Republic of the Philippines The following facts have been proven at the trial, some without question and
n at the trial, some without question and the others by a
SUPREME COURT
Manila
EN BANC
G.R. No. L-39587             March 24, 1934
ALEKO E. LILIUS, ET AL., plaintiffs-appellants,  when the accident occurred. According to him, his writings netted him a monthly income of
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila Railroad Company, and the
other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First
Instance of Manila, the dispositive part of which reads as follows:
Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs,
for the purposes above stated, the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a joint action, it must be
understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum
of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the
plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital,
Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors
committed by the trial court in its said judgment, which will be discussed in the course of this
decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors
as committed by the same court a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein
alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity
for material and moral damages suffered by them through the fault and negligence of the said
defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the
filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies each and every
allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be
absolved from the complaint.
preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author
and photographer. At the time of the collision in question, he was a staff correspondent in the Far
East of the magazines The American Weekly of New York and The Sphere of London.
Some of his works have been translated into various languages. He had others in preparation
P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles
and books into English, German, and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his
4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car — driven by the said
plaintiff Aleko E. Lilius — for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing
trip. It was the first time that he made said trip although he had already been to many places,
driving his own car, in and outside the Philippines. Where the road was clear and unobstructed,
the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as
far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted
with the conditions of the road at said points and had no knowledge of the existence of a railroad
crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its
existence and inasmuch as there were many houses, shrubs and trees along the road, it was
impossible to see an approaching train. At about seven or eight meters from the crossing, coming
from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people,
who seemed to have alighted from the said truck, were walking on the opposite side. He slowed
down to about 12 miles an hour and sounded his horn for the people to get out of the way. With
his attention thus occupied, he did not see the crossing but he heard two short whistles.
Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be
locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station.
The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of
about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that
the plaintiff's wife and daughter were thrown from the car and were picked up from the ground
unconscious and seriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to
stop the locomotive until after it had gone about seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila
where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured
nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple
contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff
was highly nervous and very easily irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write articles nor short stories for the
newspapers and magazines to which he was a contributor, thus losing for some time his only
means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the
right leg, below the knee, and received a large lacerated wound on the forehead. She underwent
two surgical operations on the left leg for the purpose of joining the fractured bones but said
operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr.
Waterous, the deformity is permanent in character and as a result the plaintiff will have some
difficulty in walking. The lacerated wound, which she received on her forehead, has left a
disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other
on the left side of the face, in addition to fractures of both legs, above and below the knees. Her
condition was serious and, for several days, she was hovering between life and death. Due to a
timely and successful surgical operation, she survived her wounds. The lacerations received by
the child have left deep scars which will permanently disfigure her face, and because of the
fractures of both legs, although now completely cured, she will be forced to walk with some
difficulty and continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was
there anybody to warn the public of approaching trains. The flagman or switchman arrived after
the collision, coming from the station with a red flag in one hand and a green one in the other, both
of which were wound on their respective sticks. The said flagman and switchman had many times
absented himself from his post at the crossing upon the arrival of a train. The train left Bay station
a little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary evidence which the parties presented
at the trial in support of their respective contentions, and after taking into consideration all the
circumstances of the case, this court is of the opinion that the accident was due to negligence on
the part of the defendant-appellant company, for not having had on that occasion any semaphore
at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they
might take the necessary precautions before crossing the railroad; and, on the part of its
employees — the flagman and switchman, for not having remained at his post at the crossing in
question to warn passers-by of the approaching train; the stationmaster, for failure to send the
said flagman and switchman to his post on time; and the engineer, for not having taken the
necessary precautions to avoid an accident, in view of the absence of said flagman and
switchman, by slackening his speed and continuously ringing the bell and blowing the whistle
before arriving at the crossing. Although it is probable that the defendant-appellant entity
employed the diligence of a good father of a family in selecting its aforesaid employees, however,
it did not employ such diligence in supervising their work and the discharge of their duties
because, otherwise, it would have had a semaphore or sign at the crossing and, on previous
occasions as well as on the night in question, the flagman and switchman would have always
been at his post at the crossing upon the arrival of a train. The diligence of a good father of a
family, which the law requires in order to avoid damage, is not confined to the careful and prudent
selection of subordinates or employees but includes inspection of their work and supervision of the
discharge of their duties.
However, in order that a victim of an accident may recover indemnity for damages from the person
liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary
that the said victim has not, through his own negligence, contributed to the accident, inasmuch as
nobody is a guarantor of his neighbor's personal safety and property, but everybody should look
after them, employing the care and diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in order to avoid any damage. It appears
that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the
presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable
and have a happy ending, driving his car at a speed which prudence demanded according to the
circumstances and conditions of the road, slackening his speed in the face of an obstacle and
blowing his horn upon seeing persons on the road, in order to warn them of his approach and
request them to get out of the way, as he did when he came upon the truck parked on the left
hand side of the road seven or eight meters from the place where the accident occurred, and upon
the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen
before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after
having been free from obstacles, it was because, his attention having been occupied in attempting
to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its
existence, as he knew nothing about it beforehand. The first and only warning, which he received
of the impending danger, was two short blows from the whistle of the locomotive immediately
preceding the collision and when the accident had already become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant the Manila
Railroad Company alone is liable for the accident by reason of its own negligence and that of its
employees, for not having employed the diligence of a good father of a family in the supervision of
the said employees in the discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a quo as
indemnities for damages which the defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net
income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated
to him by the trial court as indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for
damages, the different items thereof representing doctor's fees, hospital and nursing services, loss
of personal effects and torn clothing, have duly been proven at the trial and the sum in question is
not excessive, taking into consideration the circumstances in which the said expenses have been
incurred.
Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E.
Lilius is — in the language of the court, which saw her at the trial — "young and beautiful and the
big scar, which she has on her forehead caused by the lacerated wound received by her from the
accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity
which renders it very difficult for her to walk", and taking into further consideration her social
standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages, excessive. In the case
of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was
fractured as a result of a collision between the autobus in which he was riding and the defendant's
car, which fractured required medical attendance for a considerable period of time. On the day of
the trial the fracture had not yet completely healed but it might cause him permanent lameness.
The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court
reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-
looking, nor had he suffered any facial deformity, nor did he have the social standing that the
herein plaintiff-appellant Sonja Maria Lilius enjoys.1ªvvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius
and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the
lacerations received by her have left deep scars that permanently disfigure her face and that the
fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme
care being necessary in order to keep her balance in addition to the fact that all of this unfavorably
and to a great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff
Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to
him by way of indemnity for damages consisting in the loss of his income as journalist and author
as a result of his illness. This question has impliedly been decided in the negative when the
defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to
be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his
wife's services in his business as journalist and author, which services consisted in going over his
writings, translating them into English, German and Swedish, and acting as his secretary, in
addition to the fact that such services formed part of the work whereby he realized a net monthly
income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect
that he needed them during her illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called
Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal
companionship", as a result of personal injuries which she had received from the accident now
under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the
provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual
rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties
and obligations of the spouses. The spouses must be faithful to, assist, and support each
other. The husband must live with and protect his wife. The wife must obey and live with
her husband and follow him when he changes his domicile or residence, except when he
removes to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on
his wife's assistance. This assistance comprises the management of the home and the
performance of household duties, including the care and education of the children and attention to
the husband upon whom primarily devolves the duty of supporting the family of which he is the
head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by
virtue of the marriage alone, that she performed all the said tasks and her physical incapacity
always redounded to the husband's prejudice inasmuch as it deprived him of her assistance.
However, nowadays when women, in their desire to be more useful to society and to the nation,
are demanding greater civil rights and are aspiring to become man's equal in all the activities of
life, commercial and industrial, professional and political, many of them spending their time outside
the home, engaged in their businesses, industry, profession and within a short time, in politics,
and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid,
to public or private institutions which take charge of young children while their mothers are at
work, marriage has ceased to create the presumption that a woman complies with the duties to
her husband and children, which the law imposes upon her, and he who seeks to collect indemnity
for damages resulting from deprivation of her domestic services must prove such services. In the
case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and
secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented
any evidence showing the existence of domestic services and their nature, rendered by her prior
to the accident, in order that it may serve as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely
personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs.
Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of
such services to prove that the person obliged to render them had done so before he was injured
and that he would be willing to continue rendering them had he not been prevented from so doing.
In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a crossing an does not see to it that its flagman
and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is
guilty of negligence and is civilly liable for damages suffered by a motorist and his family who
cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent
deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not
excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a
four-year old girl belonging to a well-to-do family, is not excessive; and (4) that in order that a
husband may recover damages for deprivation of his wife's assistance during her illness from an
accident, it is necessary for him to prove the existence of such assistance and his wife's
willingness to continue rendering it had she not been prevented from so doing by her illness.
The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the
indemnities adjudicated to them, from the date of the appealed judgment until this judgment
becomes final, in accordance with the provisions of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with
the sole modification that interest of 6 per cent per annum from the date of the appealed judgment
until this judgment becomes final will be added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21291               March 28, 1969
PRECIOLITA V. CORLISS, plaintiff-appellant,  Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that
vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.  and saw the train coming from Angeles and a jeep going towards the direction of Clark Field. He
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
  Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and
with reason. The future, bright with promise, looms ahead. One's powers are still to be tested, but
one feels ready for whatever challenge may come his way. There is that heady atmosphere of
self-confidence, at times carried to excess. The temptation to take risks is there, ever so often,
difficult, if not impossible, to resist. There could be then a lessening of prudence and foresight,
qualities usually associated with age. For death seems so remote and contingent an event. Such
is not always the case though, and a slip may be attended with consequences at times
unfortunate, even fatal.
  Some such thought apparently was in the mind of the lower court when it dismissed the
complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband,
the late Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when
the jeep he was driving collided with a locomotive of defendant-appellee Manila Railroad
Company, close to midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago,
Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, the lower
court, after summarizing the evidence, concluded that the deceased "in his eagerness to beat, so
to speak, the oncoming locomotive, took the risk and attempted to reach the other side, but
unfortunately he became the victim of his own miscalculation."  1
  The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory
proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought
in the concept of damages reaching the sum of P282,065.40. An examination of the evidence of
record fails to yield a basis for a reversal of the decision appealed from. We affirm.
  According to the decision appealed from, there is no dispute as to the following: "In December
1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr.
was an air police of the Clark Air Force Base; that at the time of the accident, he was driving the
fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and
that Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained
serious physical injuries and burns."  2
  Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus:
"Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, ..., that at the
time of the accident, he also awaiting transportation at the entrance of Clark Field, which was
about 40 to 50 yards away from the tracks and that while there he saw the jeep coming towards
the Base. He said that said jeep slowed down before reaching the crossing, that it made a brief
stop but that it did not stop — dead stop. Elaborating, he declared that while it was slowing down,
he could see the train coming from the direction of San Fernando and that he heard a warning but
that it was not sufficient enough to avoid the accident."  3 Also: "Virgilio de la Paz, another witness
of the plaintiff, testified that on the night of February 21, 1957, he was at the Balibago checkpoint
stated that he heard the whistle of the locomotive and saw the collision. The jeep, which caught
fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast
and heard the tooting of the horn. It did not stop at the railroad crossing, according to him."  4
  After which reference was made to the testimony of the main witness for defendant-appellee,
Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that before
the locomotive, which had been previously inspected and found to be in good condition
approached, the crossing, that is, about 300 meters away, he blew the siren and repeated it in
compliance with the regulations until he saw the jeep suddenly spurt and that although the
locomotive was running between 20 and 25 kilometers an hour and although he had applied the
brakes, the jeep was caught in the middle of the tracks."  5
  1. The above finding as to the non-existence of negligence attributable to defendant-appellee
Manila Railroad Company comes to us encased in the armor of what admittedly appears to be a
careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any attack
unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the
face of even the most formidable barrage.
  In the more traditional terminology, the lower court judgment has in its favor the presumption of
correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing
carefully what was testified to and apparently did not neglect it. There is no affront to justice then if
its finding be accorded acceptance subject of course the contingency of reversal if error or errors,
substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when there is found to be a
rational basis for the result reached by the trial court.
  As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is
the one at issue, the trial court's judgment as to their degree of credence deserves serious
consideration by this Court."  6 An earlier expression of the same view is found in Jai-Alai
Corporation v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings
of the court below. The questions raised hinge on credibility and it is well-settled that in the
absence of compelling reasons, its determination is best left to the trial judge why had the
advantage of hearing the parties testify and observing their demeanor on the witness stand."  7
  In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any
arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out by the evidence presented. We are denied,
therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the
Tribunal to hold trial judges better situated to make conclusions on questions of fact'."  8 On this
ground alone we can rest the affirmance of the judgment appealed from.lâwphi1.ñet
  2. Nor is the result different even if no such presumption were indulged in and the matter
examined as if we were exercising original and not appellate jurisdiction. The sad and deplorable
situation in which plaintiff-appellant now finds herself, to the contrary notwithstanding we find no
reason for reversing the judgment of the lower court.
  This action is predicated on negligence, the Civil Code making clear that whoever by act or
omission causes damage to another, there being negligence, is under obligation to pay for the
damage done. 9 Unless it could be satisfactorily shown, therefore, that defendant-appellee was
guilty of negligence then it could not be held liable. The crucial question, therefore, is the
existence of negligence.
  The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain,
formerly applicable in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v.
Cadwallader Gibson Lumber Co., 11Manresa was cited to the following effect "'Among the
questions most frequently raised and upon which the majority of cases have been decided with
respect to the application of this liability, are those referring to the determination of the damage or
prejudice, and to the fault or negligence of the person responsible therefor. These are the two
indispensable factors in the obligations under discussion, for without damage or prejudice there
can be no liability, and although this element is present no indemnity can be awarded unless
arising from some person's fault or negligence'."
  Negligence was defined by us in two 1912 decisions, United States v. Juanillo  12 and United
States v. Barias. 13Cooley' formulation was quoted with approval in both the Juanillo and Barias
decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be:
"The failure to observe for the protection of the interests of another person that degree of care,
precaution and vigilance which the circumstance justly demand whereby such other person suffers
injury." There was likewise a reliance on Ahern v. Oregon Telephone Co.  14 Thus: "Negligence is
want of the care required by the circumstances. It is a relative or comparative, not an absolute
term and its application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the danger is great, a high degree of
care is necessary, and the failure to observe it is a want of ordinary care under the
circumstances."
  To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action
of plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that
the liability sought to be fastened on defendant-appellee had not arisen.
  3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from
on the ground that there was a failure to appreciate the true situation. Thus the first three assigned
errors are factual in character. The third assigned error could be summarily disposed of. It would
go against the evidence to maintain the view that the whistle was not sounded and the brakes not
applied at a distance of 300 meters before reaching the crossing.
  The first two assigned errors would make much of the failure of the lower court to hold that the
crossing bars not having been put down and there being no guard at the gate-house, there still
was a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who
drove the engine, was not qualified to do so at the time of the accident. For one cannot just single
out circumstance and then confidently assign to it decisive weight and significance. Considered
separately, neither of the two above errors assigned would call for a judgment different in
character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the
result. The quantum of proof required still not been met. The alleged errors fail of their said effect.
The case for plaintiff-appellant, such as it had not been improved. There is no justification for
reversing the judgment of the lower court.
  It cannot be stressed too much that the decisive considerations are too variable, too dependent
in the lid analysis upon a common sense estimate of the situation as it presented itself to the
parties for us to be able to say that this or that element having been isolated, negligence is shown.
The factors that enter the judgment are too many and diverse for us to imprison them in a formula
sufficient of itself to yield the correct answer to the multi-faceted problems the question of
negligence poses. Every case must be dependent on its facts. The circumstances indicative of
lack of due care must be judged in the light of what could reasonably be expected of the parties. If
the objective standard of prudence be met, then negligence is ruled out.
  In this particular case, it would be to show less than fidelity to the controlling facts to impute
negligence to defendant-appellee. The first three errors assigned certainly do not call for that
conclusion.
  4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant
apparently had in mind this portion of the opinion of the lower court: "The weight of authorities is to
the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it,
and that those who, for reasons of their own, ignore such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily,
must have known that locomotive engines and trains usually pass at that particular crossing where
the accident had taken place." 15
  Her assignment of error, however, would single out not the above excerpt from the decision
appealed from but what to her is the apparent reliance of the lower court on  Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v. Manlabat & Pasibi. 17 In the Manabat case, the
doctrine announced by this Court follows: "A person in control of an automobile who crosses a
railroad, even at a regular road crossing, and who does not exercise that precaution and that
control over it as to be able to stop the same almost immediately upon the appearance of a train,
is guilty of criminal negligence, providing a collision occurs and injury results. Considering the
purposes and the general methods adopted for the management of railroads and railroad trains,
we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of
seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should
look and listen and do everything that a reasonably prudent man would do before he attempts to   WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is
cross the track." The Mestres doctrine in a suit arising from a collision between an automobile and affirmed. Without pronouncement as to costs.
a street car is substantially similar. Thus: "It may be said, however, that, where a person is nearing
a street crossing toward which a car is approaching, the duty is on the party to stop and avoid a
collision who can most readily adjust himself to the exigencies of the case, and where such person
can do so more readily, the motorman has a right to presume that such duty will be performed."

