 (1996).7 5 J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 3 (3rdEd.).8 San Sebastian College vs. Court of Appeals, 197 SCRA 138 (1991).9 See Rules of Court, Rule 130, Sections 37-47.10 16 SCRA 448 (1966). See also People vs. San Gabriel, 253 SCRA 84 (1996).11 273 SCRA 607 (1997).12 TSN, December 20, 1991, p. 9.13 Id., at 28; TSN, January 6, 1992, p. 29.14 Id., at 29; Ibid.15 Id., at 33.16 Id., at 34.17 Id., at 24 and 28.18 Rules of Court, Rule 130, Sections 49-50.19 Id., Sec. 48.20 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).21 57B Am Jur 2d, Negligence § 1819.22 Id., at 1824.23 Id., at 1914.24 Rollo, pp. 87-88.25 Whether the doctrine raises a presumption or merely an inference is subject to debate. See 57B Am Jur 2d, Negligence §§ 1925-1928.26 Id., at 1920.27 Id., at 1947.28 People vs. Villeza, 127 SCRA 349 (1984); People vs. Quidato, 297 SCRA 1 (1998).29 People vs. Ramos, supra.30 136 SCRA 141 (1985).31 Justices Aquino, Melencio-Herrera, and Gutierrez dissented.32 151 SCRA 333 (1987).33 157 SCRA 446 (1988).34 164 SCRA 317 (1988).35 Rollo, pp. 90-91. Underscoring by the Court of Appeals.36 Id., at 90. Underscoring by the Court of Appeals.37 Id., at § 5.38 Id., at § 2.39 Castro vs. Del Rosario, et al., 19 SCRA 196 (1967).40 28 Am Jur 2d, Estoppel and Waiver § 202.41 Records, pp. 17-18.

42 I Tolentino, A.M. Commentaries and Jurisprudence on the Civil Code of the Philippines 19 (1995).43 Records, p. 100.

EN BANCG.R. No. L-8328 May 18, 1956

MANILA ELECTRIC COMPANY, Petitioner,vs.

SOTERO REMOQUILLO, in his own behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON,

CLEMENTE and AURORA, all surnamed MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second Division), Respondents.

D E C I S I O N

MONTEMAYOR, J.:

On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said to be in a leaking condition. The “media agua” was just below the window of the third story. Standing on said “media agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet to cover the leaking portion, turned around and in doing so the lower end of the iron sheet came into contact with the electric wire of the Manila Electric Company (later referred to as the Company) strung parallel to the edge of the “media agua” and 2 1/2 feet from it, causing his death by electrocution. His widow and children fled suit to recover damages from the company. After hearing, the trial court rendered judgment in their favor — P10,000 as compensatory damages; P784 as actual damages; P2,000 as moral and exemplary damages; and P3,000 as attorney’s fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification by reducing the attorney’s fees from P3,000 to P1,000 with costs. The electric company has appealed said decision to us.

The findings of fact made by the Court of Appeals which are conclusive are stated in the following portions of its decision which we reproduce below:

“The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street and carrying a charge of 3,600 volts. It was installed there some two years before Peñaloza’s house was constructed. The record shows that during the construction of said house a similar incident took place, although fortunate]y with much less tragic consequences. A piece of wood which a carpenter was holding happened to come in contact with the same wire, producing some sparks. The owner of the house forthwith complained toDefendant about the danger which the wire presented, and as a result Defendant moved one end of the wire farther from the house by means of a brace, but left the other end where it was.

“At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the distance from the electric wire to the edge of the ‘media agua’ on which the deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that ‘all wires be kept three feet from the building.’ Appellant contends that in

applying said regulations to the case at bar the reckoning should not be from the edge of the ‘media agua’ but from the side of the house and that, thus measured, the distance was almost 7 feet, or more then the minimum prescribed. This contention is manifestly groundless, for not only is a ‘media agua’ an integral part of the building to which it is attached but to exclude it in measuring the distance would defeat the purpose of the regulation. Appellant points out, nevertheless, that even assuming that the distance, within the meaning of the city regulations, should be measured from the edge of the ‘media agua’, the fact that in the case of the house involved herein such distance was actually less than 3 feet was due to the fault of the owner of said house, because the city authorities gave him a permit to construct a ‘media agua’ only one meter or 39 1/2 inches wide, but instead he built one having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the authorities, thereby reducing the distance to the electric wire to less than the prescribed minimum of 3 feet.

“It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the city authorities for the construction of the ‘media agua’, and that if he had not done soAppellants wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge of the ‘media agua’. It is also a fact, however, that after the ‘media agua’ was constructed the owner was given a final permit of occupancy of the house.

“The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to Appellant, no insulation that could have rendered it safe, first, because there is no insulation material in commercial use for such kind of wire; and secondly, because the only insulation material that may be effective is still in the experimental stage of development and, anyway, its costs would be prohibitive… ”

The theory followed by the appellate court in finding for the Plaintiff is that although the owner of the house in constructing the “media agua” in question exceeded the limits fixed in the permit, still, after making that “media agua”, its construction though illegal, was finally approved because he was given a final permit to occupy the house; that it was the company that was at fault and was guilty of negligence because although the electric wire in question had been installed long before the construction of the house and in accordance with the ordinance fixing a minimum of 3 feet, mere compliance with the regulations does not satisfy the requirement of due diligence nor avoid the need for adopting such other precautionary measures as may be warranted; that negligence cannot be determined by a simple matter of inches; that all that the city did was to prescribe certain minimum conditions and that just because the ordinance required that primary electric wires should be not less than 3 feet from any house, the obligation of due diligence is not fulfilled by placing such wires at a distance of 3 feet and one inch, regardless of other factors. The appellate court, however, refrained from stating or suggesting what other precautionary measures could and should have been adopted.

After a careful study and discussion of the case and the circumstances surrounding the same, we are inclined to agree to the contention of Petitioner Company that the death of Magno was primarily caused by his own negligence and in some measure by the too close proximity of the “media agua” or rather its edge to the electric wire of the company by reason of the violation of the original permit given by the city and the subsequent approval of said illegal construction of the “media agua”. We fail to see how the Company could be held guilty of negligence or as lacking in due diligence. Although the city ordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the house of Peñaloza. Even considering said regulation distance of 3 feet as referring not to the side of a building, but to any projecting part thereof, such as a “media agua”, had the house owner followed the terms of the permit given him by the city for the construction of his “media agua”, namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of said “media agua” would have been 3 feet and 11 3/8 inches. In fixing said one meter width for the “media agua” the city authorities must have wanted to preserve the distance of at least 3 feet between the wires and any portion of a building. Unfortunately, however, the house owner disregarding the permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2 feet between the “Media agua” as illegally constructed and the electric wires. And added to this violation of the permit by the house owner, was its approval by the city through its agent, possibly an inspector. Surely we cannot lay these serious violations of a city ordinance and permit at the door of the Company, guiltless of breach of any ordinance or regulation. The Company cannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wires and said construction, and after finding that said distance of 3 feet had been reduced, to change the stringing or installation of its wires so as to preserve said distance. It would be much easier for the City, or rather it is its duty, to be ever on the alert and to see to it that its ordinances are strictly followed by house owners and to condemn or disapprove all illegal constructions. Of course, in the present case, the violation of the permit for the construction of the “media agua” was not the direct cause of the accident. It merely contributed to it. Had said “media agua” been only one meter wide as allowed by the permit, Magno standing on it, would instinctively have stayed closer to or hugged the side of the house in order to keep a safe margin between the edge of the “media agua” and the yawning 2-story distance or height from the ground, and possibly if not probably avoided the fatal contact between the lower end of the iron sheet and the wires.

We realize that the presence of the wires in question quite close to the house or its “media agua” was always a source of danger considering their high voltage and uninsulated as they were, but the claim of the company and the reasons given by it for not insulating said wires were unrefuted as we gather from the findings of the Court of Appeals, and so we have to accept them as satisfactory. Consequently, we may not hold said company as guilty of negligence or wanting in due diligence in failing to insulate said wires. As to their proximity to the house it is to be

supposed that distance of 3 feet was considered sufficiently safe by the technical men of the city such as its electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased the margin of safety but other factors had to be considered such as that the wires could not be strung or the posts supporting them could not be located too far toward the middle of the street. Thus, the real cause of the accident or death was the reckless or negligent act of Magno himself. When he was called by his stepbrother to repair the “media agua” just below the third story window, it is to be presumed that due to his age and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had training and experience for the job. So, he could not have been entirely a stranger to electric wires and the danger lurking in them. But unfortunately, in the instant care, his training and experience failed him, and forgetting where he was standing, holding the 6-feet iron sheet with both hands and at arms length, evidently without looking, and throwing all prudence and discretion to the winds, he turned around swinging his arms with the motion of his body, thereby causing his own electrocution.

In support of its theory and holding that Defendant-Appellant was liable for damages the Court of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case is exactly applicable. There, the premises involved was that elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the Court, it was “a public place where persons come to stroll, to rest and to enjoy themselves”. The electric company was clearly negligent in placing its wires so near the place that without much difficulty or exertion, a person by stretching his hand out could touch them. A boy named Astudillo, placing one foot on a projection, reached out and actually grasped the electric wire and was electrocuted. The person electrocuted in said case was a boy who was in no position to realize the danger. In the present case, however, the wires were well high over the street where there was no possible danger to pedestrians. The only possible danger was to persons standing on the “media agua”, but a “media agua” can hardly be considered a public place where persons usually gather. Moreover, a person standing on the “media agua” could not have reached the wires with his hands alone. It was necessary as was done by Magno to hold something long enough to reach the wire. Furthermore, Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trained and experienced in the repair of galvanized iron roofs and “media agua”. Moreover, in that very case of Astudillo vs. Manila Electric Co., supra, the court said that although it is a well- established rule that the liability of electric companies for damages or personal injuries is governed by the rules of negligence, nevertheless such companies are not insurers of the safety of the public.

But even assuming for a moment that under the facts of the present case the Defendantelectric company could be considered negligent in installing its electric wires so close to the house and “media agua” in question, and in failing to properly insulate those wires (although according to the unrefuted claim of said company it was impossible to make the insulation of that kind of wire), nevertheless to hold

the Defendant liable in damages for the death of Magno, such supposed negligence of the company must have been the proximate and principal cause of the accident, because if the act of Magno in turning around and swinging the galvanized iron sheet with his hands was the proximate and principal cause of the electrocution, then his heirs may not recover. Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil., 8. In that case, the electric company was found negligent in leaving scattered on its premises fulminating caps which Taylor, a 15- year old boy found and carried home. In the course of experimenting with said fulminating caps, he opened one of them, held it out with his hands while another boy applied a lighted match to it, causing it to explode and injure one of his eyes eventually causing blindness in said eye. Said this Tribunal in denying recovery for the injury:

“ , so that while it may be true that these injuries would not have been incurred but for the negligent act of the Defendant in leaving the caps exposed on its premises, neverthelessPlaintiff’s own act was the proximate and principal cause of the accident which inflicted the injury.”

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

“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.

EN BANCG.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant, vs.

M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant. No appearance for appellee. MORELAND, J.:

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 automobile.

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 recovering.1awphil.net

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 BANCG.R. No. L-30741             January 30, 1930

TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants, vs.

J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD., defendants-appellee.

Kapunan and Kapunan for appellants.Camus and Delgado for appellees.

MALCOLM, J.:

The parents of the five-year old child, Purificacion Bernal, appeal from a judgment of the Court of First Instance of Leyte, which denied them P15,000 damages from J.V. House and the Tacloban Electric & Ice Plant, Ltd., for the death of the child as a consequence of burns alleged to have been caused by the fault and negligence of the defendants.

The salient facts as found by the trial judge are the following:

On the evening of April 10, 1925, the procession of Holy Friday was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the religious celebration. After the procession was over, the woman and her daughter, accompanied by two other persons by the names of Fausto and Elias, passed along a public street named Gran Capitan. The little girl was allowed to get a short distance in advance of her mother and her friends. When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the opposite direction which so frightened the child that she turned to run, with the result that she fell into the street gutter. At that time there was hot water in this gutter or ditch coming from the Electric Ice Plant of J.V. House. When the mother and her companions reached the child, they found her face downward in the hot water. Her clothes were immediately removed and, then covered with a garment, the girl was taken to the provincial hospital. There she was attended by the resident physician, Dr. Victoriano A. Benitez. Despite his efforts, the child died that same night at 11:40 o'clock.

Dr. Benitez, who, of course, was in a better position than any one to know the cause of the death, and who had no reason to depart from the true facts, certified that the cause of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of the chest & abdomen". The same physician in his general record in the Leyte Hospital for this patient, under diagnosis in full, stated: "Burned 3rd Degree, whole body". The treatment record of the attending nurse was much to the same effect.

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 cause of death was other than the hot water; and that in the death the plaintiffs contributed by their own fault and negligence. The trial judge, however, after examination of the evidence presented by the defendants, failed to sustain their theory of the case,

except as to the last mentioned special defense. We are shown no good reason for the departing from the conclusion of the trial judge to the effect that the sudden death of the child Purification Bernal was due principally to the nervous shock and organic calefaction produced by the 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 & Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority continues. "Burns of the first degree, covering two-thirds of the body surface, are rarely recovered from. . . . Children seem especially susceptible to the effect of burns." (Pp. 263, 264).

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the dismissal of the action because of the 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 child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrines announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([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 not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages.

Having reached the conclusion that liability exists, we next turn to discover who can recover damages for the obligation, and against whom the action will lie. The plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of Purificacion Bernal and the former was the natural father, who had never legally recognized his child. The daughter lived with the mother, and presumably was supported by her. Under these facts, recovery should be permitted the mother but not the father. As to the defendants, they are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House was granted a franchise by Act No. 2700 of the Philippine Legislature approved on March 9, 1917. He only transferred this franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926, that is, nearly a year after the death of the child Purificacion Bernal. Under these facts, J.V. House is solely responsible.

Counsel for appellees point out that there is no satisfactory proof to establish the pecuniary loss. That is true. But in cases of this character the law presumes a loss because of the impossibility of exact computation. There is not enough money in the entire world to compensate a mother for the death of her child. In criminal cases, the rule has been to allow as a matter of course P1,000 as indemnity to the heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil., 821), which in many respects is on all fours with the case at bar, the same 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 result will, therefore, be to accept the findings of fact made by the trial judge; to set aside the legal deductions flowing from those facts; to hold that the death of the child Purificacion Bernal was the result of fault and negligence in permitting hot water to flow through the public streets, there to endanger the lives of passers-by who were unfortunately enough to fall into it; to rule that the proper plaintiff is the mother Fortunata Enverso and not the natural father Tomas 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 OpinionsROMUALDEZ, 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 DIVISIONG.R. No. L-57079 September 29, 1989

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

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

 REGALADO, J.:

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

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The

defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. 7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for reconsideration. 10 This resolution was received by respondent spouses on February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their second motion for reconsideration on March 7, 1980.14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second motion for reconsideration, designated two additional justices to form a division of five. 16 On September 3, 1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was filed out of time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court dated October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule in holding PLDT liable to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;

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

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

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

(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

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

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.

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

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the

order denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22, 1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.

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

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

No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second motion for reconsideration and reversing the original decision are null and void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule that once a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The decision rendered anew is null and void. 26 The court's inherent power to correct its own

errors should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation will be endless and no question could be considered finally settled. Although the granting or denial of a motion for reconsideration involves the exercise of discretion, 27 the same should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28

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

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

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

Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.

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

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running

quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been thrown against the windshield and they would not have suffered their injuries.

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

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

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

he passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence.

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

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary damages from the big corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant which would have extreme difficulty in contesting such person's claim. If there were no witness or record available from the police department of Bacolod, defendant would not be able to determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail.

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

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur. Footnotes

1 Civil Case No. 8681, Judge Ernesto Tengco, presiding.2 Rollo, 49-51.

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.21 In the computation of the reglementary period, especially if it is interrupted by the filing of a pleading, the date when the pleading is filed and the date of receipt of the judgment or order thereon are to be excluded (Lloren, etc. vs. De Veyra, etc., et al., 4 SCRA 637 [1962]; De las Alas, et al. vs. Court of Appeals, et al., 83 SCRA 200 [1978]).22 Sec. 1, Rule 45, Rules of Court; Serrano vs. Court of Appeals, et al., 139 SCRA 179 (1985).23 Sec. 3, Rule 52, Rules of Court.24 Galima, et al. vs. Court of Appeals, et al., 16 SCRA 140 (1966); Tuazon vs. Court of Appeals, et al., 43 SCRA 664 (1972),25 Comia, et al. vs. Nicolas, etc., et al., 29 SCRA 492 (l969).26 Heirs of Patriaca, et al. vs. Court of Appeals, et al., 124 SCRA 410 (1983).27 Lucero vs. Dacayo, etc., et al., 22 SCRA 1004 (1963).28 Gardner, et al. vs. Court of Appeals. et al., 131 SCRA 585 (1984).29 Rollo, 97-98.30 Rakes vs. Atlantic Gulf & Pacific Co., 7 Phil. 359 (1907).

31 Sangco, Torts & Damages, 1978 Rev. Ed., 150.32 Rollo, 95.33 Barcelo, etc. vs. Manila Electric Railroad & Light Co., 29 Phil.351 (1951); Sec. 1, Rule 131, Rules of Court; 1 Jones on Evidence, 5th Ed., 370.

FIRST DIVISIONG.R. No. L-40452 October 12, 1989

GREGORIO GENOBIAGON, petitioner, vs.

COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.Mario D. Ortiz for petitioner.

 GRIÑO-AQUINO, J.:

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

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

On December 31,1959, at about 7:30 o'clock in the evening, a rig driven by appellant bumped an old woman who was crossing T. Padilla St., Cebu City, at the right side of T. Padilla Market. The appellant's rig was following another at a distance of two meters. The old woman started to cross when the first rig was approaching her, but as appellant's vehicle was going so fast not only because of the steep down-grade of the road, but also because he was trying to overtake the rig ahead of him, the appellant's rig bumped the old woman, who as a consequence, fell at the middle of the road. The appellant continued to drive on, but a by-stander, one Vicente Mangyao, who just closed his store in market in order to celebrate the coming of the New Year, and who saw the incident right before him, shouted at the appellant to stop. He ran after appellant when the latter refused to stop. Overtaking the appellant, Mangyao asked him why he bumped the old woman and his answer was, 'it was the old woman that bumped him.' The appellant went back to the place where the old woman was struck by his rig. The old woman was unconscious, and the food and viands she was carrying were scattered on her body. The victim was then loaded in a jeep and brought to the hospital where she died three hours later (Exh. C). The findings after an autopsy are as follows:

Contusion with Hematoma Left, Frontal and Occipito-Parietal Regionas Fracture Occipito-Parietal Bone Cerebral Hemorrhage.

The deceased was an eighty-one-year old woman named Rita B. Cabrera. (pp. 31-32, Rollo.)

Petitioner was charged with homicide thru reckless imprudence in the Court of First Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the felony charged and sentenced him to "suffer an indeterminate penalty of three (3) months of arresto mayor as

minimum to one (1) year, one (1) month and eleven (11) days of prision correccional as maximum, to indemnify the heirs of Rita Banzon Cabrera the sum of P6,000 with subsidiary imprisonment in case of insolvency, not to exceed 1/3 of the principal penalty and to pay the costs" (p. 3, Appellant's Brief, p. 56, Rollo).

The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October 10,1974,conviction of the accused but increased his civil liability to P12,000. The dispositive portion of its decision reads:

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

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

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

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

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

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

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

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

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

SO ORDERED.

Narvasa, Cruz and Medialdea, JJ., concur.Gancayco, J., took no part.

EN BANCG.R. No. 1719            January 23, 1907

M. H., RAKES, plaintiff-appellee, vs.

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

A. D. Gibbs for appellant. F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

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

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

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving way of the

block laid in the sand. No effort was made to repair the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the day before the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the company inspected the track after the typhoon or had any proper system of inspection.

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

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

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

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal Code.

And article 568 of the latter code provides:

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

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of regulations, shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor.

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

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

suitable fine should have been imposed, payable primarily by him and secondarily by his employer.

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

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

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

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

xxx           xxx           xxx

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

xxx           xxx           xxx

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

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

harmony with those of articles 23 and 133 of our Penal Code on the same subject.

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

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

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence punished by the law, within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall within the class of acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those and growing out of preexisting duties of the parties to one another. But were relations already formed give rise to duties, whether springing from contract or quasi contract, then breaches of those duties are subject to articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be found in the consequences of a railway accident due to defective machinery supplied by the employer. His liability to his employee would arise out of the contract of employment, that to the passengers out of the contract for passage. while that to that injured bystander would originate in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in two difference senses; either as culpa, substantive and independent, which on account of its origin arises in an obligation between two persons not formerly bound by any other obligation; or as an incident in the performance of an obligation; or as already existed, which can

not be presumed to exist without the other, and which increases the liability arising from the already exiting obligation.

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

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

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900, throws uncertain light on the relation between master and workman. Moved by the quick industrial development of their people, the courts of France early applied to the subject the principles common to the law of both countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a third basis for liability in an article of he French Code making the possessor of any object answerable for damage done by it while in his charge. Our law having no counterpart of this article, applicable to every kind of object, we need consider neither the theory growing out of it nor that of "professional risk" more recently imposed by express legislation, but rather adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual obligation. This contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide safe appliances for the use of the employee, thus closely corresponding to English and American Law. On these principles it was the duty of the defendant to build and to maintain its track in reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it

failed in its duty, otherwise the accident could not have occurred; consequently the negligence of the defendant is established.

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

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

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

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us, rather than a fair inference from the testimony. While the method of construction may have been known to the men who had helped build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man may easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that he knew the state of the track on the day of the accident and that it was then in good condition, and one Danridge, a witness for the defendant, working on the same job, swore that he never noticed the depression in the track and never saw any bad place in it. The sagging of the track this

plaintiff did perceive, but that was reported in his hearing to the foreman who neither promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place."

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

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

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

While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as compared with that of the defendant, and some others have accepted the theory of proportional damages, reducing the award to a

plaintiff in proportion to his responsibility for the accident, yet the overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence, however slight, on the part of the person injured which is one of the causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and Contributory Negligence.")

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

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

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

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

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

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages was not free from contributory

negligence; for instance, the decision of the 14th of December, 1894 (76Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must have perceived beforehand the danger attending the work.

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

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

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

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

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

the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

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

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

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

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

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

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

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress of novel schemers of legislation, we find the theory of damages laid down in the judgment the

most consistent with the history and the principals of our law in these Islands and with its logical development.

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

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

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

Separate Opinions

WILLARD, J., dissenting:

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

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

A.       — Well, it was pretty bad character.

xxx           xxx           xxx

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

A.       Familiar with what?

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

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

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

A.       Yes, sir.

xxx           xxx           xxx

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

A.       Yes, sir.

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

A.       They were in pretty bad condition.

xxx           xxx           xxx

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

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

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

A.       Sure, it was in bad condition.

xxx           xxx           xxx

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

A.       Yes, sir.

Q.       But you knew it was dangerous?

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

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

A.       I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it would it. He said, you keep on fishing around here for fish

plates and you will be fishing for another job the first thing you know." He says, "You see to much."

xxx           xxx           xxx

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

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

xxx           xxx           xxx

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

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

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

A.       It would have strengthened that joint.

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

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

The plaintiff himself testified that he was present with Ellis at the time this conversation was had with McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing directly over the place where the accident happened later in the day. The accident was caused, as the court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course see the ground and the entire construction of the road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these stringers, and the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was out of place.

If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly apparent even than it would appear from the testimony of the defendant's witnesses. According to the plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis testified that the reason why they did not put the 8 by 8 back in its place was because that would have required the raising up of the track and digging out along this upright piece and then putting it up again.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the exact condition of the track and was

informed and knew of the defect which caused the accident. There was no promise on the part of McKenna to repair the track.

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

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

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

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

The partidas contain the following provisions:

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

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

In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March, 1876, and the 6th of October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court of Spain said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between

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

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

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

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

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

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

That article is an express recognition of the fact that in collision cases contributory negligence is a defense,

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

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

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

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

Carson, J., concurs.

FIRST DIVISIONG.R. No. 97626 March 14, 1997

PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL INTERNATIONAL BANK, ROGELIO LACSON, DIGNA

DE LEON, MARIA ANGELITA PASCUAL, et al., petitioners, vs.

THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO LIPANA, its President & General

Manager, respondents. HERMOSISIMA, JR., J.:

Challenged in this petition for review is the Decision dated February 28, 1991 1 rendered by public respondent Court of Appeals which affirmed the Decision dated November 15, 1985 of the Regional Trial Court, National Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled "Rommel's Marketing Corporation, etc. v. Philippine Bank of Commerce, now absorbed by Philippine Commercial and Industrial Bank."

The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for brevity), represented by its President and General Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce (PBC for brevity), now absorbed by the Philippine Commercial International Bank, the sum of P304,979.74 representing various deposits it had made in its current account with said bank but which were not credited to its account, and were instead deposited to the account of one Bienvenido Cotas, allegedly due to the gross and inexcusable negligence of the petitioner bank.

RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980-3 and 53-01748-7, with the Pasig Branch of PBC in connection with its business of selling appliances.

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 depositor, or the latter's agent or representative, who indicates therein the current account number to which the deposit is to be credited, the name of the depositor or current account holder, the date of the deposit, and the amount of the deposit either in cash or checks. The deposit slip has an upper portion or stub, which is detached and given to the depositor or his agent; the lower portion is 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 bank, while the duplicate copy is returned or given to the depositor.

From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash totalling P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the current accounts of RMC with PBC. It turned out, however, that these deposits, on all occasions, were not credited to RMC's account but were instead deposited to Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account with the same bank.

During this period, petitioner bank had, however, been regularly furnishing private respondent with monthly statements showing its current accounts balances. Unfortunately, it had never been the practice of Romeo Lipana to check these monthly statements of account reposing complete trust and confidence on petitioner bank.

Irene Yabut's modus operandi is far from complicated. She would accomplish two (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 duplicate copy was written the account number of her husband but the name of the account holder was left blank. PBC's teller, Azucena Mabayad, would, however, validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for record 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, which is that of her husband's, and make it appear to be RMC's account number, i.e., C.A. No. 53-01980-3. With the daily remittance records also prepared by Ms. Yabut and submitted to private respondent RMC together with the validated duplicate slips with the latter's name and account number, she made her company believe that all the while the amounts she deposited were being credited to its account when, in truth and in fact, they were being 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 knowledge.

Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money, but as its demand went unheeded, it filed a collection suit before the Regional Trial Court of Pasig, Branch 160. The trial court found petitioner bank negligent and ruled as follows:

WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Bank of Commerce, now absorbed by defendant Philippine Commercial & Industrial Bank, and defendant Azucena Mabayad to pay the plaintiff, jointly and severally, and without prejudice to any criminal action which may be instituted if found warranted:

1. The sum of P304,979.72, representing plaintiffs lost deposit, plus interest thereon at the legal rate from the filing of the complaint;

2. A sum equivalent to 14% thereof, as exemplary damages;

3. A sum equivalent to 25% of the total amount due, as and for attorney's fees; and

4. Costs.

Defendants' counterclaim is hereby dismissed for lack of merit. 2

On appeal, the appellate court affirmed the foregoing decision with modifications, viz:

WHEREFORE, the decision appealed from herein is MODIFIED in the sense that the awards of exemplary damages and attorney's fees specified therein are eliminated and instead, appellants are ordered to pay plaintiff, in addition to the principal sum of P304,979.74 representing plaintiff's lost deposit plus legal interest thereon from the filing of the complaint, P25,000.00 attorney's fees and costs in the lower court as well as in this Court. 3

Hence, this petition anchored on the following grounds:

1) The proximate cause of the loss is the negligence of respondent Rommel Marketing Corporation and Romeo Lipana in entrusting cash to a dishonest employee.

2) The failure of respondent Rommel Marketing Corporation to cross-check the bank's statements of account with its own records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds and misappropriation committed by Ms. Irene Yabut.

3) The duplicate copies of the deposit slips presented by respondent Rommel Marketing Corporation are falsified and are not proof that the amounts appearing thereon were deposited to respondent Rommel Marketing Corporation's account with the bank,

4) The duplicate copies of the deposit slips were used by Ms. Irene Yabut to cover up her fraudulent acts against respondent Rommel Marketing Corporation, and not as records of deposits she made with the bank. 4

The petition has no merit.

Simply put, the main issue posited before us is: What is the proximate cause of the loss, to the tune of P304,979.74, suffered by the private respondent RMC — petitioner bank's negligence or that of private respondent's?

Petitioners submit that the proximate cause of the loss is the negligence of respondent RMC and Romeo Lipana in entrusting cash to a dishonest employee in 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 the bank forewarned by RMC that Yabut will be depositing cash to its account. Thus, it was impossible for the bank to know the fraudulent design of Yabut considering that her husband, Bienvenido Cotas, also maintained an account with 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 entrusting cash to a dishonest employee which provided Ms. Irene Yabut the opportunity to defraud RMC. 6

Private respondent, on the other hand, maintains that the proximate cause of the loss was the negligent act of the bank, thru its teller Ms. Azucena Mabayad, in validating the deposit slips, both original and

duplicate, presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact that one of the deposit slips was not completely accomplished.

We sustain the private respondent.

Our law on quasi-delicts states:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. 7

In the case at bench, there is no dispute as to the damage suffered by the private respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in ascribing fault or negligence which caused the damage where the parties point to each other as the culprit.

Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. The seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith, 8 provides the test by which to determine the existence of negligence in a particular case which may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping and signing all the deposit slips 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 the bank with respect to the proper validation of deposit slips, original or duplicate, as testified to by Ms. Mabayad herself, thus:

Q: Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs. Mabayad your important duties and functions?

A: I accept current and savings deposits from depositors and encashments.

Q: Now in the handling of current account deposits of bank clients, could you tell us the procedure you follow?

A: The client or depositor or the authorized representative prepares a deposit slip by filling up the deposit slip with the name, the account number, the date, the cash breakdown, if it is deposited for cash, and the check number, the amount and then he signs the deposit slip.

Q: Now, how many deposit slips do you normally require in accomplishing current account deposit, Mrs. Mabayad?

A: The bank requires only one copy of the deposit although some of our clients prepare the deposit slip in duplicate.

Q: Now in accomplishing current account deposits from your clients, what do you issue to the depositor to evidence the deposit made?

A: We issue or we give to the clients the depositor's stub as a receipt of the deposit.

Q: And who prepares the deposit slip?

A: The depositor or the authorized representative sir?

Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad, is it with the deposit slip?

A: The depositor's stub is connected with the deposit slip or the bank's copy. In a deposit slip, the upper portion is the 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 tearing it sir.

Q: Now what do you do upon presentment of the deposit slip by the depositor or the depositor's authorized representative?

A: We see to it that the deposit slip 9 is properly accomplished and then we count the money and then we tally it with the deposit slip sir.

Q: Now is the depositor's stub which you issued to your clients validated?

A: Yes, sir. 10 [Emphasis ours]

Clearly, Ms. Mabayad failed to observe this very important procedure. The fact that the duplicate slip was not compulsorily required by the bank in accepting deposits should not relieve the petitioner bank of responsibility. The odd circumstance alone that such duplicate copy lacked one vital information — that of the name of the account holder — should have already put Ms. Mabayad on guard. Rather than readily validating the incomplete duplicate copy, she should have proceeded more cautiously by being more probing as to the true reason why the name of the account holder in the duplicate slip was left blank while that in

the original was filled up. She should not have been so naive in accepting hook, line and sinker the too shallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would simply fill up the blank space later on. 11 A "reasonable man of ordinary prudence" 12would not have given credence to such explanation and would have insisted that the space left blank be filled up as a condition for validation. Unfortunately, this was not how bank teller Mabayad proceeded thus resulting in huge losses to the private respondent.

Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig Branch of the petitioner bank and now its Vice-President, to the effect that, while he ordered the investigation of the incident, he never came to know that blank deposit slips were validated in total disregard of the bank's validation procedures, viz:

Q: Did he ever tell you that one of your cashiers affixed the stamp mark of the bank on the deposit slips and they validated the same with the machine, the fact that those deposit slips were unfilled up, is there any report similar to that?

A: No, it was not the cashier but the teller.

Q: The teller validated the blank deposit slip?

A: No it was not reported.

Q: You did not know that any one in the bank tellers or cashiers validated the blank deposit slip?

A: I am not aware of that.

Q: It is only now that you are aware of that?

A: Yes, sir. 13

Prescinding from the above, public respondent Court of Appeals aptly observed:

xxx xxx xxx

It was in fact only when he testified in this case in February, 1983, or after the lapse of more than seven (7) years counted from the period when the funds in question were deposited in plaintiff's accounts (May, 1975 to July, 1976) that bank manager Bonifacio admittedly became aware of the practice of his teller Mabayad of validating blank deposit slips. Undoubtedly, this is gross, wanton, and inexcusable negligence in the appellant bank's supervision of its employees. 14

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners.

Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v. Court of Appeals, 17 defines proximate cause as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity. Apropos, once again, is the pronouncement made by the respondent appellate court, to wit:

. . . . Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she would not have been able to deposit those funds in her husband's current account, and then make plaintiff believe that it was in the latter's accounts wherein she had deposited them, had it not been for bank teller Mabayad's aforesaid gross and reckless negligence. The latter's negligence was thus the proximate, immediate and efficient cause that brought about the loss claimed by plaintiff in this case, and the failure of plaintiff to discover the same soon enough by failing to scrutinize the monthly statements of account being sent to it by appellant bank could not have prevented the fraud and misappropriation which Irene Yabut had already completed when she deposited plaintiff's money to the account of her husband instead of to the latter's accounts. 18

Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. 19Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence. 20Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure.

At this juncture, it is worth to discuss the degree of diligence ought to be exercised by banks in dealing with their clients.

The New Civil Code provides:

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (1104a)

In the case of banks, however, the degree of diligence required is more than that of a good father of a family. Considering the fiduciary nature of their relationship with their depositors, banks are duty bound to treat the accounts of their clients with the highest degree of care. 21

As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the bank will deliver it as and to whomever he directs. A blunder on the part of the bank, such as the failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation.

The point is that as a business affected with public interest and because of the nature of its functions, the bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. In the case before us, it is apparent that the petitioner bank was remiss in that duty and violated that relationship.

Petitioners nevertheless aver that the failure of respondent RMC to cross-check the bank's statements of account with its own records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds and misappropriation committed by Ms. Irene Yabut.

We do not agree.

While it is true that had private respondent checked the monthly statements of account sent by the petitioner bank to RMC, the latter would have discovered the loss early on, such cannot be used by the petitioners to escape liability. This omission on the part of the private respondent does not change the fact that were it not for the wanton and reckless negligence of the petitioners' employee in validating the incomplete duplicate deposit slips presented by Ms. Irene Yabut, the loss would not have occurred. Considering, however, that the fraud was committed in a span of more than one (1) year covering various deposits,

common human experience dictates that the same would not have been possible without any form of collusion between Ms. Yabut and bank teller Mabayad. Ms. Mabayad 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 shall be ordered to pay in this case.