  It is true, as plaintiff-appellant would now allege that there has been a drift away from the
apparent rigid and inflexible doctrine thus set forth in the two above cases evidenced by Lilius v.
Manila Railroad Co., 18 the controlling facts of which, however, are easily distinguishable from what
had been correctly ascertained in the present case. Such a deviation from the earlier principle
announced is not only true of this jurisdiction but also of the United States.

  This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the
following to say: "Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would require
an automobile driver approaching a railroad crossing with an obstructed view to stop, look and
listen, and if he cannot be sure otherwise that no train is coming to get out of the car. The basic
idea behind this is sound enough: it is by no means proper care to cross a railroad track without
taking reasonable precautions against a train, and normally such precautions will require looking,
hearing, and a stop, or at least slow speed, where the view is obstructed." 19

  Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to
Prosser, it being shown that "the only effective stop must be made upon the railway tracks
themselves, in a position of obligation danger, the court disregarded any such uniform rule,
rejecting the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and
sometimes even dangerous,' and saying that the driver need not always stop. 'Illustrations such as
these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of
behavior that amount to rules of law.... Extraordinary situations may not wisely or fairly be
subjected to tests or regulations that are fitting for the commonplace or normal." 21

  What Justice Cardozo announced would merely emphasize what was set forth earlier that each
and every, case on questions of negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and fast rule. There must be that
observance of that degree of care, precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it.

  What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated
on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity
with the setup of the checkpoint, the existence of the tracks; and on the further fact that the
locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that
Corliss Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon
him to avoid a possible accident — and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar circumstances would
have acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191             October 14, 1918
JOSE CANGCO, plaintiff-appellant,  The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's office in the city of
Manila where he worked, he used a pass, supplied by the company, which entitled him to ride
upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the
plaintiff arose from his seat in the second class-car where he was riding and, making, his exit
through the door, took his position upon the steps of the coach, seizing the upright guardrail with
his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement
platform which begins to rise with a moderate gradient some distance away from the company's
office and extends along in front of said office for a distance sufficient to cover the length of
several coaches. As the train slowed down another passenger, named Emilio Zuñiga, also an
employee of the railroad company, got off the same car, alighting safely at the point where the
platform begins to rise from the level of the ground. When the train had proceeded a little farther
the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack
of watermelons with the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the moving car, where
his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the
train the car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is
found in the fact that it was the customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were contained in numerous
sacks which has been piled on the platform in a row one upon another. The testimony shows that
this row of sacks was so placed of melons and the edge of platform; and it is clear that the fall of
the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these objects in the darkness is
readily to be credited.
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The
result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was again amputated higher up near
the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence of
the servants and employees of the defendant in placing the sacks of melons upon the platform
and leaving them so placed as to be a menace to the security of passenger alighting from the
company's trains. At the hearing in the Court of First Instance, his Honor, the trial judge, found the
facts substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were
so placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff
himself had failed to use due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff
appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in
piling these sacks on the platform in the manner above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal
cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant company is
liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own
contributory negligence. In resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and the contributory
negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at
all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its servants, imposed by article
1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex
contractu, but only to extra-contractual obligations — or to use the technical form of expression,
that article relates only to culpa  aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and independent, which of
itself constitutes the source of an obligation between persons not formerly connected by any legal
tie" and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one
another. But where relations already formed give rise to duties, whether springing from
contract or quasi-contract, then breaches of those duties are subject to article 1101, 1103,
and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at
365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in
certain cases imposed upon employers with respect to damages occasioned by the negligence of
their employees to persons to whom they are not bound by contract, is not based, as in the
English Common Law, upon the principle of respondeat superior — if it were, the master would be
liable in every case and unconditionally — but upon the principle announced in article 1902 of the
Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who places a powerful automobile in the
hands of a servant whom he knows to be ignorant of the method of managing such a vehicle, is
himself guilty of an act of negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the very instant that the unskillful
servant, while acting within the scope of his employment causes the injury. The liability of the
master is personal and direct. But, if the master has not been guilty of any negligence whatever in
the selection and direction of the servant, he is not liable for the acts of the latter, whatever done
within the scope of his employment or not, if the damage done by the servant does not amount to
a breach of the contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant
relieves the master from liability for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-
contractual culpa is always based upon a voluntary act or omission which, without willful intent,
but by mere negligence or inattention, has caused damage to another. A master who exercises all
possible care in the selection of his servant, taking into consideration the qualifications they should
possess for the discharge of the duties which it is his purpose to confide to them, and directs them
with equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third person suffer damage. True it is that under
article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due
care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa  exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory
of the extra-contractual liability of the defendant to respond for the damage caused by the
carelessness of his employee while acting within the scope of his employment. The Court, after
citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in
selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and
not on that of his servant. This is the notable peculiarity of the Spanish law of negligence.
It is, of course, in striking contrast to the American doctrine that, in relations with
strangers, the negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been some fault
attributable to the defendant personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason
of the breach of the duties inherent in the special relations of authority or superiority existing
between the person called upon to repair the damage and the one who, by his act or omission,
was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of
their servants or agents, when such acts or omissions cause damages which amount to the
breach of a contact, is not based upon a mere presumption of the master's negligence in their
selection or control, and proof of exercise of the utmost diligence and care in this regard does not
relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of
each member of society constitute the measure of the corresponding legal duties, mainly negative
in character, which the existence of those rights imposes upon all other members of society. The
breach of these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental distinction
between obligations of this character and those which arise from contract, rests upon the fact that
in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which
creates the vinculum juris, whereas in contractual relations the vinculum  exists independently of
the breach of the voluntary duty assumed by the parties when entering into the contractual
relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it
is competent for the legislature to elect — and our Legislature has so elected — whom such an
obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack of moral culpability, so as to include responsibility for
the negligence of those person who acts or mission are imputable, by a legal fiction, to others who
are in a position to exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined
exceptions — to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of persons who, by reason of
their status, occupy a position of dependency with respect to the person made liable for their
conduct.
The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden
of proof rests upon plaintiff to prove the negligence — if he does not his action fails. But when the
facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is
alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on
the part of the defendant, or of his servants or agents. Proof of the contract and of its
nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor
should assume the burden of proof of its existence, as the only fact upon which his action
is based; while on the contrary, in a case of negligence which presupposes the existence
of a contractual obligation, if the creditor shows that it exists and that it has been broken,
it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the
breach was due to the negligent conduct of defendant or of his servants, even though such be in
fact the actual cause of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the contract would not
constitute a defense to the action. If the negligence of servants or agents could be invoked as a
means of discharging the liability arising from contract, the anomalous result would be that person
acting through the medium of agents or servants in the performance of their contracts, would be in
a better position than those acting in person. If one delivers a valuable watch to watchmaker who
contract to repair it, and the bailee, by a personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his liability for the breach of his contract,
which involves the duty to exercise due care in the preservation of the watch, if he shows that it
was his servant whose negligence caused the injury? If such a theory could be accepted, juridical
persons would enjoy practically complete immunity from damages arising from the breach of their
contracts if caused by negligent acts as such juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in most instances that reasonable care had been
taken in selection and direction of such servants. If one delivers securities to a banking
corporation as collateral, and they are lost by reason of the negligence of some clerk employed by
the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the
breach of its contract to return the collateral upon the payment of the debt by proving that due care
had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source  of an obligation, and culpa contractual  as
a mere incident to the performance of a contract has frequently been recognized by the supreme
court of Spain. (Sentencias  of June 27, 1894; November 20, 1896; and December 13, 1896.) In
the decisions of November 20, 1896, it appeared that plaintiff's action arose  ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense.
The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of damages
caused by the defendant's failure to carry out the undertakings imposed by the contracts .
...
A brief review of the earlier decision of this court involving the liability of employers for damage
done by the negligent acts of their servants will show that in no case has the court ever decided
that the negligence of the defendant's servants has been held to constitute a defense to an action
for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage
was not liable for the damages caused by the negligence of his driver. In that case the court
commented on the fact that no evidence had been adduced in the trial court that the defendant
had been negligent in the employment of the driver, or that he had any knowledge of his lack of
skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff which
was allowed to get adrift by the negligence of defendant's servants in the course of the
performance of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract made between it and the plaintiff . . . we do not
think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to
recover damages for the personal injuries caused by the negligence of defendant's chauffeur while
driving defendant's automobile in which defendant was riding at the time. The court found that the
damages were caused by the negligence of the driver of the automobile, but held that the master
was not liable, although he was present at the time, saying:
 . . . unless the negligent acts of the driver are continued for a length of time as to give the
owner a reasonable opportunity to observe them and to direct the driver to desist
therefrom. . . . The act complained of must be continued in the presence of the owner for
such length of time that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil.
Rep., 8), it is true that the court rested its conclusion as to the liability of the defendant upon article
1903, although the facts disclosed that the injury complaint of by plaintiff constituted a breach of
the duty to him arising out of the contract of transportation. The express ground of the decision in
this case was that article 1903, in dealing with the liability of a master for the negligent acts of his
servants "makes the distinction between private individuals and public enterprise;" that as to the
latter the law creates a rebuttable presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as
though founded in tort rather than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the questions of law were in fact
discussed upon this theory. Viewed from the standpoint of the defendant the practical result must
have been the same in any event. The proof disclosed beyond doubt that the defendant's servant
was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for the injury suffered by
plaintiff, whether the breach of the duty were to be regarded as constituting  culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether negligence
occurs an incident in the course of the performance of a contractual undertaking or its itself the
source of an extra-contractual undertaking obligation, its essential characteristics are identical.
There is always an act or omission productive of damage due to carelessness or inattention on the
part of the defendant. Consequently, when the court holds that a defendant is liable in damages
for having failed to exercise due care, either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result is identical in either case. Therefore, it
follows that it is not to be inferred, because the court held in the Yamada case that defendant was
liable for the damages negligently caused by its servants to a person to whom it was bound by
contract, and made reference to the fact that the defendant was negligent in the selection and
control of its servants, that in such a case the court would have held that it would have been a
good defense to the action, if presented squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the selection and control of the
servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres
of contractual and extra-contractual obligations. The field of non- contractual obligation is much
more broader than that of contractual obligations, comprising, as it does, the whole extent of
juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the
mere fact that a person is bound to another by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation exists the obligor may break the contract
under such conditions that the same act which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him
in safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That
duty, being contractual, was direct and immediate, and its non-performance could not be excused
by proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until
the train had come to a complete stop before alighting. Under the doctrine of comparative
negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It is, therefore, important to
ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting,
the particular injury suffered by him could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for a passenger to alight from a
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the
opinion that this proposition is too badly stated and is at variance with the experience of every-day
life. In this particular instance, that the train was barely moving when plaintiff alighted is shown
conclusively by the fact that it came to stop within six meters from the place where he stepped
from it. Thousands of person alight from trains under these conditions every day of the year, and
sustain no injury where the company has kept its platform free from dangerous obstructions.
There is no reason to believe that plaintiff would have suffered any injury whatever in alighting as
he did had it not been for defendant's negligent failure to perform its duty to provide a safe
alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is
to be considered whether an ordinarily prudent person, of the age, sex and condition of
the passenger, would have acted as the passenger acted under the circumstances
disclosed by the evidence. This care has been defined to be, not the care which may or
should be used by the prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there anything in the circumstances surrounding the
plaintiff at the time he alighted from the train which would have admonished a person of average
prudence that to get off the train under the conditions then existing was dangerous? If so, the
plaintiff should have desisted from alighting; and his failure so to desist was contributory
negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn to
the effect that plaintiff was guilty of contributory negligence is that he stepped off the car without
being able to discern clearly the condition of the platform and while the train was yet slowly
moving. In considering the situation thus presented, it should not be overlooked that the plaintiff
was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of melons
piled on the platform existed; and as the defendant was bound by reason of its duty as a public
carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to
assume, in the absence of some circumstance to warn him to the contrary, that the platform was
clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a
failure upon the part of the defendant in the performance of a duty owing by it to the plaintiff; for if
it were by any possibility concede that it had right to pile these sacks in the path of alighting
passengers, the placing of them adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The distance from the steps of the
car to the spot where the alighting passenger would place his feet on the platform was thus
reduced, thereby decreasing the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the passenger a stable and even surface
on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off while the train was yet moving as the
same act would have been in an aged or feeble person. In determining the question of
contributory negligence in performing such act — that is to say, whether the passenger acted
prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances
necessarily affecting the safety of the passenger, and should be considered. Women, it has been
observed, as a general rule are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again,
it may be noted that the place was perfectly familiar to the plaintiff as it was his daily custom to get
on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character of the platform
where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to alight
while the train was yet slightly under way was not characterized by imprudence and that therefore
he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered have permanently disabled him from continuing
that employment. Defendant has not shown that any other gainful occupation is open to plaintiff.
His expectancy of life, according to the standard mortality tables, is approximately thirty-three
years. We are of the opinion that a fair compensation for the damage suffered by him for his
permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32611             November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,  was chosen as the one most adapted to the purpose. After this appliance had been installed, the
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
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 seem to be incompatible with the situation now under consideration. But though defendant cannot
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was be held liable in the supposition that the burden of proof had not been sustained by it in disproving
apparently at too great an elevation from the carburetor, with the result that when the fuel line was the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the preponderance that the accident to the Gwendolineand the damages resulting therefrom are
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the chargeable to the negligence or lack of skill of Quest.
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 This action was instituted about two years after the accident in question had occured, and after
inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any Quest had ceased to be manager of the defendant corporation and had gone back to the United
disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created States. Upon these facts, the defendant bases the contention that the action should be considered
a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have stale. It is sufficient reply to say that the action was brought within the period limited by the statute
taken precautions to avoid. The back fire may have been due either to the fact that the spark was of limitations and the situation is not one where the defense of laches can be properly invoked.
too advanced or the fuel improperly mixed.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount of
In this connection it must be remembered that when a person holds himself out as being P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.
competent to do things requiring professional skill, he will be held liable for negligence if he fails to
exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do.
The proof shows that Quest had had ample experience in fixing the engines of automobiles and
tractors, but it does not appear that he was experienced in the doing of similar work on boats. For
this reason, possibly the dripping of the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression of the danger of fire. But a person
skilled in that particular sort of work would, we think have been sufficiently warned from those
circumstances to cause him to take greater and adequate precautions against the danger. In other
words Quest did not use the skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The
burning of the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of
skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest was
free from blame.

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

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendoline during the experimental run, the defendant corporation was in the position of a
bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself
from responsibility by proving that the accident was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on
this trial run. His employment contemplated the installation of new parts in the engine only, and it
seems rather strained to hold that the defendant corporation had thereby become bailee of the
boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee acquires possession
and what is usually spoken of as special property in the chattel bailed. As a consequence of such
possession and special property, the bailee is given a lien for his compensation. These ideas
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,  latter told the barrio captain that he could not do it but that he was going to look
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First
Instance of Pangasinan and FIDEL H. SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.
ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX,
in Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager
of the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory
negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering
the defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00)
for the death of his son, Manuel Saynes; the sum of One Thousand Two
Hundred Pesos (P1,200.00) for actual expenses for and in connection with the
burial of said deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as
reasonable attorney's fee, or a total of Nine Thousand Seven Hundred
(P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of Alcala
Pangasinan, which started from 2:00 o'clock in the afternoon and lasted up to
about midnight of the same day. During the storm, the banana plants standing on
an elevated ground along the barrio road in San Pedro Ili of said municipality and
near the transmission line of the Alcala Electric Plant were blown down and fell
on the electric wire. As a result, the live electric wire was cut, one end of which
was left hanging on the electric post and the other fell to the ground under the
fallen banana plants.
On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of
San Pedro Iii who was passing by saw the broken electric wire and so he warned
the people in the place not to go near the wire for they might get hurt. He also
saw Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and
notified him right then and there of the broken line and asked him to fix it, but the
for the lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left the place, a
small boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose
house is just on the opposite side of the road, went to the place where the broken
line wire was and got in contact with it. The boy was electrocuted and he
subsequently died. It was only after the electrocution of Manuel Saynes that the
broken wire was fixed at about 10:00 o'clock on the same morning by the
lineman of the electric plant.
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that
caused the banana plants to fall and cut the electric line-pointing out the absence of negligence on
the part of his employee Cipriano Baldomero who tried to have the line repaired and the presence
of negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at
the place of the incident standing on an elevated ground which were about 30 feet high and which
were higher than the electric post supporting the electric line, and yet the employees of the
defendant who, with ordinary foresight, could have easily seen that even in case of moderate
winds the electric line would be endangered by banana plants being blown down, did not even
take the necessary precaution to eliminate that source of danger to the electric line. Second, even
after the employees of the Alcala Electric Plant were already aware of the possible damage the
storm of May 14, 1972, could have caused their electric lines, thus becoming a possible threat to
life and property, they did not cut off from the plant the flow of electricity along the lines, an act
they could have easily done pending inspection of the wires to see if they had been cut. Third,
employee Cipriano Baldomero was negligent on the morning of the incident because even if he
was already made aware of the live cut wire, he did not have the foresight to realize that the same
posed a danger to life and property, and that he should have taken the necessary precaution to
prevent anybody from approaching the live wire; instead Baldomero left the premises because
what was foremost in his mind was the repair of the line, obviously forgetting that if left unattended
to it could endanger life and property.
On defendants' argument that the proximate cause of the victim's death could be attributed to the SO ORDERED.
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to
leave the house alone on the morning of the incident and go to a nearby place cut wire was very
near the house (where victim was living) where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but we cannot agree with petitioner's theory that the parents'
negligence constituted the proximate cause of the victim's death because the real proximate
cause was the fallen live wire which posed a threat to life and property on that morning due to the
series of negligence adverted to above committed by defendants' employees and which could
have killed any other person who might by accident get into contact with it. Stated otherwise, even
if the child was allowed to leave the house unattended due to the parents' negligence, he would
not have died that morning where it not for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in
this case) was only contributory, the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. This law may be availed of by the petitioner but does not exempt him
from liability. Petitioner's liability for injury caused by his employees negligence is well defined in
par. 4, of Article 2180 of the Civil Code, which states:

The owner and manager of 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 tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in
this case, either in its appreciation of the evidence on questions of facts or on the interpretation
and application of laws government quasi-delicts and liabilities emanating therefrom. The
inevitable conclusion is that no error amounting to grave abuse of discretion was committed and
the decision must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

Costs against petitioner.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12219            March 15, 1918
AMADO PICART, plaintiff-appellant,  manner above described was guilty of negligence such as gives rise to a civil obligation to repair
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
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.
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.

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
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, 
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance
of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30,
1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation
allegedly undertaken by PLDT for the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left
uncovered because of the creeping darkness and the lack of any warning light or signs. As a
result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs
and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips.
In addition, the windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor
which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed
a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT
should in no manner be answerable for any accident or injuries arising from the negligence or
carelessness of Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not
aware nor was it notified of the accident involving respondent spouses and that it had complied
with the terms of its contract with PLDT by installing the necessary and appropriate standard signs
in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at
night along the excavated area to warn the traveling public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the
decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long
Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages
and P500.00 as exemplary damages, with legal rate of interest from the date of
the filing of the complaint until fully paid. The defendant is hereby ordered to pay
the plaintiff the sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount
the defendant-third party plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to
the amount of damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision
in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of
the lower court and dismissing the complaint of respondent spouses. It held that respondent
Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for
damages.7 A copy of this decision was received by private respondents on October 10, 1979. 8 On
October 25, 1979, said respondents filed a motion for reconsideration dated October 24,
1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said
motion for reconsideration.10 This resolution was received by respondent spouses on February 22,
1980.11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for
leave of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March
11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed
respondents to file a second motion for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto,
private respondents had already filed their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second
motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the
resolution of the second motion for reconsideration, designated two additional justices to form a
division of five.16 On September 3, 1980, said division of five promulgated its resolution, penned by
Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto the decision of the lower court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of
the resolution of September 3, 1980, contending that the second motion for reconsideration of
private respondent spouses was filed out of time and that the decision of September 25, 1979
penned by Justice Agrava was already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the contract between them and, under
the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in toto the decision of the lower court dated October
1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September
25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already
final, and on the additional ground that said second motion for reconsideration is  pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying
the independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the
records and admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with
Justice Agrava 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 arguendo that there was
some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only
purpose of said signs was to inform and warn the public of the presence of excavations on the
site. The private respondents already knew of the presence of said excavations. It was not the
lack of knowledge of these excavations which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the omission to perform a duty, such as the placing
of warning signs on the site of the excavation, constitutes the proximate cause only when the
doing of the said omitted act would have prevented the injury. 31 It is basic that private respondents
cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care
was the cause thereof. It is both a societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban
had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he
imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and location of the excavations there. It was his
negligence that exposed him and his wife to danger, hence he is solely responsible for the
consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that
there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of the
incident and the non-submission of a medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs
themselves, and such evidence should be very carefully evaluated, with
defendant, as the party being charged, being given the benefit of any doubt.
 Definitely without ascribing the same motivation to plaintiffs, another person
could have deliberately engineered a similar accident in the hope and
expectation that the Court can grant him substantial moral and exemplary
damages from the big corporation that defendant is. The statement is made only
to stress the disadvantageous position of defendant which would have extreme
difficulty in contesting such person's claim. If there were no witness or record
available from the police department of Bacolod, defendant would not be able to
determine for itself which of the conflicting testimonies of plaintiffs is correct as to
the report or non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the existence
of such fault or negligence causative thereof. The facts constitutive of negligence must be
affirmatively established by competent evidence. 33 Whosoever relies on negligence for his cause
of action has the burden in the first instance of proving the existence of the same if contested,
otherwise his action must fail.