The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise negligent in not checking its monthly statements of account. Had it done so, the company would have been alerted to the series of frauds being committed against RMC by its secretary. The damage would definitely not have ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in their financial affairs. This omission by RMC amounts to contributory negligence which shall mitigate the damages that may be awarded to the private respondent 23 under Article 2179 of the New Civil Code, to wit:

. . . When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's fees, shall be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award of attorney's fees shall be borne exclusively by the petitioners.

WHEREFORE, the decision of the respondent Court of Appeals is modified by reducing the amount of actual damages private respondent is entitled to by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount they would pay the private respondent. Private respondent shall have recourse against Ms. Irene Yabut. In all other respects, the appellate court's decision is AFFIRMED.

Proportionate costs.

SO ORDERED.

Bellosillo, Vitug and Kapunan, JJ., concur.   Separate OpinionsPADILLA, J., dissenting:

I regret that I cannot join the majority in ruling that the proximate cause of the damage suffered by Rommel's Marketing Corporation (RMC) is mainly "the wanton and reckless negligence of the petitioner's employee in validating the incomplete duplicate deposit slips presented by Ms.

Irene Yabut" (Decision, p. 15). Moreover, I find it difficult to agree with the ruling that "petitioners are entitled to claim reimbursement from her (the bank teller) for whatever they shall be ordered to pay in this case."

It seems that an innocent bank teller is being unduly burdened with what should fall on Ms. Irene Yabut, RMC's own employee, who should have been charged with estafa or estafa through falsification of private document. Interestingly, the records are silent on whether RMC had ever filed any criminal case against Ms. Irene Yabut, aside from the fact that she does not appear to have been impleaded even as a party defendant in any civil case for damages. Why is RMC insulating Ms. Irene Yabut from liability when in fact she orchestrated the entire fraud on RMC, her employer?

To set the record straight, it is not completely accurate to state that from 5 May 1975 to 16 July 1976, Miss Irene Yabut had transacted with PCIB (then PBC) through only one teller in the person of Azucena Mabayad. In fact, when RMC filed a complaint for estafa before the Office of the Provincial Fiscal of Rizal, it indicted all the tellers of PCIB in the branch who were accused of conspiracy to defraud RMC of its current account deposits. (See Annex B, Rollo p. 22 and 47).

Even private respondent RMC, in its Comment, maintains that "when the petitioner's tellers" allowed Irene Yabut to carry out her modus operandi undetected over a period of one year, "their negligence cannot but be gross." (Rollo, p. 55; see also Rollo pp. 58 to 59). This rules out the possibility that there may have been some form of collusion between Yabut and bank teller Mabayad. Mabayad was just unfortunate that private respondent's documentary evidence showed that she was the attending teller in the bulk of Yabut's transactions with the bank.

Going back to Yabut's modus operandi, it is not disputed that each time Yabut would transact business with PBC's tellers, she would accomplish two (2) copies of the current account deposit slip. PBC's deposit slip, as issued in 1975, had two parts. The upper part was called the depositor's stub and the lower part was called the bank copy. Both parts were detachable from each other. The deposit slip was prepared and signed by the depositor or his representative, who indicated therein the current account number to which the deposit was to be credited, the name of the depositor or current account holder, the date of the deposit, and the amount of the deposit either in cash or in checks. (Rollo, p. 137)

Since Yabut deposited money in cash, the usual bank procedure then was for the teller to count whether the cash deposit tallied with the amount written down by the depositor in the deposit slip. If it did, then the teller proceeded to verify whether the current account number matched with the current account name as written in the deposit slip.

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 credits resulting from transactions with the bank were posted from books of original entry. Thus, it was only after the transaction was posted in the ledger that the teller proceeded to machine validate the deposit slip and then affix his signature or initial to serve as proof of the completed transaction.

It should be noted that the teller validated the depositor's stub in the upper portion and the bank copy on the lower portion on both the original and duplicate copies of the deposit slips presented by Yabut. The teller, however, detached the validated depositor's stub on the original deposit slip and allowed Yabut to retain the whole validated duplicate deposit slip that bore the same account number as the original deposit slip, but with the account name purposely left blank by Yabut, on the assumption that it would serve no other purpose but for a personal record to complement the original validated depositor's stub.

Thus, when Yabut wrote the name of RMC on the blank account name on the validated duplicate copy of the deposit slip, tampered with its account number, and superimposed RMC's account number, said act only served to cover-up the loss already caused by her to RMC, or after the deposit slip was validated by the teller in favor of Yabut's husband. Stated otherwise, when there is a clear evidence of tampering with any of the material entries in a deposit slip, the genuineness and due execution of the document become an issue in resolving whether or not the transaction had been fair and regular and whether the ordinary course of business had been followed by the bank.

It is logical, therefore, to conclude that the legal or proximate cause of RMC's loss was when Yabut, its employee, deposited the money of RMC in her husband's name and account number instead of that of RMC, the rightful owner of such deposited funds. Precisely, it was the criminal act of Yabut that directly caused damage to RMC, her employer, not the validation of the deposit slip by the teller as the deposit slip was made out by Yabut in her husband's name and to his account.

Even if the bank teller had required Yabut to completely fill up the duplicate deposit slip, the original deposit slip would nonetheless still be validated under the account of Yabut's husband. In fine, the damage had already been done to RMC when Yabut deposited its funds in the name and account number of her husband with petitioner bank. It is then entirely left to speculation what Yabut would have done afterwards — like tampering both the account number and the account name on the stub of the original deposit slip and on the duplicate copy — in order to cover up her crime.

Under the circumstances in this case, there was no way for PBC's bank tellers to reasonably foresee that Yabut might or would use the duplicate deposit slip to cover up her crime. In the first place, the bank tellers were absolutely unaware that a crime had already been consummated by Yabut when her transaction by her sole doing was posted in the ledger and validated by the teller in favor of her husband's account even if the funds deposited belonged to RMC.

The teller(s) in this case were not in any way proven to be parties to the crime either as accessories or accomplices. Nor could it be said that the act of posting 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 merely a remote cause which an

independent cause or agency merely took advantage of to accomplish something which was not the probable or natural effect thereof. That explains why Yabut still had to tamper with the account number of the duplicate deposit slip after filling in the name of RMC in the blank space.

Coming now to the doctrine of "last clear chance," it is my considered view that the doctrine assumes that the negligence of the defendant was subsequent to the negligence of the plaintiff and the same must be the proximate cause of the injury. In short, there must be a last and a clear chance, not a last possible chance, to avoid the accident or injury. It must have been a chance as would have enabled a reasonably prudent man in like position to have acted effectively to avoid the injury and the resulting damage to himself.

In the case at bar, the bank was not remiss in its duty of sending monthly bank statements to private respondent RMC so that any error or discrepancy in the entries therein could be brought to the bank's attention at the earliest opportunity. Private respondent failed to examine these bank statements not because it was prevented by some cause in not doing so, but because it was purposely negligent as it admitted that it does not normally check bank statements given by banks.

It was private respondent who had the last and clear chance to prevent any further misappropriation by Yabut had it only reviewed the status of its current 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 injury.

I vote to grant the petition.

 Footnotes

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. 153-154.13 Rollo, p. 43, citing TSN, 9 February 1983, pp. 10-12.14 Decision, p. 8; Rollo, p. 44.15 Supra., note 12 at 90.16 102 Phil. 181, 186 [1957].17 216 SCRA 51, 75 [1992].18 Decision, pp. 6-7; Rollo, pp. 42-43.19 LBC Air Cargo, Inc. v. Court of Appeals, 241 SCRA 619, 624 [1995], citing Picart v. Smith, supra.20 Ibid., citing Pantranco North Express, Inc. v. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware v. Intermediate Appellate Court, 173 SCRA 464.21 Metropolitan Bank and Trust Company v. Court of Appeals, 237 SCRA 761, 767 [1994]; Bank of the Phil. Islands v. Court of Appeals, supra., note 16 at 71.22 183 SCRA 360, 367 [1990], cited in Bank of the Phil. Islands v. Intermediate Appellate Court, 206 SCRA 408, 412-413 [1992]; City Trust Banking Corp. v. Intermediate Appellate Court, 232 SCRA 559, 564 [1994]; Metropolitan Bank and Trust Company v. CA, supra.23 Phoenix Construction, Inc. v. Intermediate Appellate Court, 148 SCRA 353, 368 [1987]; Del Prado v. Manila Electric Co., 52 Phil. 900, 906 [1929]; Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 375 [1907].

FIRST DIVISIONG.R. No. L-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner, vs.

CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents.

Valentin A. Zozobrado for petitioner.Ruperto N. Alfarara for respondents. GUTIERREZ, JR., J.:

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 exonerated the respondents from any liability arising from a vehicular accident.

The background facts which led to the filing of a complaint for breach of contract and damages against the respondents are summarized by the Court of First Instance of Cebu as follows:

The facts established after trial show that the plaintiff was a passenger of the public utility jeepney bearing plate No. PUJ-71-7 on the course of the trip from Danao City to Cebu City. The jeepney was driven by defendant Berfol Camoro. It was registered under the franchise of defendant Clemente Fontanar but was actually owned by defendant Fernando Banzon. When the jeepney reached Mandaue City, the right rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who was sitting at the front seat was thrown out of the vehicle. Upon landing on the ground, the plaintiff momentarily lost consciousness. When he came to his senses, he found that he had a lacerated wound on his right palm. Aside from this, he suffered injuries on his left arm, right thigh and on his back. (Exh. "D"). Because of his shock and injuries, he went back to Danao City but on the way, he discovered that his "Omega" wrist watch was lost. Upon his arrival in Danao City, he immediately entered the Danao City Hospital to attend to his injuries, and also requested his father-in-law to proceed immediately to the place of the accident and look for the watch. In spite of the efforts of his father-in-law, the wrist watch, which he bought for P 852.70 (Exh. "B") could no longer be found.

xxx xxx xxx

Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City Court of Cebu City, Branch I against Clemente Fontanar, Fernando Banzon and Berfol Camoro.

The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was beyond the control of the respondents taking into account that the tire that exploded was newly bought and was only slightly used at the time it blew up.

After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner and against the respondents. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and the latter are hereby ordered, jointly and severally, to pay the plaintiff the sum of P750.00 as reimbursement for the lost Omega wrist watch, the sum of P246.64 as unrealized salary of the plaintiff from his employer, the further sum of P100.00 for the doctor's fees and medicine, an additional sum of P300.00 for attorney's fees and the costs.

The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in question was due to a fortuitous event. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the plaintiff without pronouncement as to costs.

A motion for reconsideration was denied by the Court of First Instance.

The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal—

a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of the fact that defendants and/or their employee failed to exercise "utmost and/or extraordinary diligence" required of common carriers contemplated under Art. 1755 of the Civil Code of the Philippines.

b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary to the doctrine laid down by the Honorable Supreme Court in the case of Necesito et al. v. Paras, et al.

We find the petition impressed with merit.

The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in which the petitioner was riding blew up causing the vehicle to fall on its side. The petitioner questions the conclusion of the respondent court drawn from this finding of fact.

The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the tire blow out is a fortuitous event. The Court of First Instance of Cebu ruled that:

After reviewing the records of the case, this Court finds that the 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 exempts the carrier from liability, there being absence of a showing that there was misconduct or negligence on the part of the operator in the operation and maintenance of the vehicle involved. The fact that the right rear tire exploded, despite being brand new, constitutes a clear case of caso fortuito

which can be a proper basis for exonerating the defendants from liability. ...

The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, where the Court of Appeals ruled that:

A tire blow-out does not constitute negligence unless the tire was already old and should not have been used at all. Indeed, this would be a clear case of fortuitous event.

The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall facts from which a conclusion should be drawn. The reliance of the Court of First Instance on the Rodriguez case is not in order. In La Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:

Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not binding on this Court but were based on considerations quite different from those that obtain in the case at bar. The appellate court there made no findings of any specific acts of negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-out, by itself alone and without a showing as to the causative factors, would generate liability. ...

In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The evidence shows that the passenger jeepney was running at a very fast speed before the accident. We agree with the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the accident. The petitioner stated that there were three (3) passengers in the front seat and fourteen (14) passengers in the rear.

While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road conditions or that precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could have been caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of the accident.

In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito:

xxx xxx xxx

... In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. (5 Encyclopedia Juridica Espanola, 309.)

In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. Common carriers should teach their drivers not to overload their vehicles, not to exceed safe and legal speed limits, and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all times. Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al. (104 Phil. 75), that:

... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer, whenever it appears that the defect would have been discovered by the carrier if it had exercised the degree of care which under the circumstances was incumbent upon it, with regard to inspection and application of the necessary tests. For the purposes of this doctrine, the manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the work of constructing the appliance. According to this theory, the good repute of the manufacturer will not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann. Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not an insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. ...

It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by entering into the said contract, it binds itself to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of a very cautious

person, with a due regard for all the circumstances. The records show that this obligation was not met by the respondents.

The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages during the trial. The respondents submit that if the petitioner was really injured, why was he treated in Danao City and not in Mandaue City where the accident took place. The respondents argue that the doctor who issued the medical certificate was not presented during the trial, and hence not cross-examined. The respondents also claim that the petitioner was not wearing any wrist watch during the accident.

It should be noted that the City Court of Cebu found that the petitioner had a 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.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Alampay, JJ., concur.

EN BANCG.R. No. 71871 November 6, 1989

TEODORO M. HERNANDEZ, petitioner, vs.

THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent.

Al-Fred O. Concepcion for petitioner. CRUZ, J.:

It was one of those prosaic decisions not requiring deep thought or long deliberation. The petitioner arrived at it almost as a matter of course, applying what he believed then to be common sense. Little did he realize until later that it would cause him much anguish, even endanger his life, and ultimately lead to this litigation. But such are the quirks of fate.

At the time of the incident in question, Teodoro M. Hernandez was the officer-in-charge and special disbursing officer of the Ternate Beach Project of the Philippine Tourism Authority in Cavite. As such, he went to the main office of the Authority in Manila on July 1, 1983, to encash two checks covering the wages of the employees and the operating expenses of the Project. He estimated that the money would be available by ten o'clock in the morning and that he would be back in Ternate by about two o'clock in the afternoon of the same day. For some reason, however, the processing of the checks was delayed and was completed only at three o'clock that afternoon. The petitioner decided nevertheless to 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 would have to wait until the following Tuesday at the earliest when the main office would reopen. And so, on that afternoon of July 1, 1983, he collected the cash value of the checks and left the main office with not an insubstantial amount of money in his hands. 1

What would he do with the money in the meantime? The petitioner had two choices, to wit: (1) return to Ternate, Cavite, that same afternoon and arrive there in the early evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate the following morning. He 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 house in Bulacan.

It was while the vehicle was along Epifanio de los Santos Avenue that two persons boarded with knives in hand and robbery in mind. One pointed his weapon at the petitioner's side while the other slit his pocket and forcibly took the money he was carrying. The two then jumped out of the jeep and ran. Hernandez, after the initial shock, immediately followed in desperate pursuit. He caught up with Virgilio Alvarez and overcame him after a scuffle. The petitioner sustained injuries in the lip arms and knees. Alvarez was subsequently charged with robbery and pleaded guilty. But the hold-upper who escaped is still at large and the stolen money he took with him has not been recovered. 2

On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for relief from money accountability under Section 638 of the Revised Administrative Code. This was favorably indorsed by the General Manager of the Philippine Tourism Authority the same day 3 and by its Corporate Auditor on July 27, 1983. 4 The Regional Director, National Capital Region, of the Commission on Audit, made a similar recommendation on January 17, 1984, and also absolved Hernandez of negligence. 5 On June 29, 1984, however, the Commission on Audit, through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request, observing inter alia:

In the instant case, the loss of the P10,175.00 under the accountability of Mr. Hernandez can be attributed to his negligence because had he brought the cash proceeds of the checks (replenishment fund) to the Beach Park in Ternate, Cavite, immediately after encashment for safekeeping in his office, which is the normal procedure in the handling of public funds, the loss of said cash thru robbery could have been aborted. 6

In the petition at bar, Hernandez claims that the respondent Commission on Audit acted with grave abuse of discretion in denying him relief and in holding him negligent for the loss of the stolen money. He avers he has done only what any reasonable man would have done and should not be held accountable for a fortuitous event over which he had no control.

The petitioner stresses that he decided to encash the checks in the afternoon of July 1, 1983, which was a Friday, out of concern for the employees of the Project, who were depending on him to make it possible for them to collect their pay the following day. July 2 and 3 being non-working days and July 4 being a holiday, they could receive such payment only on the following Tuesday unless he brought the encashed checks on July 1, 1983, and took it to Ternate the following day.

On his decision to take the money home that afternoon instead of returning directly to Ternate, he says that the first course was more prudent as he saw it, if only because his home in Marilao, Bulacan, was much nearer than his office in Ternate, Cavite. The drive to Ternate would take three hours, including a 30-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 reach his destination before nightfall. By contrast, the road to Marilao was nearer and safer (or so he reasonably thought) and there was less risk involved in his taking the money the following morning to Ternate rather than on that same afternoon of July 1.

The petitioner maintains that the likelihood of robbery during the time in 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 was a fortuitous event that could not have reasonably been foreseen, especially on that busy highway. At any rate, he contends, he had not been remiss in protecting the money in his custody; in fact, he immediately pursued the hold-uppers and succeeded in catching one of them who was subsequently prosecuted and convicted. It might have been different if he had simply resigned himself to the

robbery and allowed the culprits to go scot-free. But he acted. His action after the robbery only goes to show his vigilance over the money entrusted to his custody and his readiness to protect it even at great personal risk.