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

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,  is the result of the negligence of the defendants;
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo
Dionisio was on his way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a
cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation.
During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio
was driving his Volkswagen car and had just crossed the intersection of General Lacuna and
General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down
General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his
headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away
from his car. The dump truck, owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on
the right hand side of a person facing in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the
street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming
traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near
the dump truck, front or rear. The dump truck had earlier that evening been driven home by
petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in
view of work scheduled to be carried out early the following morning, Dionisio claimed that he tried
to avoid a collision by swerving his car to the left but it was too late and his car smashed into the
dump truck. As a result of the collision, Dionisio suffered some physical injuries including some
permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident, while under the influence of liquor, without
his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised
due rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills
and the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of
expected income for plaintiff brought about the accident in controversy and which
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral
damages for the unexpected and sudden withdrawal of plaintiff from his lifetime
career as a marketing man; mental anguish, wounded feeling, serious anxiety,
social humiliation, besmirched reputation, feeling of economic insecurity, and the
untold sorrows and frustration in life experienced by plaintiff and his family since
the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for
the wanton disregard of defendants to settle amicably this case with the plaintiff
before the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified the award of damages to the following
extent:
1. The award of P15,000.00 as compensatory damages was
reduced to P6,460.71, the latter being the only amount that the
appellate court found the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of expected income was
reduced to P100,000.00,  basically because Dionisio had
voluntarily resigned his job such that, in the opinion of the
appellate court, his loss of income "was not solely attributable to
the accident in question;" and
3. The award of P100,000.00 as moral damages was held by
the appellate court as excessive and unconscionable and hence
reduced to P50,000.00.
 The award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs remained
untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which
both courts drew the inference that there was negligence on the part of Carbonel, the dump truck
driver, and that this negligence was the proximate cause of the accident and Dionisio's injuries.
We note, however, that both courts failed to pass upon the defense raised by Carbonel and
Phoenix that the true legal and proximate cause of the accident was not the way in which the
dump truck had been parked but rather the reckless way in which Dionisio had driven his car that
night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned
decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see
the relevance of Dionisio's negligence and made no further mention of it. We have examined the
record both before the trial court and the Intermediate Appellate Court and we find that both
parties had placed into the record sufficient evidence on the basis of which the trial court and the
appellate court could have and should have made findings of fact relating to the alleged reckless
manner in which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend
that if there was negligence in the manner in which the dump truck was parked, that negligence
was merely a "passive and static condition" and that private respondent Dionisio's recklessness
constituted an intervening, efficient cause determinative of the accident and the injuries he
sustained. The need to administer substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years, compels us to address directly the
contention put forward by the petitioners and to examine for ourselves the record pertaining to
Dionisio's alleged negligence which must bear upon the liability, or extent of liability, of Phoenix
and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was
intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the
person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence
here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment immediately after the accident. At the Makati
Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce
any curfew pass during the trial. Instead, he offered the explanation that his family may have
misplaced his curfew pass. He also offered a certification (dated two years after the accident)
issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp
Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio
had a valid curfew pass. This certification did not, however, specify any pass serial number or date
or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was
unable to prove possession of a valid curfew pass during the night of the accident and that the
preponderance of evidence shows that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew pass that night lies in the light it tends to
shed on the other related issues: whether Dionisio was speeding home and whether he had
indeed purposely put out his headlights before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station for travelling after the onset of curfew
without a valid curfew pass.
On the second issue — whether or not Dionisio was speeding home that night — both the trial
court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the
scene of the accident almost immediately after it occurred, the police station where he was based
being barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the
scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30
kilometers per hour and had just crossed the intersection of General Santos and General Lacuna
Streets and had started to accelerate when his headlights failed just before the collision took
place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not
fag within any of the recognized exceptions to the hearsay rule since the facts he testified to were
not acquired by him through official information and had not been given by the informants
pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that
the testimony of Patrolman Cuyno is admissible not under the official records exception to the
hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to
the hearsay rule consists of excited utterances made on the occasion of an occurrence or event
sufficiently startling in nature so as to render inoperative the normal reflective thought processes
of the observer and hence made as a spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary
object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than
reflective, reactions from observers who happened to be around at that time. The testimony of
Patrolman Cuyno was therefore admissible as part of the res gestae  and should have been
considered by the trial court. Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to describe quantitatively the
precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments before the accident. The Intermediate
Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before he reached the intersection so as not to be
detected by the police in the police precinct which he (being a resident in the area) knew was not
far away from the intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio — i.e., that he had his headlights on
but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned
and gone off, although he succeeded in switching his lights on again at "bright" split seconds
before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the
Makati Medical Center in an unconscious condition. 7This testimony has to be taken in conjunction
with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his
boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so
heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of
reckless imprudence. 8 There simply is not enough evidence to show how much liquor he had in
fact taken and the effects of that upon his physical faculties or upon his judgment or mental
alertness. We are also aware that "one shot or two" of hard liquor may affect different people
differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving
faster than he should have been. Worse, he extinguished his headlights at or near the intersection
of General Lacuna and General Santos Streets and thus did not see the dump truck that was
parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that
the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful — or
negligent manner in which the dump truck was parked in other words, the negligence of petitioner
Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on
the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a
slightly different manner, the collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause
and that consequently Dionisio's negligence must be regarded as the legal and proximate cause
of the accident rather than the earlier negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the older cases in various jurisdictions in the
United States but we are unable to persuade ourselves that these arguments have any validity for
our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause"
and "condition" which the 'petitioners would have us adopt have already been "almost entirely
discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active
"cause" of the harm and the existing "conditions" upon which that cause
operated. If the defendant has created only a passive static condition which
made the damage possible, the defendant is said not to be liable. But so far as
the fact of causation is concerned, in the sense of necessary antecedents which
have played an important part in producing the result it is quite impossible to
distinguish between active forces and passive situations, particularly since, as is
invariably the case, the latter are the result of other active forces which have
gone before. The defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of fire. When a
spark ignites the gasoline, the condition has done quite as much to bring about
the fire as the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility. Even the lapse of a
considerable time during which the "condition" remains static will not necessarily
affect liability; one who digs a trench in the highway may still be liable to another
who fans into it a month afterward. "Cause" and "condition" still find occasional
mention in the decisions; but the distinction is now almost entirely discredited. So
far as it has any validity at all, it must refer to the type of case where the forces
set in operation by the defendant have come to rest in a position of apparent
safety, and some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but the nature of
the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump truck
and the private respondent's car would in an probability not have occurred had the dump truck not
been parked askew without any warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the truck driver's negligence and
therefore closer to the accident, was not an efficient intervening or independent cause. What the
Petitioners describe as an "intervening cause" was no more than a foreseeable consequent
manner which the truck driver had parked the dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon
them the very risk the truck driver had created. Dionisio's negligence was not of an independent
and overpowering nature as to cut, as it were, the chain of causation in fact between the improper
parking of the dump truck and the accident, nor to sever the juris vinculum of liability. It is helpful
to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in
ordinary human experience is reasonably to be anticipated or one which the
defendant has reason to anticipate under the particular circumstances, the
defendant may be negligence among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that reason. Thus one who
sets a fire may be required to foresee that an ordinary, usual and customary wind
arising later wig spread it beyond the defendant's own property, and therefore to
take precautions to prevent that event. The person who leaves the combustible
or explosive material exposed in a public place may foresee the risk of fire from
some independent source. ... In all of these cases there is an intervening cause
combining with the defendant's conduct to produce the result and in each case
the defendant's negligence consists in failure to protect the plaintiff against that
very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk
or a substantial and important part of the risk, to which the defendant has
subjected the plaintiff has indeed come to pass. Foreseeable intervening forces
 are within the scope original risk, and hence of the defendant's negligence.  The
courts are quite generally agreed that intervening causes which fall fairly in this
category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual
weather of the vicinity, including all ordinary forces of nature such as usual wind
or rain, or snow or frost or fog or even lightning;  that one who leaves an
obstruction on the road or a railroad track should foresee that a vehicle or a train
will run into it; ...
The risk created by the defendant may include the intervention of the
foreseeable negligence of others. ... [The standard of reasonable conduct may
require the defendant to protect the plaintiff against 'that occasional negligence
which is one of the ordinary incidents of human life, and therefore to be
anticipated.'  Thus, a defendant who blocks the sidewalk and forces the plaintiff to
walk in a street where the plaintiff will be exposed to the risks of heavy traffic
becomes liable when the plaintiff is run down by a car, even though the car is
negligently driven;  and one who parks an automobile on the highway without
lights at night is not relieved of responsibility when another negligently drives into
it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner truck driver was negligent, private respondent
Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that
Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last
clear chance doctrine of the common law was imported into our jurisdiction by Picart vs.
Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil
Code of the Philippines. The historical function of that doctrine in the common law was to mitigate
the harshness of another common law doctrine or rule that of contributory negligence.  12 The
common law rule of contributory negligence prevented any recovery at all by a plaintiff who was
also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful
act or omission of the defendant. 13 The common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been negligent provided that the defendant had the
last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what
role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has
itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its common
law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We
do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose
negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury.
That task is not simply or even primarily an exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location
in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only
one of the relevant factors that may be taken into account. Of more fundamental importance are
the nature of the negligent act or omission of each party and the character and gravity of the risks
created by such act or omission for the rest of the community. The petitioners urge that the truck
driver (and therefore his employer) should be absolved from responsibility for his own prior
negligence because the unfortunate plaintiff failed to act with that increased diligence which had
become necessary to avoid the peril precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to wiping out the fundamental principle of
law that a man must respond for the forseeable consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to
allocate them among the members of society. To accept the petitioners' pro-position must tend to
weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix 16in supervising its employees properly and adequately. The respondent
appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this
presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the
dump truck to his home whenever there was work to be done early the following morning, when
coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which
the dump truck is parked when away from company premises, is an affirmative showing of  culpa
in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other
hand, 17 we believe that the demands of substantial justice are satisfied by allocating most of the
damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court,
except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and
costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by
petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners.
Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the
aggregate amount of compensatory damages, loss of expected income and moral damages
private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77679 September 30, 1987
VICENTE VERGARA, petitioner,  It is undisputed that private respondent suffered damages as a result of an act or omission of
vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.
RESOLUTION
 
PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private
respondent against petitioner. The action arose from a vehicular accident that occurred on 5
August 1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging
to petitioner, rammed "head-on" the store-residence of the private respondent, causing damages
thereto which were inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte
operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused
to respond to his effort and as a result of a blown-out tire and despite application of his brakes, the
said cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident
was an act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation,
alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was
insured by the third party defendant insurance company. Petitioner asked that the latter be
ordered to pay him whatever amount he may be ordered by the court to pay to the private
respondent.
The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of
Appeals, the latter court affirmed in toto the decision of the trial court, which ordered Petitioner to
pay, jointly and severally with Travellers Insurance and Surety Corporation, to the private,
respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as moral damages;
(c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees and the
costs. On the third party complaint, the insurance company was sentenced to pay to the petitioner
the following: (a) P50,000.00 for third party liability under its comprehensive accident insurance
policy; and (b) P3,000.00 for and as attorney's fees.
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is
not tenable. It was established by competent evidence that the requisites of a quasi-delict are
present in the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act
or omission, of which defendant, or some person for whose acts he must respond, was guilty; and
(3) the connection of cause and effect between such negligence and the damages.
petitioner. The issue of whether or not this act or omission can be considered as a "negligent" act
or omission was passed upon by the trial court. The findings of said court, affirmed by the
respondent court, which we are not prepared to now disturb, show that the fact of occurrence of
the "vehicular accident" was sufficiently established by the policy report and the testimony of
Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding
circumstances thereof. According to the police report, "the cargo truck was travelling on the right
side of the road going to Manila and then it crossed to the center line and went to the left side of
the highway; it then bumped a tricycle; and then another bicycle; and then said cargo truck
rammed the store warehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the latter did not work due to
mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes
can not be consideration as fortuitous in character. Certainly, the defects were curable and the
accident preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption
of negligence on his part in the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there was negligence on the part of
the petitioner, the petitioner's contention that the respondent court erred in awarding private
respondent actual, moral and exemplary damages as well as attorney's fees and costs, is
untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
 Republic of the Philippines MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST
SUPREME COURT SYMPATHY TO YOU AND MEMBERS OF THE FAMILY.
Manila
MINER & FLORY.5
SECOND DIVISION
The condolence telegram was correctly transmitted as far as the written text was concerned.
G.R. No. 79578             March 13, 1991 However, the condolence message as communicated and delivered to the addressees was
typewritten on a "Happy Birthday" card and placed inside a "Christmasgram" envelope. Believing
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner,  that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner was done
vs. intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of
HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES the private respondents and the addressees, including their friends and relatives, the spouses
TIMAN, respondents. Timan demanded an explanation. Unsatisfied with RCPI's explanations in its letters, dated March
9 and April 20, 1983, the Timans filed a complaint for damages.6
Salalima, Trenas, Pagaoa & Associates for petitioner.
Paul P. Lentejas for private respondents. The parties stipulated at the pre-trial that the issue to be resolved by the trial court was:

SARMIENTO, J.:
A social condolence telegram sent through the facilities of the petitioner gave rise to the present
petition for review on certiorari assailing the decision1 of the respondent Court of Appeals which
affirmed in toto the judgment2 of the trial court, dated February 14, 1985, the dispositive portion of
which reads:
WHETHER or not the act of delivering the condolence message in a Happy Birthday"
card with a "Christmasgram" envelope constitutes a breach of contract on the part of the
defendant. If in the affirmative, whether or not plaintiff is entitled to damages. 7
The trial court rendered judgment in favor of the respondents Timans which was affirmed  in
toto by the Court of Appeals. RCPI now submits the following assignment of errors:

WHEREFORE, premises considered, judgment is hereby rendered: I

1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing
actual and compensatory damages; P10,000.00 as moral damages and P5,000.00 as
exemplary damages.
2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant.
SO ORDERED.3
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL
AND COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05.
II
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL
DAMAGES IN THE AMOUNT OF P10,000.00.