In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial of the petitioner's request, arguing that Hernandez was negligent in the safekeeping of the stolen funds as correctly found by the Commission on Audit. 7 Later, however, his successor, Solicitor General Francisco I. Chavez, submitted a Manifestation in Lieu of Memorandum in which he sided with the petitioner, agreeing that Hernandez had not committed any negligence or, assuming he was guilty of contributory negligence, had made up for it with his efforts to retrieve the money and his capture of one of the robbers, who was eventually convicted. 8 This prompted the respondent Commission on Audit to submit its own memorandum.

The Commission on Audit insists in this memorandum that the petitioner should not be relieved from his money accountability because it was his own negligence that led to the loss of the cash he had sought to take not to Ternate in Cavite but to Marilao.

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 before nightfall. Knowing this, he should have prudently deferred encashing the checks until the morning of the next working day on July 5, 1983, when he could have safely taken the money to Ternate. His alleged concern for the convenience of his fellow workers was not really a valid reason because one of the checks he had encashed, in the greater amount of P6,964.00, was in fact not for salaries and wages but for the operating expenses of the Project. There was no urgency to encash that check. Moreover, if it is true that he had that much concern for the employees, he should have gone to the main office earlier than July 1, 1983, since the vouchers representing the checks had already been prepared as of June 29, 1983.

The memorandum concludes that in deciding to take the money with him to Marilao after imprudently withdrawing it from the main office, the petitioner was assuming a risk from which he cannot now be excused after the loss of the money as a result of the robbery to which it was unreasonably exposed. In any event, the burden of proof in petitions for relief from money accountability rests with the petitioner, who has not clearly established that the loss of the money was not the result of his negligence.

Section 638 of the Revised Administrative Code reads as follows:

Section 638. Credit for loss occurring in transit or due to casualty — Notice to Auditor. — When a loss of government funds or property occurs while the same is in transit or is caused by fire, theft, or other casualty, the officer accountable therefor or having custody thereof shall immediately notify the Auditor General, or the provincial auditor, according as a matter is within the original jurisdiction of the one or the other, and within thirty days or such longer period as the Auditor, or provincial auditor, may in the

particular case allow, shall present his application for relief, with the available evidence in support thereof. An officer who fails to comply with this requirement shall not be relieved of liability or allowed credit for any such loss in the settlement of his accounts.

This provision has since then been reiterated, with some slight modification, in Section 73 of P.D. No. 1445, otherwise known as the "Government Auditing Code of the Philippines," which was promulgated on June 11. 1978.

Applying the letter and spirit of the above-mentioned laws, and after considering the established facts in the light of the arguments of the parties, this Court inclines in favor of the petitioner.

Hindsight is a cruel judge. It is so easy to say, after the event, that one should have done this and not that or that he should not have acted at all, or else this problem would not have arisen at all. That is all very well as long as one is examining something that has already taken place. One can hardly be wrong in such a case. But the trouble with this retrospective assessment is that it assumes for everybody an uncanny prescience that will enable him by some mysterious process to avoid the pitfalls and hazards that he is expected to have foreseen. It does not work out that way in real life. For most of us, all we can rely on is a reasoned conjecture of what might happen, based on common sense and our own experiences, or our intuition, if you will, and without any mystic ability to peer into the future. So it was with the petitioner.

It is pointless to argue that Hernandez should have encashed the vouchers earlier because they were dated anyway on June 29, 1983. He was not obliged to encash the checks earlier and then again there might have been any number of reasons why he did so only on July 1, 1983. The point is that he did encash the checks on that date and took the money to Marilao and not Ternate in view of the lateness of the hour. The question before us is whether these acts are so tainted with negligence or recklessness as to justify the denial of the petitioner's request for relief from accountability for the stolen money.

It seems to us that the petitioner was moved only by the best of motives when he encashed the checks on July 1, 1983, so his co-employees in Ternate could collect their salaries and wages the following day. Significantly, although this was a non-working day, he was intending to make the trip to his office the following day for the unselfish purpose of accommodating his fellow workers. The other alternative was to encash the check is on July 5, 1983, the next working day after July 1, 1983, which would have meant a 5-day wait for the payment of the said salaries and wages. Being a modest employee himself, Hernandoz must have realized the great discomfort it would cause the laborer who were dependent on their wages for their sustenance and were anxious to collect their pay as soon as possible.

For such an attitude, Hernandez should be commended rather than faulted.

As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one could easily agree that the former was the safer destination, being

nearer, and in view of the comparative hazards in the trips to the two places. It is true that the petitioner miscalculated, but the Court feels he should not be blamed for that. The decision he made seemed logical at that time and was one that could be expected of a reasonable and prudent person. And if, as it happened, the two robbers attacked him in broad daylight in the jeep while it was on a busy highway, and in the presence of other passengers, it cannot be said that all this was the result of his imprudence and negligence. This was undoubtedly a fortuitous event covered by the said provisions, something that could not have been reasonably foreseen although it could have happened, and did.

We find, in sum, that under the circumstances as above narrated, the petitioner is entitled to be relieved from accountability for the money forcibly taken from him in the afternoon of July 1, 1983. To impose such liability upon him would be to read the law too sternly when it should be softened by the proven facts.

ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs. It is so ordered.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur. Footnotes

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.

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

GOTESCO INVESTMENT CORPORATION, petitioner, vs.

GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

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

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

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

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

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

Physical injuries:

Contusions:

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

Abrasions:

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

Conclusion, cerebral.

X-Ray — Skull; Thoraco-lumbarregion — All negative.

CONCLUSIONS

1. Physical injuries rioted on the subject.

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

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

xxx xxx xxx

Physical injuries:

Lacerated wounds:

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

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

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

Concusion (sic), cerebral.

X-Ray — Skull — Negative.Cervical spines Straightening of cervical spine, probably to muscular spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

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

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

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure. It maintained that its theater did not suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5) 3

In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court said:

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

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

The plaintiffs are entitled to moral damages, which are the direct and proximate result of the defendants gross negligence and omission. Such moral damages include the plaintiffs' physical suffering, mental anguish, fright and serious anxiety. On the part of Mrs. Chatto, who

obviously suffered much more pain, anguish, fright and anxiety than her daughter Lina Delza, such damages are compounded by the presence of permanent deformities on her body consisting of a 6-inch scar on the head and a 2-inch scar on one arm. The court believes that the sum of P75,000.00 for plaintiff Gloria E. Chatto and the sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be reasonable. 4

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

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS AND CERTIFICATIONS OF THE CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.

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

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

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

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

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

of the ceiling of defendant-appellant's theater. Their existence is crystal clear.

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

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

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

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

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

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

Atty. Barcelona:

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

A Yes, sir.

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

A Yes, whenever I can.

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

A Yes, sir.

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

A Yes, in that (sic) months.

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

Atty. Barcelona: continuing

particularly Superama 1 the ceiling had collapsed?

A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

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

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

Atty. Florido:

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

COURT:

Objection sustained.

Atty. Barcelona:

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

A Yes, sir.

Atty. Florido:

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

COURT:

Sustained.

Atty. Barcelona;

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

A He asked for a thorough investigation.

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

A Yes, sir.

Q Did you come out with any investigation report.

A There was nothing to report.

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

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

1. The basis of the award for damages stems from medical reports issued by private physicians of local hospitals without benefit of cross-examination and more

seriously, xerox copies of medical findings issued by American doctors in the United States without the production of originals, without the required consular authentication for foreign documents, and without the opportunity for cross-examination.

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

3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of the building was not seriously considered by the Court of Appeals, considering that frequent inspections and maintenance precautions had to be observed by hired engineers of petitioner, which enjoys an unsullied reputation in the business of exhibiting movies in a chain of movie houses in Metro Manila. 9

After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this Court resolved to give due course to the petition and required the parties to file their respective Memoranda. Subsequently, private respondents, in a motion, prayed for leave to adopt their Comment as their Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum on 10 January 1990.

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

We find no merit in the petition.

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

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

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

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

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

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

Bouvier defines the same as —

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

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

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

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

Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the respondent Court impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the government's examination. Verily, post-incident investigation cannot be considered as material to the present proceedings. What is significant is the finding of the trial court, affirmed by the respondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn this finding. The building was constructed barely four (4) years prior to the accident in question. It was not shown that any of the causes denominates as force

majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His answers to the leading questions on inspection disclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was ever inspected at all.

It is settled that:

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

This implied warranty has given rise to the rule that:

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

That presumption or inference was not overcome by the petitioner.

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

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

evidence. It could not then be successfully argued by petitioner that the admission of the exhibits violated the hearsay rule. As this Court sees it, the trial court admitted such merely as independently relevant statements, which was not objectionable, for:

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

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

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

All told, the instant petition is without merit.

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

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur. Footnotes

1 Per Associate Justice Reynato S. Puno, concurred in by Associate Justices Alfredo M. Marigomen and Regina G. Ordoñez-Benitez; Rollo, 24, et seq.2 Id., 36-37.3 Rollo, 24-26.4 Rollo, 26-27.5 Rollo, 27-28.6 34 Phil. 739 [1916]7 Rollo, 29-30.8 Rollo, 30-32.9 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 DIVISIONG.R. No. L-36481-2 October 23, 1982

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

PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.

Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant. ESCOLIN, J.:

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

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

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

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

Clara Uy Bico —1,528 cavans of rice valuedat P40,907.50;

Amparo Servando —44 cartons of colored paper,toys and general merchandise valued at P1,070.50;

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

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

On the bases of the foregoing facts, the lower court rendered a decision, the decretal portion of which reads as follows:

WHEREFORE, judgment is rendered as follows:

1. In case No. 7354, the defendant is hereby ordered to pay the plaintiff Amparo C. Servando the aggregate sum of P1,070.50 with legal interest thereon from the date of

the filing of the complaint until fully paid, and to pay the costs.

2. In case No. 7428, the defendant is hereby ordered to pay to plaintiff Clara Uy Bico the aggregate sum of P16,625.00 with legal interest thereon from the date of the filing of the complaint until fully paid, and to pay the costs.

Article 1736 of the Civil Code imposes upon common carriers the duty to observe extraordinary diligence from the moment the goods are unconditionally placed in their possession "until the same are delivered, actually or constructively, by the carrier to the consignee or to the person who has a right to receive them, without prejudice to the provisions of Article 1738. "

The court a quo held that the delivery of the shipment in question to the warehouse of the Bureau of Customs is not the delivery contemplated by Article 1736; and since the burning of the warehouse occurred before actual or constructive delivery of the goods to the appellees, the loss is chargeable against the appellant.

It should be pointed out, however, that in the bills of lading issued for the cargoes in question, the parties agreed to limit the responsibility of the carrier for the loss or damage that may be caused to the shipment by inserting therein the following stipulation:

Clause 14. Carrier shall not be responsible for loss or damage to shipments billed 'owner's risk' unless such loss or damage is due to negligence of carrier. Nor shall carrier be responsible for loss or damage caused by force majeure, dangers or accidents of the sea or other waters; war; public enemies; . . . fire . ...

We sustain the validity of the above stipulation; there is nothing therein that is contrary to law, morals or public policy.

Appellees would contend that the above stipulation does not bind them because it was printed in fine letters on the back-of the bills of lading; and that they did not sign the same. This argument overlooks the pronouncement of this Court in Ong Yiu vs. Court of Appeals, promulgated June 29, 1979, 3 where the same issue was resolved in this wise:

While it may be true that petitioner had not signed the plane ticket (Exh. '12'), he is nevertheless bound by the provisions thereof. 'Such provisions have been held to be a part of the contract of carriage, and valid and binding upon the passenger regardless of the latter's lack of knowledge or assent to the regulation'. It is what is known as a contract of 'adhesion', in regards which it has been said that contracts of adhesion wherein one party imposes a ready made form of contract on the other, as the plane ticket in the case at bar, are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres, he

gives his consent." (Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49).

Besides, the agreement contained in the above quoted Clause 14 is a mere iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code:

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

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for non-performance. The Partidas, 4 the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers.'

In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Espanola 5 says: "In a legal sense and, consequently, also in relation to contracts, a 'caso fortuito' presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor." In the case at bar, the burning of the customs warehouse was an extraordinary event which happened independently of the will of the appellant. The latter could not have foreseen the event.

There is nothing in the record to show that appellant carrier ,incurred in delay in the performance of its obligation. It appears that appellant had not only notified appellees of the arrival of their shipment, but had demanded that the same be withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken delivery of 907 cavans of rice before the burning of the warehouse.

Nor can the appellant or its employees be charged with negligence. The storage of the goods in the Customs warehouse pending withdrawal thereof by the appellees was undoubtedly made with their knowledge and consent. Since the warehouse belonged to and was maintained by the government, it would be unfair to impute negligence to the appellant, the latter having no control whatsoever over the same.

The lower court in its decision relied on the ruling laid down in Yu Biao Sontua vs. Ossorio 6, where this Court held the defendant liable for damages arising from a fire caused by the negligence of the defendant's employees while loading cases of gasoline and petroleon products. But

unlike in the said case, there is not a shred of proof in the present case that the cause of the fire that broke out in the Custom's warehouse was in any way attributable to the negligence of the appellant or its employees. Under the circumstances, the appellant is plainly not responsible.

WHEREFORE, the judgment appealed from is hereby set aside. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.  Separate OpinionsAQUINO, J., concurring:

I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in the warehouse of the carrier at the place of destination, until the consignee has been advised of the arrival of the goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of them".

From the time the goods in question were deposited in the Bureau of Customs' warehouse in the morning of their arrival up to two o' clock in the afternoon of the same day, when the warehouse was burned, Amparo C. Servando and Clara Uy Bico, the consignees, had reasonable opportunity to remove the goods. Clara had removed more than one-half of the rice consigned to her.

Moreover, the shipping company had no more control and responsibility over the goods after they were deposited in the customs warehouse by the arrastre and stevedoring operator.

No amount of extraordinary diligence on the part of the carrier could have prevented the loss of the goods by fire which was of accidental origin.

Under those circumstances, it would not be legal and just to hold the carrier liable to the consignees for the loss of the goods. The consignees should bear the loss which was due to a fortuitous event.

  Footnotes

1 Exhibits A, B, C, D, E, F, G and H.2 Par. IV, Complaint; p. 23, Record on Appeal.

Page 8363 91 SCRA 224.4 Law 11, Title 33, Partida 7.5 Enciclopedia Juridicada Espanola.6 43 Phil. 511.

THIRD DIVISIONG.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners, vs.

THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.

The Solicitor General for plaintiff-appellee.Ponciano G. Hernandez for private respondents. DAVIDE, JR., J.:This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which reversed the Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court) of Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin Chavez jointly and severally liable to the private respondents for actual and moral damages, litigation expenses and attorney's fees.This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and other damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants' knowledge, as early as 24 October 1978, of the impending entry of typhoon "Kading," they failed to exercise due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby releasing a large amount of water which inundated the banks of the Angat River; and 5) as a consequence, members of the household of the plaintiffs, together with their animals, drowned, and their properties were washed away in the evening of 26 October and the early hours of 27 October 1978. 3

In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the residents therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advise them to take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of the dam and avoid greater damage to

people and property; 5) in spite of the precautions undertaken and the diligence exercised, they could still not contain or control the flood that resulted and; 6) the damages incurred by the private respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. By way of special affirmative defense, the defendants averred that the 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 conducted. As a result thereof, the trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to sue and be 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 reinstatement of the complaints as against the NPC. 5

Being closely interrelated, the cases were consolidated and trial thereafter ensued.The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of sufficient and credible evidence." 6 Consequently, the private respondents seasonably appealed therefrom to the respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93.In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded damages in favor of the private respondents. The dispositive portion of the decision reads:

CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED and SET ASIDE, and a new one is hereby rendered:1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally, plaintiffs-appellants, with legal interest from the date when this decision shall become final and executory, the following:A. Actual damages, to wit:

1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty Pesos (P231,260.00);2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos (P204.500.00);3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos (P147,000.00);.5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two Pesos and Fifty Centavos (P143,552.50);6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00);7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and

B. Litigation expenses of Ten Thousand Pesos (P10,000.00);2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiff-appellant, with legal interest from the date when this decision shall have become final and executory, the following :

A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);.B. Moral damages of five hundred Thousand Pesos (P500,000.00); and.C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.

3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when this decision shall have become final and executory;A. Plaintiff-appellant Angel C. Torres:1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos (P199,120.00);2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);B. Plaintiff-appellant Norberto Torres:1) Actual damages of Fifty Thousand Pesos (P50,000.00);2) Moral damages of Fifty Thousand Pesos (P50,000.00);C. Plaintiff-appellant Rodelio Joaquin:

1) Actual damages of One Hundred Thousand Pesos (P100,000.00);2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and

D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when this decision shall have become final and executory :A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:

1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos (P256,600.00);2) Moral damages of Fifty Thousand Pesos (P50,000.00);

B. Plaintiff-appellant Consolacion Guzman :1) Actual damages of One Hundred forty Thousand Pesos (P140,000.00);2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Virginia Guzman :1) Actual damages of Two Hundred Five Hundred Twenty Pesos (205,520.00); and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).