The facts as gleaned from the records of the case are as follows: III

On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY
telegram of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog EXEMPLARY DAMAGES IN THE AMOUNT OF P5,000.00.
City, through petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at
Cubao, Quezon City, to convey their deepest sympathy for the recent death of the mother-in-law IV
of Hilario Midoranda4 to wit:
THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY
MR. & MRS. HILARIO MIDORANDA ATTORNEYS FEES IN THE AMOUNT OF P5,000.00 PLUS COSTS OF SUIT.8
TRINIDAD, CALBAYOG CITY
The four assigned errors are going to be discussed jointly because they are all based on the same
findings of fact.
We fully agree with the appellate court's endorsement of the trial court's conclusion that RCPI, a
corporation dealing in telecommunications and offering its services to the public, is engaged in a
business affected with public interest. As such, it is bound to exercise that degree of diligence
expected of it in the performance of its obligation. 9
One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was
received by the addressees on time despite the fact that there was "error" in the social form and
envelope used.10 RCPI asserts that there was no showing that it has any motive to cause harm or
damage on private respondents:
Petitioner humbly submits that the "error" in the social form used does not come within
the ambit of fraud, malice or bad faith as understood/defined under the law. 11
We do not agree.
In a distinctly similar case,12 and oddly also involving the herein petitioner as the same culprit, we
held:
Petitioner is a domestic corporation engaged in the business of receiving and transmitting
messages. Everytime a person transmits a message through the facilities of the
petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner
undertakes to transmit the message accurately . . . As a corporation, the petitioner can
act only through its employees. Hence the acts of its employees in receiving and
transmitting messages are the acts of the petitioner. To hold that the petitioner is not
liable directly for the acts of its employees in the pursuit of petitioner's business is to
deprive the general public availing of the services of the petitioner of an effective and
adequate remedy.13
Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to
convey a message of sorrow and sympathy. Precisely, it is denominated "telegram of condolence"
because it tenders sympathy and offers to share another's grief. It seems out of this world,
therefore, to place that message of condolence in a birthday card and deliver the same in a
Christmas envelope for such acts of carelessness and incompetence not only render violence to
good taste and common sense, they depict a bizarre presentation of the sender's feelings. They
ridicule the deceased's loved ones and destroy the atmosphere of grief and respect for the
departed.
Anyone who avails of the facilities of a telegram company like RCPI can choose to send his
message in the ordinary form or in a social form. In the ordinary form, the text of the message is
typed on plain newsprint paper. On the other hand, a social telegram is placed in a special form
with the proper decorations and embellishments to suit the occasion and the message and
delivered in an envelope matching the purpose of the occasion and the words and intent of the
message. The sender pays a higher amount for the social telegram than for one in the ordinary
form. It is clear, therefore, that when RCPI typed the private respondents' message of condolence
in a birthday card and delivered the same in a colorful Christmasgram envelope, it committed a
breach of contract as well as gross negligence. Its excuse that it had run out of social condolence
cards and envelopes14 is flimsy and unacceptable. It could not have been faulted had it delivered
the message in the ordinary form and reimbursed the difference in the cost to the private
respondents. But by transmitting it unfittingly—through other special forms clearly, albeit
outwardly, portraying the opposite feelings of joy and happiness and thanksgiving—RCPI only
exacerbated the sorrowful situation of the addressees and the senders. It bears stress that this
botchery exposed not only the petitioner's gross negligence but also its callousness and disregard
for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be
held liable for damages.
It is not surprising that when the Timans' telegraphic message reached their cousin, it became the
joke of the Midorandas' friends, relatives, and associates who thought, and rightly so, that the
unpardonable mix-up was a mockery of the death of the mother-in-law of the senders' cousin.
Thus it was not unexpected that because of this unusual incident, which caused much
embarrassment and distress to respondent Minerva Timan, he suffered nervousness and
hypertension resulting in his confinement for three days starting from April 4, 1983 at the Capitol
Medical Center in Quezon City.15
The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the
fact and amount of damages, but must depend on the actual proof that damages had been
suffered and evidence of the actual amount. 16 In other words, RCPI insists that there is no causal
relation of the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a
question of fact. The findings of fact of the trial court and the respondent court concur in favor of
the private respondents. We are bound by such findings—that is the general rule well-established
by a long line of cases. Nothing has been shown to convince us to justify the relaxation of this rule
in the petitioner's favor. On the contrary, these factual findings are supported by substantial
evidence on record.
Anent the award of moral and exemplary damages assigned as errors, the findings of the
respondent court are persuasive.1âwphi1
. . . When plaintiffs placed an order for transmission of their social condolence telegram,
defendant did not inform the plaintiff of the exhaustion of such social condolence forms.
Defendant-appellant accepted through its authorized agent or agency the order and
received the corresponding compensation therefor. Defendant did not comply with its
contract as intended by the parties and instead of transmitting the condolence message in
an ordinary form, in accordance with its guidelines, placed the condolence message
expressing sadness and sorrow in forms conveying joy and happiness. Under the
circumstances, We cannot accept the defendant's plea of good faith predicated on such
exhaustion of social condolence forms. Gross negligence or carelessness can be
attributed to defendant-appellant in not supplying its various stations with such sufficient
and adequate social condolence forms when it held out to the public sometime in
January, 1983, the availability of such social condolence forms and accepted for a fee the
transmission of messages on said forms. Knowing that there are no such forms as
testified to by its Material Control Manager Mateo Atienza, and entering into a contract for
the transmission of messages in such forms, defendant-appellant committed acts of bad
faith, fraud or malice. . . .17
RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in
character,18 is without merit. We have so held in many cases, and oddly, quite a number of them
likewise involved the herein petitioner as the transgressor.

x x x           x x x          x x x

. . . In contracts and quasi-contracts, exemplary damages may be awarded if the

defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner.1âwphi1 There was gross negligence on the part of RCPI personnel in
transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness
or negligence constitutes wanton misconduct.

x x x           x x x          x x x

. . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of
messages, even though those acts are neither authorized nor ratified (Arkansas & L.R.
Co. vs. Stroude 91 SW 18; West vs. Western U. Tel. Co., 17 P807; Peterson vs. Western
U. Tel. Co., 77 NW 985; Brown vs. Western U. Tel. Co., 6 SE 146). Thus, punitive
damages have been recovered for mistakes in the transmission of telegrams (Pittman vs.
Western Union Tel. Co., 66 SO 977; Painter vs. Western Union Tel. Co., 84 SE 293)
(emphasis supplied).19

We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has
reached this Court in which the petitioner was time and again held liable for the same causes as in
the present case breach of contract and gross negligence—the ineluctable conclusion is that it has
not in any way reformed nor improved its services to the public. It must do so now or else next
time the Court may be constrained to adjudge stricter sanctions.

WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.

Costs against the petitioner.