In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and severally, plaintiffs-appellants attorney fees in an amount equivalent to 15% of the total amount awarded.No pronouncement as to costs. 7

The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of:

. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management and operation of Angat Dam. The unholiness of the hour, the extent of the opening of the spillways, And the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1) kilometer away from the Angat River bank would have been avoided had defendants-appellees prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room for the expected torrential rains. 8

This conclusion, in turn, is anchored on its findings of fact, to wit:As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and imminent danger posed by typhoon "Kading". For as alleged by defendants-appellees themselves, the coming of said super typhoon was bannered by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as "Super Howler to hit R.P." The next day, October 26, 1978, said typhoon once again merited a headline in said newspaper as "Kading's Big Blow expected this afternoon" (Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees learned of typhoon "Kading' through radio announcements (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247, Exhibit "G-6").Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even beyond its maximum and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain water that will inevitably be brought by the coming typhoon.On October 24, 1978, before typhoon "Kading" entered the Philippine area of responsibility, water elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon "Kading" entered the Philippine area of responsibility, and public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised

to number two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to 217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978, when public storm signal number three remained hoisted over Bulacan, the water elevation still remained at its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2 meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978, releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27, 1978, water elevation remained at a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F-1").xxx xxx xxxFrom the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of October 26, 1978 up to the morning hours of October 27,1978. 9

The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 which read:

TO ALL CONCERN (sic):

Please be informed that at present our reservoir (dam) is full and that we have been releasing water intermittently for the past several days.

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 keep alert and stay in safe places.

BENJAMIN L. CHAVEZ

Power Plant Superintendent 10

because:

Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by defendants-appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN,

Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12).Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the persons so served, for the volume of water to be released, which turned out to be of such magnitude, that residents near or along the Angat River, even those one (1) kilometer away, should have been advised to evacuate. Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of Norzagaray. Said notice was not thus addressed and delivered to the proper and responsible officials who could have disseminated the warning to the residents directly affected. As for the municipality of Sta. Maria, where plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice does not appear to have been served. 11

Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the petitioners' plea that the incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for any kind of damage — such damage being in the nature of damnum absque injuria.The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the public respondents, 13 were denied by the public respondent in its Resolution of 27 December 1991. 14

Petitioners thus filed the instant petition on 21 February 1992.After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by the petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their respective Memoranda, 15 which they subsequently complied with.The petitioners raised the following errors allegedly committed by the respondent Court :

I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V. COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE.II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT.III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16

These same errors were raised by herein petitioners in G.R. No. 96410, 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 subject of the instant petition. In no uncertain terms,

We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs therein — who were similarly situated as the private respondents herein — was the negligence of the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the affected municipalities, the same notice involved in the case at bar, was insufficient. We thus cannot now rule otherwise not only because such a decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of lives and the destruction to property in both cases, but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that "the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness." 18 Its findings and conclusions are biding upon Us, there being no showing of the existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated, the challenged decision can stand on its own merits independently of Our decision in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as far as the concurrent liability of an obligor in the case of force majeure is 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 obligation must be independent of the will of the debtor; (b) the event must be either unforseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his obligation in a moral manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability.The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be

considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).Thus it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21

Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss or damage sustained by private respondents since they, the petitioners, were guilty of negligence. The event then was not occasioned exclusively by an act of God or force majeure; a human factor — negligence or imprudence — had intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from the participation of man. Thus, the whole occurrence was thereby humanized, as it were, and removed from the laws applicable to acts of God.WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners.SO ORDERED.

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

# Footnotes1 Annex "A" of Petition; Rollo, 34-53. Per Associate Justice Venancio D. Aldecoa, Jr., concurred in by Associate Justices Luis L. Victor and Filemon N. Mendoza.2 Civil Case No. SM-950 entitled "GAUDENCIO C. RAYO, BIENVENIDO P. PASCUAL, TOMAS MANUEL, PEDRO C. BARTOLOME, BERNARDO CRUZ, JOSE PALAD, MARIANO CRUZ AND LUCIO FAJARDO versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 20 December 1978;Civil Case No. SM-951 entitled "FRANCISCO RAYOS versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 29 December 1978Civil Case No. SM-953 entitled "ANGEL C. TORRES, NORBERTO TORRES AND RODELIO JOAQUIN versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 4 January 1978; and

Civil Case No. SM-1247 entitled "PRESENTACION LORENZO, CLODUALDO LORENZO, CONSOLACION GUZMAN AND VIRGINIA GUZMAN, in her behalf and as natural guardian of her minor children, RODELIO, MINERVA AND EMERSON, all surnamed GUZMAN, versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 29 January 1982.3 CA Decision, 3; Rollo, 37.4 Id., 3-4; Id., 37-38.5 CA Decision, 4; Rollo, 38.6 Id., 2; Id., 36.7 Rollo, 51-53.8 Rollo, 40.9 Rollo, 39-41.10 Rollo, 41.11 Id., 42.12 144 SCRA 596 [1986], quoted in National Power Corp. vs. Court of Appeals, 161 SCRA 334 [1988].13 In the matter of when interest on the damages awarded will accrue, the Court of Appeals ruled that interest shall be paid only from the time its decision shall have become final and executory.14 Rollo, 56-57.15 Id., 166.16 Rollo, 16.17 211 SCRA 162 [1992].18 Supra.19 Remalante vs. Tibe, 158 SCRA 138 [1988]; Median vs. Asistio, Jr., 191 SCRA 218 [1990].20 Supra.21 Supra, at 606-607.

THIRD DIVISIONG.R. No. 126389 July 10, 1998

SOUTHEASTERN COLLEGE INC., petitioner,vs.

COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION

DIMAANO and MILAGROS DIMAANO, respondents. PURISIMA, J.:

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

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

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

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

It then recommended that "to avoid any further loss and damage to lives, limbs and property of persons living in the vicinity," the

fourth floor of subject school building be declared as a "structural hazard."

In their 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 in others' houses. And so they sought to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorney's fees; plus costs.

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

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

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

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

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorney's fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did in a wanton fraudulent, reckless, oppressive or malevolent manner.

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

I

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING", AS AN ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON" FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERN'S FOUR (4) STOREY SCHOOL BUILDING.

II

THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF THE ROOF OF DEFENDANT'S SCHOOL BUILDING WAS FAULTY" NOTWITHSTANDING THE ADMISSION

THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING" WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.

III

THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS ATTORNEY'S FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.

IV

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

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

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

2. Whether or not the award of moral damages to respondent Dimaanos, with the latter having suffered, actual damage has legal basis.

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

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

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

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

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

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the

obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.

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

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

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

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

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. 15 In order to be exempt from liability arising from any adverse consequence engendered thereby, there should have been no human participation amounting to a negligent act. 16 In other words; the person seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and vigilance which the circumstances justify demand, 17 or the omission to do something which a prudent and reasonable man, guided by

considerations which ordinarily regulate the conduct of human affairs, woulddo. 18 From these premises, we proceed to determine whether petitioner was negligent, such that if it were not, the damage caused to private respondents' house could have been avoided?

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

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

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

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

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

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

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the construction and maintenance of its school building in question and that typhoon "Saling" was the proximate cause of the damage suffered by private respondents' house.

With this disposition on the pivotal issue, private respondents' claim for actual and moral damages as well as attorney's fees must fail. 24 Petitioner cannot be made to answer for a purely fortuitous event. 25 More so because no bad faith or willful act to cause damage was alleged and proven to warrant moral damages.

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

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

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

WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly,

private respondents are ORDERED to return to petitioner any amount or property received by them by virtue of said writ. Costs against the private respondents.

SO ORDERED.

Narvasa, C.J., Romero and Kapunan, JJ., concur.

# Footnotes1 Rollo, pp. 28-41.2 Ibid., p. 42.3 Seventh Division, composed of J. Jose dela Rama, ponente; with JJ. Emeterio C. Cui (chairman) and Eduardo G. Montenegro, concurring.4 CA Decision, p. 13; Rollo, p. 40.5 Records, pp. 127-128.6 Ibid., pp. 1-3.7 CA, rollo, pp. 63-69.8 Rollo, pp. 20-21.9 Tolentino, Civil Code of the Philippines, 1991 ed., Col IV, p. 126.10 Ibid.11 Ibid.12 Ibid., p. 130, citing Tan Chiong vs. Inchausti, 22 Phil 152, 1912. Nakpil & Sons vs. Court of Appeals, 144 SCRA 596, 607, October 3, 1986. See also Metal Forming Corporation vs. Office of the President, 247 SCRA 731, 728-739, August 28, 1995.13 Nakpil & Sons, vs. Court of Appeals, Ibid., pp. 606-607. See also Ilocos Norte Electric Co. vs. Court of Appeals, 179 SCRA 5, 15, November 6, 1989.14 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, 1995.18 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, 1915.

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, 1915.23 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, 1995.

EN BANCG.R. No. L-2075            November 29, 1949

MARGARITA AFIALDA, plaintiff-appellant, vs.

BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.

Nicolas P. Nonato for appellant.Gellada, Mirasol and Ravena for appellees.

REYES, J.:

This is an action for damages arising from injury caused by an animal. The complaint alleges that the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation; that while tending the animals he was, on March 21, 1947, gored by one of them and later died as a consequence of his injuries; that the mishap was due neither to his own fault nor to force majeure; and that plaintiff is his elder sister and heir depending upon him for support.

Before filing their answer, defendants moved for the dismissal of the complaint for lack of a cause of action, and the motion having been granted by the lower court, plaintiff has taken this appeal.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal should escape from him or stray away.

This liability shall cease only in case, the damage should arise from force majeure or from the fault of the person who may have suffered it.

The question presented is whether the owner of the animal is liable when damage 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.)

This opinion, however, appears to have been rendered in a case where an animal 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 distinction is important. For the statute names the possessor or user of the animal as the person liable for "any damages it may cause," and this for the obvious 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.

In the present case, the animal was in custody and under the control of the 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, including himself. And being injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be "a veritable accident of labor" which should come under the labor laws rather than under article 1905 of the Civil Code. The present action, however, is not brought under the Workmen's Compensation Act, there being no allegation that, among other things, defendant's business, whatever that might be, had a gross income of P20,000. As already stated, defendant's liability is made to rest on article 1905 of the Civil Code. but action under that article is not tenable for the 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 defendants as owners of the animal that caused the damage. But the complaint contains no allegation on those points.

There being no reversible error in the order appealed from, the same is hereby affirmed, but without costs in view of the financial situation of the appellant.

Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres, JJ., concur.

SECOND DIVISIONG.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs.

HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG,

and PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.Glicerio S. Ferrer for private respondents. PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts

for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had 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 request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had 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 electric post.

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 Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been

electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. As a public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the

real cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of theres gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of "assumption of risk" in the present case to bar private respondents from collecting damages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.

6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to discredit the testimonies of these two young ladies. They were one in the affirmation that the deceased, while wading in the

waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were stopped by the sight of an electric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that the water was grounded. These bits of evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo)

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.

The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We considered part of the res gestae a conversation between two accused immediately after commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a circumstance, it is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that the statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout

was a translation of an actuality as perceived by him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination:

Q. And that Erning de la Cruz, how far did he reach from the gate of the house?

A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not taken.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in disposing the argument that petitioner be exonerated from liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took place. We subscribe to the conclusions of the respondent CA when it found:

On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower court found "that the electric lines and other equipment of defendant corporation were properly maintained by a well-trained team of lineman, technicians and engineers working around the clock to insure that these equipments were in excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of theemergency situation brought about by the typhoon.

The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of the

typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. onJune 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be inconstant vigil to prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that defendant did that. On the contrary, evidence discloses that there were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)

Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"... considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note the

surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact, pointing to the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and president-manager to the effect that it had exercised the degree of diligence required of it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were 'burns', and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (supra).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra).

The foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming the negligence of petitioner. To aggravate matters, the CA found:

. . .even before June 28 the people in Laoag were already alerted about the impending typhoon, through radio announcements. Even the fire department of the city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current were noted because "amperes of the switch volts were moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously considered the factual circumstances at hand pursuant to its power to review questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.

The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).

WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

 Footnotes

* Penned by then Acting Presiding Justice Lourdes P. San Diego and concurred in by Justices Samuel F. Reyes and Lino M. Patajo.

EN BANCG.R. No. L-22533             February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, vs.

PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.Trinidad & Borromeo for respondents.

BENGZON, J.P., J.:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I.1 and Andres Bonifacio in the Court of First Instance of Manila as a consequence of a collision, on May 10, 1958, involving the car of Placido Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at the time of the collision driven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.

After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio negligent and declaring that PEPSI-COLA had not sufficiently proved its having exercised the due diligence of a good father of a family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as exemplary damages; and, P1,000.00 attorney's fees, with costs.

Not satisfied with this decision, the defendants appellee to the Court of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding that, contrary to the plaintiffs' contention, PEPSI-COLA sufficiently proved due diligence in the selection of its driver Bonifacio.

Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals' decision. And appellants would argue before this Court that defendant PEPSI-COLA's evidence failed to show that it had exercised due diligence in the selection of its driver in question.

Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus:

The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company, was to the effect that defendant driver was first hired as a member of the bottle crop in the production department; that when he was hired as a driver, 'we had size [sic] him by looking into his background, asking him to submit clearances, previous experience, physical examination and later on, he was sent to the pool house to take the usual driver's examination, consisting of: First, theoretical examination and second, the practical driving examination, all of which he had

undergone, and that the defendant company was a member of the Safety Council. In view hereof, we are of the sense that defendant company had exercised the diligence of a good father of a family in the choice or selection of defendant driver'. In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our Supreme Court had occasion to put it down as a rule that "In order that the defendant may be considered as having exercised all the diligence of a good father of a family, he should not have been satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experiences and record of service." Defendant Company has taken all these steps.2

Appellants herein seek to assail the foregoing portion of the decision under review by taking issue with the testimony of Anasco upon which the findings of due diligence aforestated are rested. Thus, it is now contended that Añasco being PEPSI-COLA's employee, is a biased and interested witness; and that his testimony is not believable.

It is rather clear, therefore, that appellants would raise herein an issue of fact and credibility, something as to which this Court has consistently respected the findings of the Court of Appeals, with some few exceptions, which do not obtain herein.3

Stated differently, Añascos credibility is not for this Court now to re-examine. And said witness having been found credible by the Court of Appeals, his testimony, as accepted by said Court, cannot at this stage be assailed. As We said in Co Tao vs. Court of Appeals, L-9194, April 25, 1957, assignments of error involving the credibility of witnesses and which in effect dispute the findings of fact of the Court of Appeals, cannot be reviewed in these proceedings. For a question to be one of law it must involve no examination of the probative value of the evidence presented by the litigants or any of them. 4 And the distinction is well-known: There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts.5

From all this it follows that for the purposes of this appeal, it must be taken as established that, as testified to by Añasco, PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio as to his qualifications, experiences and record of service, taking all steps mentioned by the Court of Appeals in its decision already quoted.1äwphï1.ñët

Such being the case, there can be no doubt that PEPSI-COLA exercised the required due diligence in the selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G. 2794, 2797: "In order that the defendant may be considered as having exercised all diligence of a good father of a family, he should not be satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experience and record of service."

It should perhaps be stated that in the instant case no question is raised as to due diligence in the supervision by PEPSI-COLA of its driver. Article 2180 of the Civil Code provides inter alia:

... The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

x x x           x x x           x x x

The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

And construing a similar provision of the old Civil Code, this Court said in Bahia vs. Litonjua, 30 Phil. 624, 627:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that the presumption is juris tantum and not juris et de jure, and consequently may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due diligence in the selection of its driver. And, parenthetically, it is not surprising that appellants thus confine their arguments to this aspect of due diligence, since the record — as even appellants' brief (pp. 13-17) reflects in quoting in part the testimony of PEPSI-COLA's witness — would show sufficient evidence to establish due diligence in the supervision by PEPSI-COLA of its drivers, including Bonifacio.

Appellants' other assignment of errors are likewise outside the purview of this Court's reviewing power. Thus, the question of whether PEPSI- COLA violated the Revised Motor Vehicle Law and rules and regulations related thereto, not having been raised and argued in the Court of Appeals, cannot be ventilated herein for the first time. 6 And the matter of whether or not PEPSI-COLA did acts to ratify the negligent act of its driver is a factual issue not proper herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

May 16, 1967

BENGZON, J.P., J.:

Petitioners seek a reconsideration1 of Our decision2 in the instant case affirming in toto the challenged decision of the Court of Appeals absolving respondent PEPSI-COLA from liability. In Our decision, We refrained from passing on the merits of the question whether PEPSI-COLA, in operating the tractor-truck and trailer, violated the Rev. Motor Vehicle Law3 and the rules and regulations related thereto, for the procedural reason that it did not appear to have been raised before the Court of Appeals.

It now appears, however, that said question was raised in a motion to reconsider filed with the Court of Appeals which resolved the same against petitioners. Due consideration of the matter on its merits, convinces Us that the decision of the Court of Appeals should still be affirmed in toto.

Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in that at the time of the collision, the trailer-truck, which had a total weight of 30,000 kgms., was (a) being driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b) was not equipped with a rear-vision mirror nor provided with a helper for the driver.

The cited provisions read:

SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and tractors.

(a) No trailer or semi-trailer having a gross weight of more than 2,000 kilograms and is not equipped with effective brakes on at least two opposite wheels of the rear axle and are so controlled that the brakes will act in unison with or preceding the effective action of the brakes of the tractor-truck shall be registered for operation on public highways of the Philippines; provided, that the trialers without brakes may be registered from year to year for operation under the following conditions:

1. No such trailer shall be operated at any time at a speed in excess of 15 kilometers per hour in conjunction with a tractor-truck, the actual gross weight of which is less than twice the weight of the trailer.

x x x           x x x           x x x

4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable the driver to see vehicles approaching mirror the rear or shall carry a helper who shall be so stationed on the truck or trailer that he will constantly have a view of the rear. He shall be provided with means of effectively signalling to the driver to give way to overtaking vehicles.

4(e) No truck and trailer combination shall be operated at a speed greater than 30 kilometers per hour.

It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailers or semi-trailers having a gross weight of more than 2,000 kgms., AND which are "not equipped with effective brakes on at least two opposite wheels, of the rear axle and are so controlled that the brakes will act in unison with or preceding the effective action of the brakes of the tractor-truck..." This is the condition set in the proviso in par. (a),supra, wherein "trailers without [such] brakes may be registered from year to year for operation ..." i.e., they should not "be operated at any time at a speed in excess of 15 kilometers per hour in conjunction with a tractor-truck ...". But there was no finding by the Court of Appeals that the truck-trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e), supra, that will apply. And petitioners admit that the truck-trailer was being driven at about 30 k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helper on the night of the collision since he was found to be driving alone. However, there is no finding that the tractor-truck did not have a rear-vision mirror. To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene, testified that he saw the tractor-truck there but he does not remember if it had any rear vision mirror.4 This cannot prove lack of rear-vision mirror. And the cited provision — subpar. 4(d) — is complied if either of the two alternatives, i.e., having a rear-vision mirror or a helper, is present. Stated otherwise, said provision is violated only where there is a positive finding that the tractor-truck did not have both rear-vision mirror and a helper for the driver.

Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor Vehicle Law, providing that:

No motor vehicle operating as a single unit shall exceed the following dimensions:

Overall width ................ 2.5 meters.

x x x           x x x           x x x

since there was an express finding that the truck-trailer was 3 meters wide. However, Sec. 9 (d) of the same law, as amended, providing that —

SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office with the approval of the Secretary of Public Works and Communications shall establish regulations and a tariff of additional fees under which special permits may be issued in the discretion of the Chief of the Motor Vehicles Office or his deputies, for each of the following special cases, and without such special permit, no such motor vehicles shall be operated on the public highways.

x x x           x x x           x x x

(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions specified in subsections (b) and (c) of section eight-A hereof. (Emphasis supplied)

x x x           x x x           x x x

expressly allows the registration, or use of motor vehicles exceeding the limits of permissible dimensions specified in subsec. (b) of Sec. 8-A. So, to conclude that there was a violation of law — which undisputably constitutes negligence, at the very least — it is not enough that the width of the tractor-truck exceed the limit in Sec. 8-A; in addition, it must also appear that there was no special permit granted under Sec. 9. Unfortunately for petitioners, that vital factual link is missing. There was no proof much less any finding to that effect. And it was incumbent upon petitioners-appellants to have proved lack of such permit since the tractor-truck and the trailer were registered.5 Compliance with law and regularity in the performance of official duty — in this case, the issuance of proper registration papers — are presumed6 and prevail over mere surmises. Having charged a violation of law, the onus of substantiating the same fell upon petitioners-appellants. Hence, the conclusion that there was a violation of the law lacks factual basis.

Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are urged to apply the Anglo-American doctrine of respondent superior. We cannot however, abandon the Bahia ruling without going against the explicit mandate of the law. A motor vehicle owner is not an absolute insurer against all damages caused by its driver. Article 2180 of our Civil Code is very explicit that the owner's responsibility shall cease once it proves that it has observed the diligence of a good father of a family to prevent damage. The Bahia case merely clarified what that diligence consists of, namely, diligence in the selection and supervision of the driver-employee.

Neither could We apply the respondent superior principle. Under Article 2180 of the Civil Code, the basis of an employer's liability is his own negligence, not that of his employees. The former is made responsible for failing to properly and diligently select and supervise his erring employees. We do not — and have never — followed the respondent superior rule.8 So, the American rulings cited by petitioners, based as they are on said doctrine, are not authoritative here.

In view of the foregoing, the motion for reconsideration is hereby denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Footnotes

1For brevity hereinafter called PEPSI-COLA.2Emphasis supplied.3Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are:

1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures: Joaquin vs. Navarro, 93 Phil. 257.

2. When the inference made is manifestly mistaken, absurd or impossible: Luna vs. Linatok 74 Phil. 15.3. Where there is a grave abuse of discretion: Buyco vs. People, 51 O.G. 2927.4. When the judgment is based on a misapprehension of facts: Cruz vs. Sosing, L-4875, November 27, 1953.5. When the findings of fact are conflicting: Casica vs. Villaseca, L-9590, April 30, 1957.6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee: Evangelista vs. Alto Surety & Insurance Co., L-11139, April 23, 1958.

4Cf. II Moran, Comments on the Rules of Court, 1963 Ed., 412.5See II Martin, Rules of Court in the Philippines, 255; II Bouvier's Law Dictionary, 2784.6Tan Si Kiok vs. Tiacho, 79 Phil. 696.

BENGZON, J.P., J.:1Typographical errors appearing in the printed motion for reconsideration have been corrected upon petitioner's request granted by Us.2Promulgated Feb. 9, 1967.3Act No. 3992.4Session of Jan. 13, 1960, T.s.n., p. 68.5See Pars. 2 and 3 of Complaint, Rollo, p. 44.6Rule 131, Sec. 5(m) and (ff), Rev. Rules of Court.7Bahia vs. Litonjua, 30 Phil. 624, which held that once the employer satisfactorily shows that in the section and supervision of the driver, he has exercised the care and diligence of a good father of a family, he is relieved from liability.8Cangco vs. M.R.R., 38 Phil. 768; Cuison vs. Norton, 55 Phil. 18.

SECOND DIVISIONG.R. No. 104408 June 21, 1993

METRO MANILA TRANSIT CORPORATION, petitioner, vs.

THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.

Office of the Government Corporate Counsel for petitioner.Renato P. Decena and Restituto Abjero for private respondent. REGALADO, J.:

This appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due diligence in the selection and supervision of employees as its defense against liability resulting from a vehicular collision. With the facility by which such a defense can be contrived and our country having reputedly the highest traffic accident rate in its geographical region, it is indeed high time for us to once again address this matter which poses not only a litigation issue for the courts but affects the very safety of our streets.

The facts of the case at bar are recounted for us by respondent court, thus —

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita Custodio boarded as a paying passenger a public utility jeepney with plate No. D7 305 PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by his co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated located in Bicutan, Taguig, Metro Manila, where she then worked as a machine operator earning P16.25 a day. While the passenger jeepney was travelling at (a) fast clip along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB (Philippines) "79 driven by defendant Godofredo C. Leonardo was negotiating Honeydew Road, Bicutan, Taguig, Metro Manila bound for its terminal at Bicutan. As both vehicles approached the intersection of DBP Avenue and Honeydew Road they failed to slow down and slacken their speed; neither did they blow their horns to warn approaching vehicles. As a consequence, a collision between them occurred, the passenger jeepney ramming the left side portion of the MMTC bus. The collision impact caused plaintiff-appellant Nenita Custodio to hit the front windshield of the passenger jeepney and (she) was thrown out therefrom, falling onto the pavement unconscious with serious physical injuries. She was brought to the Medical City Hospital where she regained consciousness only after one (1) week. Thereat, she was confined for twenty-four (24) days, and as a

consequence, she was unable to work for three and one half months (31/2). 1

A complaint for damages 2 was filed by herein private respondent, who being then a minor was assisted by her parents, against all of therein named defendants following their refusal to pay the expenses incurred by the former as a result of the collision.

Said defendants denied all the material allegations in the complaint and pointed an accusing finger at each other as being the party at fault. Further, herein petitioner Metro Manila Transit Corporation (MMTC), a government-owned corporation and one of the defendants in the court a quo, along with its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim and counterclaim 3 that the MMTC bus was driven in a prudent and careful manner by driver Leonardo and that it was the passenger jeepney which was driven recklessly considering that it hit the left middle portion of the MMTC bus, and that it was defendant Lamayo, the owner of the jeepney and employer of driver Calebag, who failed to exercise due diligence in the selection and supervision of employees and should thus be held solidarily liable for damages caused to the MMTC bus through the fault and negligence of its employees.

Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and counterclaim 4 that the damages suffered by therein plaintiff should be borne by defendants MMTC and its driver, Godofredo Leonardo, because the latter's negligence was the sole and proximate cause of the accident and that MMTC failed to exercise due diligence in the selection and supervision of its employees.

By order of the trial court, defendant Calebag was declared in default for failure to file an answer. 5 Thereafter, as no amicable settlement was reached during the pre-trial conference, 6 trial on the merits ensued with the opposing parties presenting their respective witnesses and documentary evidence.

Herein private respondent Nenita Custodia, along with her parents, were presented as witnesses for the prosecution. In addition, Dr. Edgardo del Mundo, the attending physician, testified on the cause, nature and extent of the injuries she sustained as a result of the vehicular mishap. 7 On the other hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and Milagros Garbo. Defendant Lamayo, however, failed to present any witness.

Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of the company's bus drivers, conducting for this purpose a series of training programs and examinations. According to her, new applicants for job openings at MMTC are preliminarily required to submit certain documents such as National Bureau of Investigation (NBI) clearance, birth or residence certificate, ID pictures, certificate or diploma of highest educational attainment, professional driver's license, and work experience certification. Re-entry applicants, aside from the foregoing requirements, are additionally supposed to submit company clearance for shortages and damages and revenue performance for the preceding year. Upon satisfactory compliance with said requisites, applicants are recommended for and subjected to a Preliminary

interview, followed by a record check to find out whether they are included in the list of undesirable employees given by other companies.

Thereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief Supervisor is scheduled and followed by a training program which consists of seminars and actual driving and Psycho-physical tests and X-ray examinations. The seminars, which last for a total of eighteen (18) days, include familiarization with assigned routes, existing traffic rules and regulations, Constabulary Highway Patrol Group (CHPG) seminar on defensive driving, preventive maintenance, proper vehicle handling, interpersonal relationship ,and administrative rules on discipline and on-the-job training. Upon completion of all the seminars and tests, a final clearance is issued, an employment contract is executed and the driver is ready to report for duty. 8

MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily operation of buses in the field, to countercheck the dispatcher on duty prior to the operation of the buses in the morning and to see to it that the bus crew follow written guidelines of the company, which include seeing to it that its employees are in proper uniform, briefed in traffic rules and regulations before the start of duty, fit to drive and, in general, follow other rules and regulations of the Bureau of Land Transportation as well as of the company. 9

The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding vehicles concurrently negligent for non-observance of appropriate traffic rules and regulations and for failure to take the usual precautions when approaching an intersection. As joint tortfeasors, both drivers, as well as defendant Lamayo, were held solidarily liable for damages sustained by plaintiff Custodio. Defendant MMTC, on the bases of the evidence presented was, however, absolved from liability for the accident on the ground that it was not only careful and diligent in choosing and screening applicants for job openings but was also strict and diligent in supervising its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations before the start of duty, and that it checked its employees to determine whether or not they were positive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land Transportation and of the company.

The trial court accordingly ruled:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing the complaint against the Metro Manila Transit Corporation and ordering defendants Agudo P. Calebag, Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs, jointly and severally, the following:

a) the sum of P10,000.00 by way of medical expenses;

b) the sum of P5,000.00 by way of expenses of litigation;

c) the sum of P15,000.00 by way of moral damages;

d) the sum of P2,672.00 by way of loss of earnings;

e) the sum of P5,000.00 by way of exemplary damages;

f) the sum of P6,000.00 by way of attorney's fees; and

g) costs of suit.

SO ORDERED. 11

Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from liability reconsidered 12having been denied for lack of merit, 13 an appeal was filed by her with respondent appellate court. After consideration of the appropriate pleadings on appeal and finding the appeal meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarily liable with the other defendants for the damages awarded by the trial court because of their concurrent negligence, concluding that while there is no hard and fast rule as to what constitutes sufficient evidence to prove that an employer has exercised the due diligence required of it in the selection and supervision of its employees, based on the quantum of evidence adduced the said appellate court was not disposed to say that MMTC had exercised the diligence required of a good father of a family in the selection and supervision of its driver, Godofredo Leonardo. 14

The Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of appellee Custodio and appellant MMTC in a resolution dated February 17, 1982, 15 thus prompting MMTC to file the instant petition invoking the review powers of this Court over the decision of the Court of Appeals, raising as issues for resolution whether or not (1) the documentary evidence to support the positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the testimonies of witnesses Garbo and Bautista may still be disturbed on appeal; and (3) the evidence presented during the trial with respect to the proof of due diligence of petitioner MMTC in the selection and supervision of its employees, particularly driver Leonardo, is sufficient.

Prefatorily, private respondent questions the timeliness of the filing of the petition at bar in view of the procedural stricture that the timely perfection of an appeal is both a mandatory and jurisdictional requirement. This is a legitimate concern on the part of private respondent and presents an opportune occasion to once again clarify this point as there appears to be some confusion in the application of the rules and interpretative rulings regarding the computation of reglementary periods at this stage of the proceedings.

The records of this case reveal that the decision of respondent Court of Appeals, dated October 31, 1991, was received by MMTC on November 18, 1991 16 and it seasonably filed a motion for the reconsideration thereof on November 28, 1991. 17 Said motion for reconsideration was denied by respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC on March 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15) days therefrom or up to March 24, 1992 within which to file its petition, for review on certiorari. Anticipating, however, that it may not be able to file said petition before the lapse of the reglementary period therefor, MMTC filed a motion on March 19, 1992 for an extension of thirty (30)

days to file the present petition, with proof of service of copies thereof to respondent court and the adverse parties. The Court granted said motion, with the extended period to be counted from the expiration of the reglementary period.19 Consequently, private respondent had thirty (30) days from March 24, 1992 within which to file its petition, or up to April 23, 1992, and the eventual filing of said petition on April 14, 1992 was well within the period granted by the Court.

We digress to reiterate, in view of erroneous submissions that we continue to receive, that in the case of a petition for review on certiorari from a decision rendered by the Court of Appeals, Section 1, Rule 45 of the Rules of Court, which has long since been clarified in Lacsamana vs. The Hon. Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the same to be filed "within fifteen (15) days from notice of judgment or of the denial of the motion for reconsideration filed in due time, and paying at the same time to the corresponding docket fee." In other words, in the event a motion for reconsideration is filed and denied, the period of fifteen (15) days begins to run all over again from notice of the denial resolution. Otherwise put, if a motion for reconsideration is filed, the reglementary period within which to appeal the decision of the Court of Appeals to the Supreme Court is reckoned from the date the party who intends to appeal received the order denying the motion for reconsideration.21 Furthermore, a motion for extension of time to file a petition for review may be filed with this Court within said reglementary period, paying at the same time the corresponding docket fee.

1. The first two issues raised by petitioner shall be correlatively discussed in view of their interrelation.

In its present petition, MMTC insists that the oral testimonies of its employees were presented as witnesses in its behalf sufficiently prove, even without the presentation documentary evidence, that driver Leonardo had complied with all the hiring and clearance requirements and had undergone all trainings, tests and examinations preparatory to actual employment, and that said positive testimonies spell out the rigid procedure for screening of job applicants and the supervision of its employees in the field. It underscored the fact that it had indeed complied with the measure of diligence in the selection and supervision of its employees as enunciated in Campo, et al. vs. Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good father of a family, to carefully examine the applicant for employment as to his qualifications, experience and record service, and not merely be satisfied with the possession of a professional driver's license.

It goes on to say since the testimonies of these witnesses were allegedly neither discredited nor impeached by the adverse party, they should be believed and not arbitrarily disregarded or rejected nor disturbed on appeal. It assiduously argues that inasmuch as there is no law requiring that facts alleged by petitioner be established by documentary evidence, the probative force and weight of their testimonies should not be discredited, with the further note that the lower court having passed

upon the relevancy of the oral testimonies and considered the same as unrebutted, its consideration should no longer be disturbed on appeal. 23

Private respondent, on the other hand, retorts that the factual findings of respondent court are conclusive upon the High Court which cannot be burdened with the task of analyzing and weighing the evidence all over again. 24

At this juncture, it suffices to note that factual findings of the trial court may be reversed by the Court of Appeals, which is vested by law with the power to review both legal and factual issues, if on the evidence of record, it appears that the trial court may have been mistaken 25 particularly in the appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general rule laid down in a plethora of cases is that such findings of fact by the Court of Appeals are conclusive upon and beyond the power of review of the Supreme Court. 27However, it is now well-settled that while the findings of fact of the Court of Appeals are entitled to great respect, and even finality at times, that rule is not inflexible and is subject to well established exceptions, to wit: (1) when the conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition, as well as in the petitioner's main and reply briefs are not disputed by the respondents and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and are contradicted by the evidence on record. 28

When as in this case, the findings of the Court of Appeals and the trial court are contrary to each other, this court may scrutinize the evidence on record, 29 in order to arrive at a correct finding based thereon. 30

A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with defendant Lamayo, the owner of the jeepney, we are spared the necessity of determining the sufficiency of evidence establishing the fact of negligence. 31 The contrariety is in the findings of the two lower courts, and which is the subject of this present controversy, with regard to the liability of MMTC as employer of one the erring drivers.

The trial court, in absolving MMTC from liability ruled that —

On the question as to whether defendant MMTC was successful in proving its defense that indeed it had exercised the due diligence of a good father of a family in the selection and supervision of defendant Leonardo, this Court finds that based on the evidence presented during

the trial, defendant MMTC was able to prove that it was not only careful and diligent in choosing and screening applicants for job openings but also strict (and) diligent in supervising its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations before the start of duty, checked employees to determine whether they were positive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land Transportation as well as its company. Having successfully proven such defense, defendant MMTC therefore, cannot be held liable for the accident.