SO ORDERED.
 THIRD DIVISION
[G.R. Nos. 79050-51. November 14, 1989.]
PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her
personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her
minor children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.
Efren N. Ambrosio & Associates for petitioner PNEI.
Emiliano S. Micu for Respondents.
SYLLABUS
1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. — The
doctrine of last clear chance applies only in a situation where the defendant, having the last fair
chance to avoid the impending harm and failed to do so, becomes liable for all the consequences
of the accident notwithstanding the prior negligence of the plaintiff.
2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In order that the doctrine of
last clear chance may be applied, it must be shown that the person who allegedly had the last
opportunity to avert the accident was aware of the existence of the peril or with exercise of due
care should have been aware of it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY
AVAILABLE MEANS. — This doctrine of last chance has no application to a case where a person
is to act instantaneously, and if the injury cannot be avoided by using all means available after the
peril is or should have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR
A STOP INTERSECTION. — Section 43 (c), Article III, Chapter IV of Republic Act No. 1436
cannot apply to case a bar where at the time of the accident, the jeepney had already crossed the
intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A finding of
negligence on the part of the driver establishes a presumption that the employer has been
negligent and the latter has the burden of proof that it has exercised due negligence not only in the
selection of its employees but also in adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. —
Plaintiff’s failure to present documentary evidence to support their claim for damages for loss of
earning capacity of the deceased victim does not bar recovery of the damages, if such loss may
be based sufficiently on their testimonies.
7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The indemnity for the death of a person was fixed
by this Court at (P30,000.00).
DECISION
CORTES, J.:
In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the
decision of the Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the
Court of First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R
wherein PANTRANCO was ordered to pay damages and attorney’s fees to herein private
respondents.chanrobles virtual lawlibrary
The pertinent fact are as follows:chanrob1es virtual 1aw library
At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa
and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O.
Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their
way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of
Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico,
who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio
Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River. Upon reaching the highway, the jeepney turned right and
proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards
Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila,
encroached on the jeepney’s lane while negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their
children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries.
The jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus,
Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to
the present, Ramirez has never been seen and has apparently remained in hiding.
All the victims and/or their surviving heirs except herein private respondents settled the case
amicably under the "No Fault" insurance coverage of PANTRANCO.
Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her
minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO,
respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of
Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged negligence as the
proximate cause of the accident, invoked the defense of due diligence in the selection and
supervision of its driver, Ambrosio Ramirez.chanroblesvirtualawlibrary
On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the
total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven
(P2,304,647.00) as damages, plus 10% thereof as attorney’s fees and costs to Maricar Baesa in
Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorney’s fees and costs to
Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and the
Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the total
amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos
(P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorney’s fees to
Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos
(P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorney’s fees to Fe Ico and her
children, and to pay the costs in both cases. The dispositive portion of the assailed decision reads
as follows:chanrob1es virtual 1aw library
WHEREFORE, the decision appealed from is hereby modified by ordering the defendant
PANTRANCO North Express, Inc. to pay:chanrob1es virtual 1aw library
I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:chanrob1es
virtual 1aw library
A) As compensatory damages for the death of Ceasar Baesa — P30,000.00;
B) As compensatory damages for the death of Marilyn Baesa — P30,000.00;
C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa —
P30,000.00;
D) For the loss of earnings of Ceasar Baesa — P630,000.00;
E) For the loss of earnings of Marilyn Bascos Baesa — P375,000.00;
F) For the burial expenses of the deceased Ceasar and Marilyn Baesa — P41,200.00;
G) For hospitalization expenses of Maricar Baesa — P3,727.00;
H) As moral damages — P50,000.00;
I) As attorney’s fees — P20,000.00;
II. The plaintiffs in Civil Case No. 589-R, the following damages:chanrob1es virtual 1aw library
A) As compensatory damages for the death of David Ico — P30,000.00;
B) For loss of earning capacity of David Ico — P252,000.00;
C) As moral damages for the death of David Ico and the injury of Fe Ico — P30,000.00
D) As payment for the jeepney — P20,000.00;
E) For the hospitalization of Fe Ico — P12,000.000;
F) And for attorney’s fees — P10,000.00;
and to pay the costs in both cases.
The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the
medical expenses in the sum of P3,273.55, should be deducted from the award in her
favor.chanrobles virtual lawlibrary
All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate
from date of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]
PANTRANCO filed a motion for reconsideration of the Court of Appeal’s decision, but on June 26,
1987, it denied the same for lack of merit. PANTRANCO then filed the instant petition for review.
I
Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance"
against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the
driver of the passenger jeepney who had the last clear chance to avoid the collision and was
therefore negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:chanrob1es virtual 1aw library
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious consequences to claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and failed
to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People’s Lumber and
Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary
care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to
a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a
defense to defeat claim for damages.chanrobles lawlibrary : rednad
To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its
driver was not the proximate cause of the accident and that the sole proximate cause was the
supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is
petitioner’s position that even assuming arguendo, that the bus encroached into the lane of the
jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt shoulder
on his right without danger to himself or his passengers.
The above contention of petitioner is manifestly devoid of merit.
Contrary to the petitioner’s contention, the doctrine of "last clear chance" finds no application in
this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly
had the last opportunity to avert the accident was aware of the existence of the peril or should,
with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or
injury if he does not know or could not have known the existence of the peril. In this case, there is
nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at
a distance that the approaching bus was encroaching on his lane, he did not immediately swerve
the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will
return the bus to its own lane upon seeing the jeepney approaching from the opposite direction.
As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31,
1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the highway is
generally entitled to assume that an approaching vehicle coming towards him on the wrong side,
will return to his proper lane of traffic. There was nothing to indicate to David Ico that the bus could
not return to its own lane or was prevented from returning to the proper lane by anything beyond
the control of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was seated
beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice but to
swerve the steering wheel to the left and encroach on the jeepney’s lane because there was a
steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is belied by the
evidence on record which clearly shows that there was enough space to swerve the bus back to
its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David
Ico must have realized that the bus was not returning to its own lane, it was already too late to
swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus
was running prevented David Ico from swerving the jeepney to the right shoulder of the road in
time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a
few seconds before the actual collision, he had no opportunity to avoid it. This Court has held that
the last clear chance doctrine "can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after
the peril is or should have been discovered" [Ong v. Metropolitan Water District,
supra].chanrobles.com : virtual law library
Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article
III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a
through highway or a stop intersection shall yield the right of way to all vehicles approaching in
either direction on such through highway.
Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this case. The cited law
itself provides that it applies only to vehicles entering a through highway or a stop intersection. At
the time of the accident, the jeepney had already crossed the intersection and was on its way to
Malalam River. Petitioner itself cited Fe Ico’s testimony that the accident occurred after the
jeepney had travelled a distance of about two (2) meters from the point of intersection [Petition p.
10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating
that the jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching
into the lane of the incoming jeepney and in failing to return the bus to its own lane immediately
upon seeing the jeepney coming from the opposite direction was the sole and proximate cause of
the accident without which the collision would not have occurred. There was no supervening or
intervening negligence on the part of the jeepney driver which would have made the prior
negligence of petitioner’s driver a mere remote cause of the accident.
II
On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a
good father of a family to prevent damage, conformably to the last paragraph of Article 2180 of the
Civil Code. Petitioner adduced evidence to show that in hiring its drivers, the latter are required to
have professional driver’s license and police clearance. The drivers must also pass written
examinations, interviews and practical driving tests, and are required to undergo a six-month
training period. Rodrigo San Pedro, petitioner’s Training Coordinator, testified on petitioner’s policy
of conducting regular and continuing training programs and safety seminars for its drivers,
conductors, inspectors and supervisors at a frequency rate of at least two (2) seminars a month.
On this point, the Court quotes with approval the following findings of the trial court which was
adopted by the Court of Appeals in its challenged decision:chanrob1es virtual 1aw library
When an injury is caused by the negligence of an employee, there instantly arises a presumption
that the employer has been negligent either in the selection of his employees or in the supervision
over their acts. Although this presumption is only a disputable presumption which could be
overcome by proof of diligence of a good father of a family, this Court believes that the evidence
submitted by the defendant to show that it exercised the diligence of a good father of a family in
the case of Ramirez, as a company driver is far from sufficient. No support evidence has been
adduced. The professional driver’s license of Ramirez has not been produced. There is no proof
that he is between 25 to 38 years old. There is also no proof as to his educational attainment, his
age, his weight and the fact that he is married or not. Neither are the result of the written test,
psychological and physical test, among other tests, have been submitted in evidence [sic]. His NBI
or police clearances and clearances from previous employment were not marked in evidence. No
evidence was presented that Ramirez actually and really attended the seminars. Vital evidence
should have been the certificate of attendance or certificate of participation or evidence of such
participation like a logbook signed by the trainees when they attended the seminars. If such
records are not available, the testimony of the classmates that Ramirez was their classmate in
said seminar (should have been presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52].chanrobles
law library
Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver
only means that he underwent the same rigid selection process and was subjected to the same
strict supervision imposed by petitioner on all applicants and employees. It is argued by the
petitioner that unless proven otherwise, it is presumed that petitioner observed its usual
recruitment procedure and company polices on safety and efficiency [Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption
of negligence on the part of petitioner and the burden of proving that it exercised due diligence not
only in the selection of its employees but also in adequately supervising their work rests with the
petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-
40570, June 30, 1976, 69 SCRA 623]. Contrary to petitioner’s claim, there is no presumption that
the usual recruitment procedures and safety standards were observed. The mere issuance of
rules and regulations and the formulation of various company policies on safety, without showing
that they are being complied with, are not sufficient to exempt petitioner from liability arising from
the negligence of its employee. It is incumbent upon petitioner to show that in recruiting and
employing the erring driver, the recruitment procedures and company policies on efficiency and
safety were followed. Petitioner failed to do this. Hence, the Court finds no cogent reason to
disturb the finding of both the trial court and the Court of Appeals that the evidence presented by
the petitioner, which consists mainly of the uncorroborated testimony of its Training Coordinator, is
insufficient to overcome the presumption of negligence against petitioner.cralawnad
III
was the company nurse, personnel manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors, together with the uncontradicted
testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for the loss of
earning capacity of David Ico and the spouses Baesa.chanrobles.com:cralaw:red
However, it should be pointed out that the Court of Appeals committed error in fixing the
compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00)
as "compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa." [CA
Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals awarded only Fifteen Thousand
Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and another Fifteen
Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly erroneous. In the
case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126 SCRA 518, the
indemnity for the death of a person was fixed by this Court at Thirty Thousand Pesos
(P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos
(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa
or Thirty Thousand Pesos (P30,000.00) for the death of each brother.
The other items of damages awarded by respondent court which were not challenged by the
petitioner are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent
On the question of damages, petitioner claims that the Court of Appeals erred in fixing the Court of Appeals is hereby AFFIRMED with the modification that the amount of compensatory
damages for the loss of earning capacity of the deceased victims. Petitioner assails respondent damages for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty
court’s findings because no documentary evidence in support thereof, such as income tax returns, Thousand Pesos (P30,000.00) each.chanrobles law library
pay-rolls, pay slips or invoices obtained in the usual course of business, were presented [Petition,
p. 22; Rollo, p. 39]. Petitioner argues that the "bare and self-serving testimonies of the wife of the SO ORDERED.
deceased David Ico and the mother of the deceased Marilyn Baesa . . . have no probative value to
sustain in law the Court of Appeals’ conclusion on the respective earnings of the deceased
victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioner’s contention that the evidence
presented by the private respondent does not meet the requirements of clear and satisfactory
evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of
damages for the loss of earning capacity of the deceased victims. While it is true that private
respondents should have presented documentary evidence to support their claim for damages for
loss of earning capacity of the deceased victims, the absence thereof does not necessarily bar the
recovery of the damages in question. The testimony of Fe Ico and Francisca Bascos as to the
earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient to establish a
basis from which the court can make a fair and reasonable estimate of the damages for the loss of
earning capacity of the three deceased victims. Moreover, in fixing the damages for loss of
earning capacity of a deceased victim, the court can consider the nature of his occupation, his
educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and
was driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty
(30) years old at the time of their death. Ceasar Baesa was a commerce degree holder and the
proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley Times
at Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time of her death,
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 45985 May 18, 1990
CHINA AIR LINES, LTD., petitioner, 
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU, respondents.
G.R. No. 46036 May 18, 1990
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners,  flight and arrived in Taipei around noontime of the said date.
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R. No. 46036.
Syquia Law Offices for Jose Pagsibigan.
REGALADO, J.:
These consolidated petitions seek the review of the decision of respondent court in CA-G.R. No.
53023-R entitled "Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and Roberto
Espiritu, Defendants-Appellants; China Air Lines, Ltd., Defendant-Appellee," 1 the dispositive
portion of which declares:
WHEREFORE, except for a modification of the judgment in the sense that the
award of P20,000.00 in favor of the plaintiff shall be in the concept of nominal
damages instead of exemplary damages, and that defendant China Air Lines,
Ltd. shall likewise be liable with its two co-defendants in a joint and solidary
capacity, the judgment appealed from is hereby affirmed in all other respects,
without costs. 2
The challenged decision of respondent court contains a synthesis of the facts that spawned these
cases and the judgment of the court a quo  which it affirmed with modifications, thus:
On June 4, 1968, plaintiff Jose E. Pagsibigan, then Vice-President and General
Manager of Rentokil (Phils.) Inc., a local firm dealing in insecticides, pesticides
and related services appurtenant thereto, purchased a plane ticket for a Manila-
Taipei-Hongkong-Manila flight from the Transaire Travel Agency. The said
agency, through its Cecille Baron, contacted the Manila Hotel branch of
defendant Philippine Air Lines which at that time was a sales and ticketing agent
of defendant China Air lines. On June 6, 1968, PAL, through its ticketing clerk
defendant Roberto Espiritu, cut and issued PAL Ticket No. 01 7991 for a Manila-
Taipei-Hongkong-Manila flight. According to the plane ticket, the plaintiff was
booked on CAL CI Flight No. 812 to depart from Manila for Taipei on June 10,
1968 at 17:20 hours (5:20 p.m.), Exhibit A.
On June 10, 1968, one hour before the scheduled time of the flight as stated in
his ticket, the plaintiff arrived at the airport to check in for CI Flight No. 812. Upon
arriving at the airport, the plaintiff was informed that the plane he was supposed
to take for Taipei had left at 10:20 in the morning of that day. The PAL
employees at the airport made appropriate arrangements for the plaintiff to take
PAL's flight to Taipei the following day, June 11, 1968. The plaintiff took said
On July 8, 1968, the plaintiff, through counsel, made formal demand on
defendant PAL, for moral damages in not less than P125,000.00 for what the
plaintiff allegedly suffered as a result of his failure to take the flight as stated in
his plane ticket. (Exhibit E) After a series of negotiations among the plaintiff, PAL
and CAL failed to reach an amicable settlement, the plaintiff instituted this action
in the Court of First Instance of Rizal on September 22, 1969. In his complaint,
plaintiff prays for the recovery of P125,000.00 as moral damages and
P25,000.00 for and as attorney's fees. The moral damages allegedly arose from
the gross negligence of defendant Roberto Espiritu in stating on the plane ticket
that the time of departure was 17:20 hours, instead of 10:20 hours which was the
correct time of departure in the revised summer schedule of CAL. Plaintiff claims
that by reason of his failure to take the plane, he suffered besmirched reputation,
embarrassment, mental anguish, wounded feelings and sleepless nights,
inasmuch as when he went to the airport, he was accompanied by his business
associates, close friends and relatives. He further averred that his trip to Taipei
was for the purpose of conferring with a certain Peng Siong Lim, President of the
Union Taiwan Chemical Corporation, scheduled at 9:00 a.m. on June 11, 1968.
Defendant Philippine Air Lines alleged in its answer that the departure time
indicated by Espiritu in the ticket was furnished and confirmed by the reservation
office of defendant China Air Lines. It further averred that CAL had not informed
PAL's Manila Hotel Branch of the revised schedule of its flight, nor provided it
with revised timetable; that when the travel agency sought to purchase the ticket
for the plaintiff on CAL CI Flight No. 812 for June 10, 1968, Espiritu who was
then the ticketing clerk on duty, checked with the reservation office of CAL on the
availability of space, the date and the time of said flight; that CAL's Dory Chan
informed Espiritu that the departure time of Flight No. 812 on June 10, 1968 was
at 5:20 in the afternoon of said date. PAL asserted a cross-claim against CAL for
attorney's fees and for reimbursement of whatever amount the court may
 adjudge PAL to be liable to the plaintiff. Defendant Espiritu adopted the defenses
of his co-defendant PAL.
Defendant China Air Lines, for its part, disclaims liability for the negligence and
incompetence of the employees of PAL. It avers that it had revised its schedule
since April 1, 1968, the same to be effective on April 20, 1968, and the said
revised schedule was adopted only after proper petition with and approval of the
Civil Aeronautics Board of which all airlines, including defendant PAL, were
notified; that both printed copies of the international timetable and of the
mimeographed notices of the official schedule and flight departure schedules
were distributed to all its sales agents, including PAL, that after the effectivity of
the new time schedules, PAL's Manila Hotel office had been issuing and selling
tickets based on the revised time schedule; and that, assuming that the plaintiff is
entitled to recover damages, the liability is on PAL and not on CAL. A cross-claim
was likewise asserted by CAL against its co-defendant PAL.
After due trial, the Court a quo rendered judgment laying the blame for the
erroneous entry in the ticket as to the time of departure to defendant Roberto
Espiritu, ticketing agent of defendant PAL, and that no employee of CAL
contributed to such erroneous entry. It was further ruled that the plaintiff had no
reason to claim moral damages but may be entitled to recover exemplary
damages. The dispositive portion of the decision makes the following
adjudication:
WHEREFORE, premises considered, judgment is hereby
rendered sentencing the defendants Philippine Air Lines, Inc.
and Roberto Espiritu, to pay to plaintiff Jose Pagsibigan jointly
and severally, by way of exemplary damages, the sum of
Twenty Thousand Pesos (P20,000.00) plus Two Thousand
Pesos (P2,000.00) as reimbursement for attorney's fees and the
costs.
The complaint is dismissed with respect to the defendant China
Air Lines, Ltd. The cross-claim filed by defendant PAL and
Espiritu against defendant CAL as well as the cross-claim filed
by the defendant CAL against defendant PAL and Espiritu are
also hereby dismissed. 3
From said decision of the court below, all the parties, except China Air Lines, Ltd. appealed to
respondent court which, however, sustained the ruling of the trial court denying Pagsibigan's claim
for moral damages. It concluded that Roberto Espiritu did not act with malice or in bad faith in
making a wrong entry of the time of departure on the ticket, and that the mistake committed by
Espiritu appears to be an honest one done in good faith.
Respondent court also ruled out the claim for exemplary damages for lack of legal basis.
Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal damages, under
Article 2221 of the Civil Code, for the vindication of a legal wrong committed against him. As
regards the liability of the parties, respondent court held:
There can be little question as to the liability of PAL and Espiritu for the damage
caused to the plaintiff due to the erroneous entry in the plane ticket made by the
latter. They seek to justify the erroneous statement as to the time of departure on
the ground that such was the time given by Dory Chan to Espiritu when the latter
called up for the reservation in favor of plaintiff. Aside from the fact that Dory
Chan had vigorously disclaimed having given such information to Espiritu, We
are convinced that, as the trial court had found, CAL had no share in the error
committed by Espiritu in indicating the time of departure of Flight No. 812. PAL
had shown through the testimony of Carmen Ibazeta Gallaga, ticket
representative of PAL at the Manila Hotel Office, that they received circulars and
timetables of airlines in the PAL main office. It further appears that on two
occasions, defendant PAL cut and issued tickets for CAL based on the new
schedule even before June 10, 1968. As a matter of fact, the other entries of time
departures in the ticket issued to the plaintiff are in accordance with the revised
schedule, and that the only error therein was with respect to the departure from
Manila on June 10, 1968.
However, in proving that the fault lied with Espiritu, defendant CAL derives no
solace nor gains an advantage. It may not claim exemption from liability by
reason thereof. Espiritu was an employee of PAL and whatever negligence was