Having reached this conclusion, the Court now, holds that defendant MMTC be totally absolved from liability and that the complaint against it be dismissed. . . . 32

whereas respondent court was of the opinion that —

It is surprising though that witness Milagros Garbo did not testify nor present any evidence that defendant-appellee's driver, defendant Godofredo Leonardo has complied with or has undergone all clearances and trainings she referred to. The clearances, result of seminars and tests which Godofredo Leonardo submitted and complied with, if any, were not presented in court despite the fact that they are obviously in the possession and control of defendant-appellee. Instead, it resorted to generalities. The Court has ruled that due diligence in (the) selection and supervision of employee(s) are not proved by mere testimonies to the effect that its applicant has complied with all the company requirements before one is admitted as an employee but without proof thereof. . . .

On the part of Christian Bautista, the transport supervisor of defendant-appellee, he testified that it is his duty to monitor the operation of buses in the field; to countercheck the dispatchers' duty prior to the operation of the buses in the morning; to see to it that bus crew follows written guidelines of the company (t.s.n., April 29, 1988, pp. 4-5), but when asked to present in court the alleged written guidelines of the company he merely stated that he brought with him a "wrong document" and defendant-appellee's counsel asked for reservation to present such written guidelines in the next hearing but the same was (sic) never presented in court. 33

A thorough and scrupulous review of the records of this case reveals that the conclusion of respondent Court of Appeals is more firmly grounded on jurisprudence and amply supported by the evidence of record than that of the court below.

It is procedurally required for each party in a case to prove his own affirmative assertion by the degree of evidence required by law. 34 In civil

cases, the degree of evidence required of a party in order to support his claim is preponderance of evidence, or that evidence adduced by one party which is more conclusive and credible than that of the other party. It is, therefore, incumbent on the plaintiff who is claiming a right to prove his case. Corollarily, defendant must likewise prove own allegation to buttress its claim that it is not liable. 35

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of presenting at the trial such amount of evidence required by law to obtain a favorable judgment. 36 It is entirely within each of the parties discretion, consonant with the theory of the case it or he seeks to advance and subject to such procedural strategy followed thereby, to present all available evidence at its or his disposal in the manner which may be deemed necessary and beneficial to prove its or his position, provided only that the same shall measure up to the quantum of evidence required by law. In making proof in its or his case, it is paramount that the best and most complete evidence be formally entered. 37

Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, or even subject evidence for that matter, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. 38 Petitioner's attempt to prove itsdiligentissimi patris familias in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony. 39

Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as would convincingly and undoubtedly prove its observance of the diligence of a good father of a family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almost identical factual setting, where we held that:

. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must accomplish before he is employed by the company, a written "time schedule" for each bus, and a record of the inspections and thorough checks pertaining to each bus before it leaves the car barn; yet no attempt was ever made to present in evidence any of these documents, despite the fact that they were obviously in the possession and control of the defendant company.

xxx xxx xxx

Albert also testified that he kept records of the preliminary and final tests given him as well as a record of the qualifications and experience of each of the drivers of the company. It is rather strange, therefore, that he

failed to produce in court the all important record of Roberto, the driver involved in this case.

The failure of the defendant company to produce in court any "record" or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues strongly against its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove due observance of all the diligence of a good father of a family as would constitute a valid defense to the legal presumption of negligence on the part of an employer or master whose employee has by his negligence, caused damage to another. . . . (R)educing the testimony of Albert to its proper proportions, we do not have enough trustworthy evidence left to go by. We are of the considered opinion, therefore, that the believable evidence on the degree of care and diligence that has been exercised in the selection and supervision of Roberto Leon y Salazar, is not legally sufficient to overcome the presumption of negligence against the defendant company.

Whether or not the diligence of a good father of a family has been observed by petitioner is a matter of proof which under the circumstances in the case at bar has not been clearly established. It is not felt by the Court that there is enough evidence on record as would overturn the presumption of negligence, and for failure to submit all evidence within its control, assuming the putative existence thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference.

2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove the diligence of a good father of a family, which for an employer doctrinally translates into its observance of due diligence in the selection and supervision of its employees but which mandate, to use an oft-quoted phrase, is more often honored in the breach than in the observance.

Petitioner attempted to essay in detail the company's procedure for screening job applicants and supervising its employees in the field, through the testimonies of Milagros Garbo, as its training officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt that considering the nature of the business of petitioner, it would not let any applicant-drivers to be (sic) admitted without undergoing the rigid selection and training process with the end (in) view of protecting the public in general and its passengers in particular; . . . thus, there is no doubt that applicant had fully complied with the said requirements otherwise Garbo should not have allowed him

to undertake the next set of requirements . . . and the training conducted consisting of seminars and actual driving tests were satisfactory otherwise he should have not been allowed to drive the subject vehicle. 41

These statements strike us as both presumptuous and in the nature of petitio principii, couched in generalities and shorn of any supporting evidence to boost their verity. As earlier observed, respondent court could not but express surprise, and thereby its incredulity, that witness Garbo neither testified nor presented any evidence that driver Leonardo had complied with or had undergone all the clearances and trainings she took pains to recite and enumerate. The supposed clearances, results of seminars and tests which Leonardo allegedly submitted and complied with were never presented in court despite the fact that, if true, then they were obviously in the possession and control of petitioner. 42

The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of the Civil Code provisions on quasi-delicts as all the elements thereof are present, to wit: (1) damages suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for whose act he must respond, and (3) the connection of cause and effect between fault or negligence of the defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was originally sued as employer of driver Leonardo under Article 2180, the pertinent parts of which provides that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

The basis of the employer's vicarious liability has been explained under this ratiocination:

The responsibility imposed by this article arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible under the article, derived from their failure to exercise due care and vigilance over the acts of subordinates to prevent them from causing damage. Negligence is imputed to them by law, unless they prove the contrary. Thus, the last paragraph of the article says that such responsibility ceases if is proved that the persons who might be held responsible under it exercised the diligence of a good father of a family (diligentissimi patris familias) to prevent damage. It is

clear, therefore, that it is not representation, nor interest, nor even the necessity of having somebody else answer for the damages caused by the persons devoid of personality, but it is the non-performance of certain duties of precaution and prudence imposed upon the persons who become responsible by civil bond uniting the actor to them, which forms the foundation of such responsibility. 44

The above rule is, of course, applicable only where there is an employer-employee relationship, although it is not necessary that the employer be engaged in business or industry. Whether or not engaged in any business or industry, the employer under Article 2180 is liable for torts committed by his employees within the scope of their assigned tasks. But, it is necessary first to establish the employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in the selection and supervision of employees. 45 The diligence of a good father of a family required to be observed by employers to prevent damages under Article 2180 refers to due diligence in the selection and supervision of employees in order to protect the public. 46

With the allegation and subsequent proof of negligence against the defendant driver and of an employer-employee relation between him and his co-defendant MMTC in this instance, the case in undoubtedly based on aquasi-delict under Article 2180 47 When the employee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption that the employer is negligent, 48 rebuttable only by proof of observance of the diligence of a good father of a family. For failure to rebut such legal presumption of negligence in the selection and supervision of employees, the employer is likewise responsible for damages, 49the basis of the liability being the relationship of pater familias or on the employer's own negligence. 50

As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently held that where the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the drivers and owners of the said vehicles shall be primarily, directly and solidarily liable for damages and it is immaterial that one action is based onquasi-delict and the other on culpa contractual, as the solidarily of the obligation is justified by the very nature thereof. 52

It should be borne in mind that the legal obligation of employers to observe due diligence in the selection and supervision of employees is not to be considered as an empty play of words or a mere formalism, as appears to be the fashion of the times, since the non-observance thereof actually becomes the basis of their vicarious liability under Article 2180.

On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:

. . . . In order tat the owner of a vehicle may be considered as having exercised all diligence of a good

father of a family, he should not have been satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experience and record of service. These steps appellant failed to observe; he has therefore, failed to exercise all due diligence required of a good father of a family in the choice or selection of driver.

Due diligence in the supervision of employees, on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. 53 To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome presumption.

We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed." 54 Paying lip-service to these injunctions or merely going through the motions of compliance therewith will warrant stern sanctions from the Court.

These obligations, imposed by the law and public policy in the interests and for the safety of the commuting public, herein petitioner failed to perform. Respondent court was definitely correct in ruling that ". . . due diligence in the selection and supervision of employee (is) not proved by mere testimonies to the effect that its applicant has complied with all the company requirements before one is admitted as an employee but without proof thereof." 55 It is further a distressing commentary on petitioner that it is a government-owned public utility, maintained by public funds, and organized for the public welfare.

The Court it is necessary to once again stress the following rationale behind these all-important statutory and jurisprudential mandates, for it has been observed that despite its pronouncement in Kapalaran Bus Line vs. Coronado, et al., supra, there has been little improvement in the transport situation in the country:

In requiring the highest possible degree of diligence from common carriers and creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of the cargo carried by a common carrier, they are not the only persons that the law seeks to benefit. For if common carriers carefully observe the statutory standard of extraordinary diligence in respect of their own passengers, they cannot help but simultaneously benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe and convenient use of our roads and highways. The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of their drivers. . . .

Finally, we believe that respondent court acted in the exercise of sound discretion when it affirmed the trial court's award, without requiring the payment of interest thereon as an item of damages just because of delay in the determination thereof, especially since private respondent did not specifically pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-delicts, interest as a part of the damages may be awarded in the discretion of the court, and not as a matter of right. We do not perceive that there have been international dilatory maneuvers or any special circumstances which would justify that additional award and, consequently, we find no reason to disturb said ruling.

WHEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J. and Nocon, JJ., concur.Padilla, J., is on leave. # Footnotes

1 Rollo, 24-25.2 Civil Case No. C-8176, entitled "Nenita R. Custodio, assisted by her parents, Rodolfo A. Custodio and Gloria R. Custodio vs. Agudo R. Calebag, Victorino Lamayo, Godofredo C. Leonardo, and Metro Manila Transit Corporation," Court of First Instance of Rizal, Branch 35, Caloocan City; Original Record, 1-4.3 Ibid., 17-22.

4 Ibid., 36-41.5 Ibid., 54.6 Ibid., 57.7 TSN, September 2, 1982, 4-16.8 Ibid., June 10, 1988, 3-12.9 Ibid., April 29, 1988, 2-8.10 Civil Case No. 8176, Regional Trial Court, Branch 125, Caloocan City; Judge Geronimo S. Mangay, presiding.11 Original Record, 177.12 Ibid., 178-181.13 Ibid., 195.14 Ca-G.R. CV No. 24680; per Justice Regina G. Ordoñez-Benitez, with Justices Jose A.R. Melo and Emilio C. Cui, concurring; Rollo, 24-30.15 Rollo, 33-34.16 Ibid., 2.17 Ibid., CA-G.R CV No. 24680, 63-72.18 Rollo, 2.19 Ibid., 7.20 143 SCRA 643 (1986).21 American General Insurance Co. vs. Intermediate Appellee Court, et al., 150 SCRA 133 (1987).22 100 Phil. 459 (1956).23 Memorandum for Petitioner, 11-15; Rollo, 16-21.24 Comment of Private Respondent, 3-4; Rollo, 47-48.25 San Miguel Corporation vs. Court of Appeals, et al., 185 SCRA 722 (1990).26 Medina vs. Asistio, Jr., et al., 191 SCRA 218 (1990).27 Cathay Insurance Co. vs. Court of Appeals, e al., 151 SCRA 710 (1987); Hernandez vs. Court of Appeals, et al., 160 SCRA 821 (1988); Philippine National Bank vs. Court of Appeals, et al., 183 SCRA 133 (1990); BA Finance Corporation vs. Court of Appeals, et al., 201 SCRA 157 (1991).28 Manlapaz vs. Court of Appeals, et al., 147 SCRA 236 (1987); Medina vs. Asistio, Jr., supra; Calalang vs. Intermediate Appellate Court, et al., 194 SCRA 514 (1991).29 Valenzuela, et al. vs. Court of Appeals, et al., 191 SCRA 1 (1991).30 Roman Catholic Bishop of Malolos, et al. vs. Intermediate Appellate Court, et al., 191 SCRA 411 (1990).31 Cea vs. Villanueva, 18 Phil. 538 (1911); Barcelo, etc. vs. The Manila Electric Railroad and Light Company, 29 Phil. 351 (1915); De la Riva vs. Molina, 32 Phil. 277 (1915); Agdoro vs. Philippine Mining Industrial Co., 45 Phil. 816 (1924).32 Annex C, Petition; Rollo, 41-42.33 Annex B, ibid.; id., 28-29.34 Section 1, Rule 131, Rules of Court.

35 Stronghold Insurance Company, Inc. vs. Court of Appeals, et al., 173 SCRA 619 (1989).36 Republic vs. Court of Appeals, et al., 182 SCRA 290 (1990), citing Tai Tong Chuache & Co. vs. The Insurance Commission, et al., 158 SCRA 366 (1988); Republic vs. Court of Appeals, et al., 204 SCRA 160 (1991).37 U.S. vs. Tria, 17 Phil. 303 (1910).38 See Pleno vs. Court of Appeals, et al., 161 SCRA 160 (1991).39 See Garcia, et al. vs. Gonzales, et al., 183 SCRA 72 (1990).40 54 O.G., No. 31, 7415 (1958).41 Petition, 6-7; Rollo, 14-15.42 Supra, Fn. 34.43 Andamo, et al. vs. Intermediate Appellate Court, et al., 191 SCRA 195 (1990).44 Tolentino, A., Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. V, 1959 ed., 519.45 Martin vs. Court of Appeals, et al., 205 SCRA 591 (1992).46 Barredo vs. Garcia, 73 Phil. 607 (1942).47 Lanuzo vs. Ping, et al., 100 SCRA 205 (1980).48 Bahia vs. Litonjua, et al., 30 Phil. 624 (1915); Campo vs. Camarote, supra; Phoenix Construction, Inc. vs. Intermediate Appellate Court, et al., 148 SCRA 353 (1987); McKee, et al. vs. Intermediate Appellate Court, et al., 211 SCRA 517 (1992).49 Lanuzo vs. Ping, et al., supra, and cases cited therein.50 Bahia vs. Litonjua, et al., supra; Yamada vs. Manila Railroad Co., 33 Phil. 8 (1915); McKee, et al. vs. Intermediate Appellate Court, et al., supra.51 56 Phil. 177 (1913); Cf. Barredo vs. Garcia, supra; Viluan vs. Court of Appeals, et al., 16 SCRA 742, (1966); Anuran vs. Buño, 17 SCRA 224 (1966); Malipol vs. Tan, 55 SCRA 202 (1974); Poblete vs. Fabron, 93 SCRA 200 (1979); Pleno vs. Court of Appeals, et al., supra; Kapalaran Bus Line vs. Coronado, 176 SCRA 792 (1989).52 Art. 1207, Civil Code.53 Filamer Christian Institute vs. Intermediate Appellate Court, et al., 212 SCRA 637 (1992).54 Pantranco North Express Inc. vs. Baesa, 179 SCRA 384 (1989). See also Franco, et al. vs. Intermediate Appellate Court, et al., 178 SCRA 331 (1989).55 Rollo, 28.

FIRST DIVISIONG.R. No. L-83524 October 13, 1989

ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners, vs.

HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.

Rodolfo D. Mapile for petitioners.Jose Al. Perez for private respondent. GANCAYCO, J.:

The principal issue in this Petition for Review is whether or not a Complaint for damages instituted by the petitioners against the private respondent arising from a marine collision is barred by the statute of limitations.

The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its way from Marinduque to Manila. Somewhere near Maricabon Island and Cape Santiago, the boat figured in a collision with an inter-island vessel, the M/V Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea sank, taking with it its fish catch.

After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the proximate cause of the maritime collision.

On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was attributable to the negligence of the employees of the private respondent who were on board the M/V Asia Philippines during the collision. The findings made by the Board served as the basis of a subsequent Decision of the Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspended from pursuing his profession as a marine officer. 1

On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The suit was docketed as Civil Case No. 2907-P.

The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of prescription. He argued that under Article 1146 of the Civil Code, 3 the prescriptive period for instituting a Complaint for damages arising from a quasi-delict like a maritime collision is four years. He maintained that the petitioners should have filed their Complaint within four years from the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year prescriptive period.

For their part, the petitioners contended that maritime collisions have peculiarities and characteristics which only persons with special skill, training and experience like the members of the Board of Marine Inquiry can properly analyze and resolve. The petitioners argued that the running of the prescriptive period was tolled by the filing of the marine protest and that their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that the four-year prescriptive period under Article 1146 of the Civil Code should be computed from the said date. The petitioners concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably filed.

In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by the private respondent. The trial court observed that in ascertaining negligence relating to a maritime collision, there is a need to rely on highly technical aspects attendant to such collision, and that the Board of Marine Inquiry was constituted pursuant to the Philippine Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter of Instruction No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the need. The trial court went on to say that the four-year prescriptive period provided in Article 1146 of the Civil Code should begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippines had been finally ascertained. The pertinent portions of the Order of the trial court are as follows —

Considering that the action concerns an incident involving a collision at sea of two vehicles and to determine negligence for that incident there is an absolute need to rely on highly technical aspects attendant to such collisions. It is obviously to answer such a need that the Marine Board of Inquiry (Sic) was constituted pursuant to the Philippine Merchant Marine Rules and Regulations which became effective January 1, 1975 under Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant section of that law (Art. XVI/b/ provided as follow(s):

1. Board of Marine Inquiry (BMI) — Shall have the jurisdiction to investigate marine accidents or casualties relative to the liability of shipowners and officers, exclusive jurisdiction to investigate cases/complaints against the marine officers; and to review all proceedings or investigation conducted by the Special Boards of Marine Inquiry.

2. Special Board of Marine Inquiry. — Shall have original jurisdiction to investigate marine casualties and disasters which occur or are committed within the limits of the Coast Guard District concerned or those referred by the Commandant.