committed by him is attributable to PAL. It is an admitted fact that PAL is an
authorized agent of CAL. In this relationship, the responsibility of defendant PAL
for the tortious act of its agent or representative is inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our Civil Code in its Art. 2180 . . . . Unlike in
the doctrine of respondeat superior, however, the Civil Code permits the
employer to escape this liability upon proof of having observed all the diligence of
a good father of a family to prevent the damage. We find the evidence of
defendant CAL to be insufficient to overcome the presumption of negligence on
its part for the act done by defendant Roberto Espiritu. (Emphasis supplied)
The liability for the damage sustained by the plaintiff should, therefore, be borne
by all of the defendants in a joint and solidary capacity (Art. 2194). The liability of
an employer under Art. 2180 is primary and direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as employer or principal, did not contribute to
the negligence committed by defendants PAL and Roberto Espiritu, its liability to
the plaintiff could be passed on to said defendants. Defendant CAL, however, did
not take an appeal and did not, therefore, take exception to the dismissal of its
 cross-claim against defendants PAL and Espiritu. This serves as an obstacle for
a rendition of judgment favorable to CAL on its said counterclaim. 4
In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines, Ltd. (CAL)
relied on the following grounds:
1. A principal cannot be held liable, much less solidarily, for the negligence of the
sub-agent, where the former never participated in, ratified or authorized the
latter's act or omission.
2. Dismissal of the cross-claim of petitioner against the private respondents
Philippine Air Lines, Inc. and Roberto Espiritu will not prevent the release of the
petitioner from liability to the private respondent Pagsibigan.
3. The award of damages was unwarranted both legally and factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made the following
submissions in G.R. No. L-46036, to wit:
1. The respondent Court of Appeals erred in not holding that respondent China
Air Lines, Ltd., being the principal, is solely liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding respondent Pagsibigan
the sum of P20,000.00 as nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that CAL's liability is
based on breach of contract of transportation which was the proximate result of the negligence
and/or error committed by PAL and Espiritu; that even assuming that CAL has no share in the
negligence of PAL and Espiritu, the liability of CAL does not cease upon proof that it exercised all
the diligence of a good father of a family in the selection and supervision of its employees.
Traversing such contentions, CAL argues that it can not be made liable under Article 2180 of the
Civil Code because of the absence of employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is liable under
Article 1909 of the said code which holds an agent responsible not only for fraud but also for
negligence which shall be judged with more or less rigor by the courts, according to whether the
agency was or was not for a compensation. PAL, however, maintains that for lack of privity with
Pagsibigan, the suit for breach of contract should have been directed against CAL.
What surfaces as a procedural maneuver taken by respondent Pagsibigan in the course of the
proceedings in these cases has confused the real issues in the controversy subject of both
petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the same time,
that is, to enforce the civil liability of CAL for breach of contract and, likewise, to recover from PAL
and Espiritu for tort or culpa aquiliana. What he has overlooked is the proscription against double
recovery under Article 2177 of the Civil Code which, while not preventing recourse to any
appropriate remedy, prevents double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies, the true nature of the action
instituted by respondent Pagsibigan must be determined. A careful perusal of the complaint of
respondent Pagsibigan will readily disclose that the allegations thereof clearly and unmistakably
make out a case for a quasi-delict in this wise:
4. That at all pertinent times particularly in June of 1968, defendant China Air
Lines Ltd. has been operating regular scheduled flights to and from Manila, and
has offered accommodations thereon through, among others, defendant PAL as
its authorized sales agent and/or ticketing agent, such that China Airlines Ltd. is
here impleaded as being the principal of defendant PAL;
5. That at all pertinent times, particularly in June of 1968, defendant Roberto
Espiritu has been in the employ of defendant PAL at its sales counter at the PAL
Manila Hotel branch office and is here impleaded as defendant as being
the  proximate malfeasor in this cause of action;
xxx xxx xxx
12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10,
1968, as set forth in his ticket (Annex "A") solely and exclusively by reason of
gross incompetence and inexcusable negligence  amounting to bad faith of
defendant PAL — acting, through its sales representative, the defendant Roberto
Espiritu, of its Manila Hotel branch office — in the discharge of its duties as sales
agent and/or ticketing agent for defendant China Airlines Ltd. as principal.
13. That as a direct result of culpable incompetence and negligence  of defendant
Roberto Espiritu as sales representative of defendant PAL, plaintiff was unable to
attend to previously scheduled business commitments in Taipei . . . resulting in
direct and indirect prejudice to plaintiff that has yet to be fully assessed;
(Emphasis supplied) 7
xxx xxx xxx
Had the intention of respondent Pagsibigan been to maintain an action based on breach of
contract of carriage, he could have sued CAL alone considering that PAL is not a real party to the
contract. Moreover, in cases of such nature, the aggrieved party does not have to prove that the
common carrier was at fault or was negligent. All he has to prove is the existence of the contract
and the fact of its non-performance by the carrier. 8
The records disclose that the trial court delved much into the issues of who was at fault, and its
decision is primarily anchored on its factual findings regarding the civil liability arising from  culpa
aquiliana of the erring party, to this effect:
 Plaintiff said that the erroneous entry in his ticket which made it appear that his
CAL flight of June 10, 1968 was to be at 5:20 in the afternoon was due to the
fault or negligence of PAL's Roberto Espiritu, a co-defendant herein, as well as
the employees of the defendant CAL. In making CAL co-responsible, plaintiff
appears to rely on the doctrine that the principal is responsible for the act of an
agent done within the scope of the agency.
There is no proof extant that any of the employees of PAL had contributed to the
erroneous entry in plaintiffs PAL ticket for Taipei which placed his time of
departure to 5:20 o'clock in the afternoon of June 10, 1968. Only defendant
Roberto Espiritu appears to be solely and exclusively responsible for such error
and therefor the conclusion becomes inevitable that CAL must be absolved from
any blame because defendant Roberto Espiritu who committed the error is not an
employee or agent of the defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold
CAL liable on a quasi-delict, decided on appeal to instead make a sinistral detour, so to speak, by
claiming that his action against CAL is based on a breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to
the adverse party who would have no more opportunity to present further evidence, material to the
new theory, which it could have done had it been aware earlier of the new theory at the time of the
hearing before the trial court. 10
There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As
hereinbefore stated, the court a quo absolved CAL of any liability for fault or negligence. This
finding was shared by respondent court when it concluded that defendant CAL did not contribute
to the negligence committed by therein defendants-appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in
the selection and supervision of its employees. This argument is obviously misplaced. CAL is not
the employer of PAL or Espiritu. In Duavit vs.  The Hon. Court of Appeals, et al., 11 we have
stressed the need of first establishing the existence of an employer-employee relationship before
an employer may be vicariously liable under Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely
an agent of CAL and that the suit should have been directed against CAL alone. There is no
question that the contractual relation between both airlines is one of agency. Suffice it to say,
however, that in an action premised on the employee's negligence, whereby respondent
Pagsibigan seeks recovery for the resulting damages from both PAL and Espiritu without
qualification, what is sought to be imposed is the direct and primary liability of PAL as an employer
under said Article 2180.
When an injury is caused by the negligence of an employee, there instantly arises a presumption
of law that there was negligence on the part of the employer either in the selection of the
employee or in the supervision over him after such selection. The presumption, however, may be
rebutted by a clear showing on the part of the employer that it has exercised the care and
diligence of a good father of a family in the selection and supervision of his employee. 12
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that
PAL must adduce sufficient proof that it exercised such degree of care. PAL failed to overcome
the presumption. As found by respondent court, CAL had revised its schedule of flights since April
1, 1968; that after the Civil Aeronautics Board had approved the revised schedule of flights, PAL
was duly informed thereof and, in fact, PAL's Manila Hotel branch office had been issuing and
selling tickets based on the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general proposition, an agent who duly acts as
such is not personally liable to third persons. However, there are admitted exceptions, as in this
case where the agent is being sued for damages arising from a tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in good faith. While
there is no evidence that he acted with malice, we can not entirely condone his actuations. As an
employee of PAL, the nature of his functions requires him to observe for the protection of the
interests of another person that degree of care, precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of
the Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection
and supervision of its employee, it is also primarily liable under Article 2180 of the same code
which explicitly provides that employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.
Under the aforesaid provision, all that is required is that the employee, by his negligence,
committed a quasi-delictwhich caused damage to another, and this suffices to hold the employer
primarily and solidarity responsible for the tortious act of the employee. PAL, however, can
demand from Espiritu reimbursement of the amount which it will have to pay the offended party's
claim. 13
On the issue of damages, we agree, except as to the amount, that nominal damages may be
awarded to respondent Pagsibigan to vindicate the legal wrong committed against him. It
appearing that the wrong committed was immediately rectified when PAL promptly booked him for
the next morning's flight to Taipei where he arrived before noon of June 11, 1968 and was able to
attend his scheduled conference, and considering the concept and purpose of nominal damages,
the award of P20,000.00 must accordingly be reduced to an amount equal or at least
commensurate to the injury sustained.
WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air
Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and Roberto Espiritu are
declared jointly and severally liable to pay the sum of P10,000.00 by way of nominal damages,
without prejudice to the right of Philippine Air Lines, Inc. to recover from Roberto Espiritu
reimbursement of the damages that it may pay respondent Jose Pagsibigan.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 70493 May 18, 1989
GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM
and PAUL ZACARIAS y INFANTE, petitioners,  For failure to file its answer to the third party complaint, third party defendant,
vs.
INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors ROYCE
STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE CORAZON,
JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by their mother,
CECILIA A. VDA. DE CALIBO, respondents.
Rufino Mayor and Isidro M. Ampig for petitioners.
Manuel L. Hontanosas for private respondents.
NARVASA, J.:
There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious
one, is that it is the objective facts established by proofs presented in a controversy that determine
the verdict, not the plight of the persons involved, no matter how deserving of sympathy and
commiseration because, for example, an accident of which they are the innocent victims has
brought them to. reduced circumstances or otherwise tragically altered their lives. The second is
that the doctrine laid done many, many years ago in Picart vs. Smith 1 continues to be good law to
this day.
The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the
Trial Court as follows:2
Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the
jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the
wheel, as it approached from the South Lizada Bridge going towards the
direction of Davao City at about 1:45 in the afternoon of July 4,1979. At about
that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven
by defendant Paul Zacarias y Infants, coming from the opposite direction of
Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At
about 59 yards after crossing the bridge, the cargo truck and the jeep collided as
a consequence of which Engineer Calibo died while Roranes and Patos
sustained physical injuries. Zacarias was unhurt. As a result of the impact, the
left side of the truck was slightly damaged while the left side of the jeep, including
its fender and hood, was extensively damaged. After the impact, the jeep fell and
rested on its right side on the asphalted road a few meters to the rear of the
truck, while the truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the surviving
spouse and children of the late Engineer Calibo who are residents of Tagbilaran
City against the driver and owners of the cargo truck.
which insured the cargo truck involved, was declared in default.
The case filed by the heirs of Engineer Calibo his widow and minor children, private respondents
herein was docketed as
Civil Case No. 3283 of the Court of First Instance of Bohol.  3 Named defendants in the complaint
were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan
People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The defendants' answer
however alleged that the lumber and hardware business was exclusively owned by George Y.
Lim, this being evidenced by the Certificate of Registration issued by the Bureau of Domestic
Trade; Fabio S. Agad was not a co-owner thereof but "merely employed by . . . George Y. Lim as
bookkeeper"; and Felix Lim had no connection whatever with said business, "he being a child only
eight (8) years of age." 5
"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the
Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence
the negligence, and thus the liability, of the defendants." Accordingly, the Court dismissed the
complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed was
third-party complaint presented by the defendants against the insurer of the truck. The
circumstances leading to the Court's conclusion just mentioned, are detailed in the Court's
decision, as follows:
1. Moments before its collission with the truck being operated by Zacarias, the
jeep of the deceased Calibo was "zigzagging." 6
2. Unlike Zacarias who readily submitted himself to investigation by the police,
Calibo's companions, Roranes (an accountant), and Patos, who suffered injuries
on account of the collision, refused to be so investigated or give statements to
the police officers. This, plus Roranes' waiver of the right to institute criminal
proceedings against Zacarias, and the fact that indeed no criminal case was ever
instituted in Court against Zacarias, were "telling indications that they did not
attribute the happening to defendant Zacarias' negligence or fault." 7
 3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as
that of . . . Zacarias," and was "uncertain and even contradicted by the physical
facts and the police investigators Dimaano and Esparcia." 8
4. That there were skid marks left by the truck's tires at the scene, and none by
the jeep, demonstrates that the driver of the truck had applied the brakes and the
jeep's driver had not; and that the jeep had on impact fallen on its right side is
indication that it was running at high speed. Under the circumstances, according
to the Court, given "the curvature of the road and the descending grade of the
jeep's lane, it was negligence on the part of the driver of the jeep, Engr. Calibo,
for not reducing his speed upon sight of the truck and failing to apply the brakes
as he got within collision range with the truck."
5. Even if it be considered that there was some antecedent negligence on the
part of Zacarias shortly before the collision, in that he had caused his truck to run
some 25 centimeters to the left of the center of the road, Engr. Calibo had the
last clear chance of avoiding the accident because he still had ample room in his
own lane to steer clear of the truck, or he could simply have braked to a full stop.
The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs'
appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis
of the following circumstances, to wit:
1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the
collision occurred,' and although Zacarias saw the jeep from a distance of about
150 meters, he "did not drive his truck back to his lane in order to avoid collision
with the oncoming jeep . . .;" 11 what is worse, "the truck driver suddenly applied
his brakes even as he knew that he was still within the lane of the jeep;" 12 had
both vehicles stayed in their respective lanes, the collision would never have
occurred, they would have passed "along side each other safely;" 13
2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the
latter's demand, was the 'driver's license of his co-driver Leonardo Baricuatro;" 14
3) the waiver of the right to file criminal charges against Zacarias should not be
taken against "plaintiffs" Roranes and Patos who had the right, under the law, to
opt merely to bring a civil suit.15
The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence
on the part of his employer, and their liability is both primary and solidary." It therefore ordered "the
defendants jointly and solidarily to indemnify the plaintiffs the following amounts:
(1) P30,000.00 for the death of Orlando Calibo;
(2) P378,000.00 for the loss of earning capacity of the deceased
(3) P15,000.00 for attorney's fees;
(4) Cost of suit. 16
The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this
Court on certiorariand pray for a reversal of the judgment of the Intermediate Appellate Court
which, it is claimed, ignored or ran counter to the established facts. A review of the record
confirms the merit of this assertion and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment,
consequently, will have to be reversed.
The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when
the collision occurred" is a loose one, based on nothing more than the showing that at the time of
the accident, the truck driven by Zacarias had edged over the painted center line of the road into
the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the
uncontradicted evidence, the actual center line of the road was not that indicated by the painted
stripe but, according to measurements made and testified by Patrolman Juanita Dimaano, one of
the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to the
left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the
effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and that of
the truck three (3) meters and three (3) centimeters, measured from the center stripe to the
corresponding side lines or outer edges of the road. 17The total width of the road being, therefore,
six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from both side
lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters
wide. Thus, although it was not disputed that the truck overrode the painted stripe by twenty-five
(25) centimeters, it was still at least eleven (11) centimeters away from its side of the true center
line of the road and well inside its own lane when the accident occurred. By this same reckoning,
since it was unquestionably the jeep that rammed into the stopped truck, it may also be deduced
that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the
truck by at least the same 11-centimeter width of space.
Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably
narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent
road shoulder was also virtually impassable, being about three (3) inches lower than the paved
surface of the road and "soft--not firm enough to offer traction for safe passage — besides which,
it sloped gradually down to a three foot-deep ravine with a river below. 18The truck's lane as
erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance
from the edge of the road and the dangerous shoulder and little room for maneuver, in case this
was made necessary by traffic contingencies or road conditions, if it always kept to said lane. It
being also shown that the accident happened at or near the point of the truck's approach to a
curve,19 which called for extra precautions against driving too near the shoulder, it could hardly be
accounted negligent on the part of its driver to intrude temporarily, and by only as small as a
twenty-five centimeter wide space (less than ten inches), into the opposite lane in order to insure
his vehicle's safety. This, even supposing that said maneuver was in fact an intrusion into the
opposite lane, which was not the case at all as just pointed out.
Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in
applying his brakes instead of getting back inside his lane upon qqqespying the approaching jeep.
Being well within his own lane, as has already been explained, he had no duty to swerve out of the
jeep's way as said Court would have had him do. And even supposing that he was in fact partly
inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters away cannot be
considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep
was "zigzagging"20 and hence no way of telling in which direction it would go as it approached the
truck.
Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report attests to the proven fact that Zacarias
voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had
been renewed just the day before the accident, on July 3, 1979. 21 The Court was apparently
misled by the circumstance that when said driver was first asked to show his license by the
investigators at the scene of the collision, he had first inadvertently produced the license of a
fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.22
The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a few
significant indicators that it was rather Engineer Calibo's negligence that was the proximate cause
of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and later
confirmed in his written statement at the police headquarters 23 that the jeep had been
"zigzagging," which is to say that it was travelling or being driven erratically at the time. The other
investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had
remarked on the jeep's "zigzagging." 24 There is moreover more than a suggestion that Calibo had
been drinking shortly before the accident. The decision of the Trial Court adverts to further
testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was
driving home from when the collision occurred, who, having left ahead of him went to the scene
when they heard about the accident, had said that there had been a drinking spree at the party
and, referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely
translated, "He was advised not to drive, but he insisted.")
It was Calibo whose driver's license could not be found on his person at the scene of the accident,
and was reported by his companions in the jeep as having been lost with his wallet at said scene,
according to the traffic accident report, Exhibit "J". Said license unexplainedly found its way into
the record some two years later.
Reference has already been made to the finding of the Trial Court that while Zacarias readily
submitted to interrogation and gave a detailed statement to the police investigators immediately
after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino
Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together
with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case
against Zacarias. 25
Even, however, ignoring these telltale indicia  of negligence on the part of Calibo, and assuming
some antecedent negligence on the part of Zacarias in failing to keep within his designated lane,
incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate
Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the
latter of any actionable responsibility for the accident under the rule of the last clear chance.
Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a
distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately
thirty kilometers per hour. 26 The private respondents have admitted that the truck was already at a
full stop when the jeep plowed into it. And they have not seen fit to deny or impugn petitioners'
imputation that they also admitted the truck had been brought to a stop while the jeep was still
thirty meters away.27 From these facts the logical conclusion emerges that the driver of the jeep
had what judicial doctrine has appropriately called the last clear chance to avoid the accident,
while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his
jeep away from the truck, either of which he had sufficient time to do while running at a speed of
only thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of
avoidance, not merely rely on a supposed right to expect, as the Appellate Court would have it,
the truck to swerve and leave him a clear path.
The doctrine of the last clear chance provides as valid and complete a defense to accident liability
today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra, which
involved a similar state of facts. Of those facts, which should be familiar to every student of law, it
is only necessary to recall the summary made in the syllabus of this Court's decision that:
(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he
improperly pulled his horse over to the railing on the right. The driver of the
automobile, however guided his car toward the plaintiff without diminution of
speed until he was only few feet away. He then turned to the right but passed so
closely to the horse that the latter being frightened, jumped around and was killed
by the passing car. . . . .
Plaintiff Picart was thrown off his horse and suffered contusions which required several days of
medical attention. He sued the defendant Smith for the value of his animal, medical expenses and
damage to his apparel and obtained judgment from this Court which, while finding that there was
negligence on the part of both parties, held that that of the defendant was the immediate and
determining cause of the accident and that of the plaintiff ". . . the more remote factor in the case":
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.
Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-
petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's additional
defense of due diligence in the selection and supervision of said driver is no longer necessary and
wig not be undertaken. The fact is that there is such evidence in the record which has not been
controverted.