The Court finds reason in the argument of the plaintiff that marine incidents have those 'peculiarities which only persons of special skill, training and exposure can rightfully decipher and resolve on the matter of the negligence and liabilities of parties involved and inasmuch as the report of the Board of Inquiry (sic) admittedly came out only on April 29, 1982, the prescriptive period provided x x x under Art. 1146 of the Civil Code should begin to run only from that date. The complaint was filed with this Court on May 10, 1985, hence the statute of limitations can not constitute a bar to the filing of this case. 5

The private respondent elevated the case to the Court of Appeals by way of a special civil action for certiorari and prohibition, alleging therein that the trial court committed a grave abuse of discretion in refusing to dismiss the Complaint filed by the petitioners. The case was assigned to the Second Division of the appellate court and was docketed as Case No. CA-G.R. SP No. 12032. 6

In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January 12, 1988, 8 the Court of Appeals granted the Petition filed by the private respondent and ordered the trial court to dismiss the Complaint. The pertinent portions of the Decision of the appellate court are as follows —

It is clear that the cause of action of private respondent (the herein petitioners Ernesto Kramer, Jr. and Marta Kramer) accrued from the occurrence of the mishap because that is the precise time when damages were inflicted upon and sustained by the aggrieved party and from which relief from the court is presently sought. Private respondents should have immediately instituted a complaint for damages based on a quasi-delict within four years from the said marine incident because its cause of action had already definitely ripened at the onset of the collision. For this reason, he (sic) could cite the negligence on the part of the personnel of the petitioner to exercise due care and lack of (sic) diligence to prevent the collision that resulted in the total loss of their x x x boat.

We can only extend scant consideration to respondent judge's reasoning that in view of the nature of the marine collision that allegedly involves highly technical aspects, the running of the prescriptive period should only commence from the finality of the investigation conducted by the Marine Board of Inquiry (sic) and the decision of the Commandant, Philippine Coast Guard, who has original jurisdiction over the mishap. For one, while it is true that the findings and recommendation of the Board and the decision of the Commandant may be helpful to the court in ascertaining which of the parties

are at fault, still the former (court) is not bound by said findings and decision. Indeed, the same findings and decision could be entirely or partially admitted, modified, amended, or disregarded by the court according to its lights and judicial discretion. For another, if the accrual of a cause of action will be made to depend on the action to be taken by certain government agencies, then necessarily, the tolling of the prescriptive period would hinge upon the discretion of such agencies. Said alternative it is easy to foresee would be fraught with hazards. Their investigations might be delayed and lag and then witnesses in the meantime might not be available or disappear, or certain documents may no longer be available or might be mislaid. ... 9

The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10

Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are reiterated. 11 In addition thereto, the petitioner contends that the Decision of the Court of Appeals 12 The private respondent filed its Comment on the Petition seeking therein the dismissal of the same. 13 It is also contended by the private respondent that the ruling of the Court in Vasquez is not applicable to the case at bar because the said case involves a maritime collision attributable to a fortuitous event. In a subsequent pleading, the private respondent argues that the Philippine Merchant Marine Rules and Regulations cannot have the effect of repealing the provisions of the Civil Code on prescription of actions. 14

On September 19,1988, the Court resolved to give due course to the petition. 15 After the parties filed their respective memoranda, the case was deemed submitted for decision.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a quasi-delict must be instituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Court ruled that in an action for damages arising from the collision of two (2) trucks, the action being based on a quasi-delict, the four (4) year prescriptive period must be counted from the day of the collision.

In Espanol vs. Chairman, Philippine Veterans Administration, 17 this Court held as follows-

The right of action accrues when there exists a cause of action, which consists of 3 elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff ... It is only when the last element occurs or takes place that it can be said in law that a cause of action has arisen ... .

From the foregoing ruling, it is clear that the prescriptive period must be counted when the last element occurs or takes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision of two (2) vessels the four (4) year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in this case. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence or fault of the owners, agents or personnel of the other vessel.

Thus, the respondent court correctly found that the action of petitioner has prescribed. The collision occurred on April 8, 1976. The complaint for damages was filed iii court only on May 30, 1 985, was beyond the four (4) year prescriptive period.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur. Footnotes

1 Pages 26 to 32, Rollo.2 Pages 33 to 36, Rollo.3 Article 1146 of the Civil Code provides: "The following actions must be instituted within four years: x x x; (2) Upon a quasi-delict."4 Pages 42 and 43, Rollo. The Order was written by then Judge, now Court of Appeals Associate Justice Cezar D. Francisco.5 Page 43, Rollo.6 The Second Division of the Court of Appeals was then composed of Justices Oscar R. Victoriano, Manuel T. Reyes and Hector C. Fule7 Pages 16 to 21, Rollo. Justice Fule wrote the Decision of the Court of Appeals.8 Page 23, Rollo.9 Pages 19 and 20, Rollo.10 Page 25, Rollo.11 Pages 2 to 14, Rollo.12 138 SCRA 553 (1985).13 Pages 46 to 48, Rollo.14 Page 70, Rollo.15 Page 49, Rollo.16 G.R. L-1 0542, July 31, 1952.17 137 SCRA 314 (1985).

FIRST DIVISIONG.R. No. L-85868 October 13, 1989

ALLIED BANKING CORPORATION, petitioner, vs.

COURT OF APPEALS AND JOSELITO Z. YUJUICO, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.Balgos & Perez Law Offices for respondents. GANCAYCO, J.:

What started as a simple collection suit and which developed into an intricate question of procedure is the focus of this petition for review on certiorari.

The present petition seeks the reversal of the decision of the Court of Appeals in CA-G.R. SP No. 14759 dated September 5, 1988 entitled "Joselito Z. Yujuico vs. Hon. Domingo D. Panis, RTC Judge of Manila Branch LXI and Allied Banking Corp. 1 and the resolution dated November 9,1988 denying petitioner's motion for reconsideration of the said decision. 2

The antecedent facts of the case are as follows:

On April 1, 1976, private respondent Joselito Z. Yujuico obtained a loan from the General Bank and Trust Company (GENBANK) in the amount of Five Hundred Thousand pesos (P500,000.00), payable on or before April 1, 1977. As evidence thereof, private respondent issued a corresponding promissory note in favor of GENBANK. At the time private respondent incurred the obligation, he was then a ranking officer of GENBANK and a member of the family owning the controlling interest in the said bank.

On March 25,1977, the Monetary Board of the Central Bank issued Resolution No. 675 forbidding GENBANK from doing business in the Philippines. This was followed by Resolution No. 677 issued by the Monetary Board on March 29, 1977 ordering the liquidation of GENBANK.

It appears that in a Memorandum of Agreement dated May 9, 1977 executed by and between Allied Banking Corporation (ALLIED) and Arnulfo Aurellano as Liquidator of GENBANK, ALLIED acquired all the assets and assumed the liabilities of GENBANK, which includes the receivable due from private respondent under the promissory note.

Upon failing to comply with the obligation under the promissory note, petitioner ALLIED, on February 7, 1979, filed a complaint against private respondent for the collection of a sum of money. This case was docketed as Civil Case No. 121474 before the then Court of First Instance of Manila (now Regional Trial Court).

Sometime in 1987 and in the course of the proceedings in the court below, private respondent, then defendant in the court below, filed a Motion to Admit Amended/Supplemental Answer and Third-Party Complaint. Private respondent sought to implead the Central Bank and Arnulfo Aurellano as third-party defendants. It was alleged in the third-party complaint that by reason of the tortious interference by the Central

Bank with the affairs of GENBANK, private respondent was prevented from performing his obligation under the loan such that he should not now be held liable thereon.

Acting on the motion and on the opposition filed thereto, the Regional Trial Court through the Hon. Judge Felix B. Mintu issued an order dated August 13,1987 denying the admission of the third- party complaint but admitting private respondent's amended/supplemental answer.

When the case was re-raffled to Branch 61 of the Regional Trial Court of Manila, presiding Judge Domingo D. Panis, on February 29, 1 988, reiterated the order denying the admission of private respondent's third-party complaint and admitting the amended/supplemental answer. When both parties filed their respective motions for partial reconsideration, the Hon. Judge Panis issued an order dated April 18, 1988 denying both motions.

Thereupon, private respondent filed with the Court of Appeals a petition for certiorari 3 on June 1, 1988 questioning the orders of Hon. Judge Panis dated February 29, 1988 denying private respondent's motion to admit third-party complaint, and April 18, 1988 denying private respondent's motion for partial reconsideration of the February 29,1988 order.

On September 5, 1988, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, finding grave abuse of discretion on the part of the respondent Judge, the Order of February 29, 1988 as well as that of April 18, 1988 insofar as it denies petitioner's motion to admit his third party complaint, is hereby declared null and void. Respondent judge is hereby ordered to admit the proposed third-party complaint. Cost de oficio.

SO ORDERED. 4

A motion for reconsideration thereof filed by petitioner was denied in a resolution dated November 9, 1988. Petitioner assigns the following errors:

I

RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT HON. JUDGE PANIS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING ADMISSION TO PRIVATE RESPONDENTS THIRD-PARTY COMPLAINT, CONSIDERING THAT:

A. PRIVATE RESPONDENT'S PROPOSED THIRD-PARTY COMPLAINT DOES NOT STATE A CAUSE OF ACTION IN RESPECT OF PETITIONERS CLAIM.

B. THE ALLEGED CAUSE OF ACTION SET FORTH IN PRIVATE RESPONDENTS PROPOSED THIRD-PARTY COMPLAINT HAS ALREADY PRESCRIBED.

C. THE ADMISSION OF PRIVATE RESPONDENT'S PROPOSED THIRD-PARTY COMPLAINT WILL ONLY CAUSE FURTHER UNNECESSARY DELAY IN THE DISPOSITION OF THE CASE OF PETITIONER AGAINST PRIVATE RESPONDENT.

II

CONTRARY TO THE RULING OF RESPONDENT COURT OF APPEALS, THE RULE PRESCRIBING THAT DEFENSES NOT RAISED IN THE COURT BELOW CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL IS NOT APPLICABLE TO SPECIAL CIVIL ACTIONS OF CERTIORARI.5

From the foregoing assignment of errors, petitioner would like Us to resolve the following issues: (a) Is there a proper ground to admit the third-party complaint?; and (b) assuming that there is, has the cause of action under the third-party complaint prescribed?

A third-party complaint is a procedural device whereby a "third-party who is neither a party nor privy to the act or deed complained of by the plaintiff, may be brought into the case with leave of court, by the defendant, who acts as third-party plaintiff to enforce against such third-party defendant a right for contribution, indemnity, subrogation or any other relief, in respect of the plaintiff s claim .  6 The third party complaint is actually independent of, separate and distinct from the plaintiffs complaint. Such that, were it not for this provision of the Rules of Court, it would have to be filed separately from the original complaint by the defendant against the third-party. 7

After going through the records of this case, this Court finds that the third-party plaintiffs claim is premised not only on what was alleged as the tortious interference by the third-party defendants with the affairs of GENBANK. More importantly, attention should have been focused on the fact that this allegation is wedded to a decision rendered by the Court of Appeals in CA-G.R. CV No. 03642 which affirmed the decision of the Regional Trial Court in Special Proceedings No. 107812. 8 We quote the pertinent portion of the affirmed decision, to wit:

Based on the foregoing facts, the Court finds the liquidation of GBTC as embodied in Annex "A" and Annex "B" of the petition, which merely adopted the bid of the Lucio Tan group as the liquidation plan of GBTC as plainly arbitrary and made in bad faith and therefore the same must be annulled and set aside. ... 9 (Italics supplied).

This decision, which declared as null and void the liquidation of GENBANK, prompted private respondent herein to file a third-party complaint against the Central Bank and Arnulfo Aurellano on the theory that he has a right to proceed against them in respect of ALLIED's claim. In the words of private respondent, he "[s]eeks to transfer liability for the default imputed against him by the petitioner to the proposed third-party defendants because of their tortious acts which prevented him from performing his obligations. 10 Thus, if at the outset the issue appeared to

be a simple maker's liability on a promissory note, it became complex by the rendition of the aforestated decision.

As early as Capayas vs. Court of First Instance of Albay, 11 this Court had already outlined the tests to determine whether the claim for indemnity in a third-party claim is "in respect of plaintiff's claim." They are: (a) whether it arises out of the same transaction on which the plaintiffs claim is based, or whether the third-party's claim, although arising out of another or different contract or transaction, is connected with the plaintiffs claim; (b) whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant, although the third-party defendant's liability arises out of another transaction; or (c) whether the third-party defendant may assert any defense which the third-party plaintiff has, or may have against plaintiff s claim. 12

While the claim of third-party plaintiff, private respondent herein, does not fall under test (c), there is no doubt that such claim can be accommodated under tests (a) and (b) above-mentioned. Whether or not this Court agrees with the petitioner's assertion that the claim does not "arise out of the same transaction on which the plaintiff s claim is based," it cannot be denied that the third-party's claim (although arising out of another or different contract or transaction) is connected with plaintiffs claim. The judgement of the Court of Appeals in CA-G.R. CV No. 03642 is the substantive basis of private respondent's proposed third-party complaint. Put differently, there is merit in private respondent's position that if held liable on the promissory note, they are seeking, by means of the third-party complaint, to transfer unto the third-party defendants liability on the note by reason of the illegal liquidation of GENBANK which, in the first place, was the basis for the assignment of the promissory note. If there was any confusion at all on the ground/s alleged in the third-party complaint, it was the claim of third-party plaintiff for other damages in addition to any amount which he may be called upon to pay under the original complaint. 13 While these allegations in the proposed third-party complaint may cause delay in the disposition of the main suit, it cannot, however, be outrightly asserted that it would not serve any purpose.

It is one thing to say that a third-party defendant may be held liable to indemnify or reimburse the third-party plaintiff "in respect of plaintiffs claim," but it is quite another to state that a third-party defendant may be held liable to a third-party plaintiff. The second instance may not carry with it the necessary connection to the main cause of action and, therefore, is not allowed by the Rules for it introduces a controversy that is entirely foreign to and distinct from the main cause. The first instance is allowable and should be allowed if it will help in clarifying in a single proceeding the multifarious issues involved arising from a single transaction.

It is this Court's pronouncement that the first instance is applicable in the present situation.

As to the issue of prescription, it is the position of petitioner that the cause of action alleged in the third-party complaint has already

prescribed. 14 Being founded on what was termed as tortious interference," petitioner asserts that under the applicable provisions of the Civil Code on quasi-delict 15 the action against third-party defendants should have been filed within four (4) years from the date the cause of action accrued. On the theory that the cause of action accrued on March 25, 1977, the date when the Monetary Board ordered GENBANK to desist from doing business in the Philippines, petitioner maintains that the claim should have been filed at the latest on March 25, 1981. 16 On the other hand, private respondent relies on the "Doctrine of Relations" or "Relations Back Doctrine" 17 to support his claim that the cause of action as against the proposed third-party defendant accrued only on December 12,1986 when the decision in CA-G.R. CV No. 03642 became final and executory. Thus, it is contended that while the third party complaint was filed only on June 17,1987, it must be deemed to have been instituted on February 7, 1979 when the complaint in the case was filed.

There can be no question in this case that the action for damages instituted by private respondent arising from the quasi-delict or alleged tortious interference" should be filed within four (4) years from the day the cause of action accrued. 18

In the case of Español vs. Chairman, Philippine Veterans Administration, 19 this Court ruled that it is from the date of the act or omission violative of the right of a party when the cause of action arises and it is from this date that the prescriptive period must be reckoned.

Thus, while technically the third party complaint in this case may be admitted as above discussed, however, since the cause of action accrued on March 25, 1980 when the Monetary Board ordered the General Bank to desist from doing business in the Philippines while the third party complaint was filed only on June 17, 1987, consequently, the action has prescribed. The third party complaint should not be admitted.

WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated September 5, 1988 and its resolution dated November 9, 1988 denying the motion for reconsideration filed by petitioner are hereby reversed and set aside and declared null and void, and another judgment is hereby rendered sustaining the orders of the trial court of February 29,1988 and April 18,1988, denying the admission of the third party complaint. No pronouncement as to costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur. Footnotes

1 Pages 42-49, Rollo; Justice Rodolfo A. Nocon was ponente, and Justices Alfredo Marigomen and Fernando A. Santiago, concurring.2 Pages 51-57, Rollo.3 Docketed as CA-G.R. SP No. 14759.4 Page 48, Rollo.5 Page 18, Rollo.6 Section 12, Rule 6, Rules of Court; see also Annotations, 25 SCRA, 651 (1968).

7 Moran, Comments on the Rules of Court, 1979 ed., page 278.8 Page 43, Rollo.9 Page 55, Rollo.10 Page 66, Rollo.11 77 Phil. 181 (1946).12 Ibid, page 183.13 Page 48, Records in CA-G.R. SP No. 14759.14 Pages 23-29, Rollo.15 Articles 1146 and 2176, Civil Code.16 Page 23, Rollo.17 That principle of law by which an act done at one time is considered by a fiction of law to have been done at some antecedent period. It is a doctrine which, although of equitable origin, has a well recognized application to proceedings at law; a legal fiction invented to promote the ends of justice or to prevent injustice and the occurrence of injuries where otherwise there would be no remedy.18 The doctrine, when invoked, must have connection with actual fact, must be based on some antecedent lawful lights. It has also been referred to as "the doctrine of relation back." (2 CJS 1310).19 Article 1146, Civil Code; Paulan, et al. vs. Sarabia, et al., G.R. L-10542, July 31, 1952.20 137 SCRA 314 (1985).