It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in its
appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber and
Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the certificate of
registration issued by the Bureau of Domestic Trade identifying Glan People's Lumber and
Hardware as a business name registered by George Lim, 28 but also unimpugned allegations into
the petitioners' answer to the complaint that Pablo S. Agad was only an employee of George Lim
and that Felix Lim, then a child of only eight (8) years, was in no way connected with the business.

In conclusion, it must also be stated that there is no doubt of this Court's power to review the
assailed decision of the Intermediate Appellate Court under the authority of precedents
recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings of
fact. Many of those exceptions may be cited to support the review here undertaken, but only the
most obvious — that said findings directly conflict with those of the Trial Court — will suffice. 29 In
the opinion of this Court and after a careful review of the record, the evidence singularly fails to
support the findings of the Intermediate Appellate Court which, for all that appears, seem to have
been prompted rather by sympathy for the heirs of the deceased Engineer Calibo than by an
objective appraisal of the proofs and a correct application of the law to the established facts.
Compassion for the plight of those whom an accident has robbed of the love and support of a
husband and father is an entirely natural and understandable sentiment. It should not, however,
be allowed to stand in the way of, much less to influence, a just verdict in a suit at law.

WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby REVERSED,
and the complaint against herein petitioners in Civil Case No. 3283 of the Court of First Instance of
Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89880             February 6, 1991
EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors:
ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE,
Spouses SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and
ENRIQUETA CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-
HIMAYA, and Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREA-
BUSTAMANTE, petitioners,  During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant
vs.
THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO,respondents.
Dolorfino and Dominguez Law Offices for petitioners.
J.C. Baldoz & Associates for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari seeking the reversal of the decision of the respondent
Court of Appeals dated February 15, 1989 which reversed and set aside the decision of the
Regional Trial Court of Cavite, Branch XV ordering the defendants to pay jointly and severally the
plaintiffs indemnity for death and damages; and in further dismissing the complaint insofar as
defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit.
The facts giving rise to the controversy at bar are recounted by the trial court as follows:
At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and
sand truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231
and Plate No. DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left
side portion (barandilla) of the body of the truck sideswiped the left side wall of the
passenger bus, ripping off the said wall from the driver's seat to the last rear seat.
Due to the impact, several passengers of the bus were thrown out and died as a result of
the injuries they sustained, Among those killed were the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of
plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and
5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion
Bersamina. (Rollo, p. 48)
Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in
the name of defendant Novelo but was owned and/or operated as a passenger bus jointly by
defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran,
Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on November 8, 1981,
and which the latter transferred to Serrado (Cerrado) on January 18, 1983.
Immediately before the collision, the cargo truck and the passenger bus were approaching each
other, coming from the opposite directions of the highway. While the truck was still about 30
meters away, Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also
observed that the truck was heading towards his lane. Not minding this circumstance due to his
belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in
order to give more power and speed to the bus, which was ascending the inclined part of the road,
in order to overtake or pass a Kubota hand tractor being pushed by a person along the shoulder of
the highway. While the bus was in the process of overtaking or passing the hand tractor and the
truck was approaching the bus, the two vehicles sideswiped each other at each other's left side.
After the impact, the truck skidded towards the other side of the road and landed on a nearby
residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial court reached the conclusion
"that the negligent acts of both drivers contributed to or combined with each other in directly
causing the accident which led to the death of the aforementioned persons. It could not be
determined from the evidence that it was only the negligent act of one of them which was the
proximate cause of the collision. In view of this, the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on March 7,
1986, the dispositive portion is hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren
Novelo, Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and
severally to the plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00
as indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the
 loss of the earning capacity of the said deceased, at its prevailing rate in pesos at the
time this decision shall have become final and executory; P10,000.00 as moral damages;
and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the
death of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and
P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the
death of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for
the death of their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as
exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as
indemnity for the death of their son, Noel Bersamina, P10,000.00 as moral damages and
P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's
fees and to pay the costs of the suit.
The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and
Serrado, the actual owners and/or operators of the passenger bus concerned, are hereby
ordered to indemnify Novelo in such amount as he may be required to pay as damages to
the plaintiffs.
The cross-claims and counter-claims of the other defendants are hereby dismissed for
lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and
driver, respectively, of the sand and gravel truck have interposed an appeal before the respondent
Court of Appeals. The Court of Appeals decided the appeal on a different light. It rendered
judgment on February 15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the
complaint dismissed insofar as defendants-appellants Federico del Pilar and Edilberto
Montesiano are concerned. No costs in this instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned
Court of Appeals' decision. However, respondent Court of Appeals in a resolution dated August
17, 1989 denied the motion for lack of merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly absolve defendants-
appellants from liability despite its own finding, as well as that of the trial court that
defendant-appellant Edilberto Montesiano, the cargo truck driver, was driving an old
vehicle very fast, with its wheels already wiggling, such that he had no more control of his
truck.
Second. Whether the respondent court can validly and legally disregard the findings of
fact made by the trial court which was in a better position to observe the conduct and
demeanor of the witnesses, particularly appellant Edilberto Montesiano, cargo truck
driver, and which conclusively found appellant Montesiano as jointly and severally
negligent in driving his truck very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally applied the doctrine of "last
clear chance" in the present case despite its own finding that appellant cargo truck driver
Edilberto Montesiano was admittedly negligent in driving his cargo truck very fast on a
descending road and in the presence of the bus driver coming from the opposite direction.
Fourth. Whether the respondent court has applied the correct law and the correct doctrine
so as to reverse and set aside the judgment with respect to defendants-appellants. (Rollo,
pp. 133-134)
As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed
on appeal, provided, they are borne out by the record or are based on substantial evidence
However, this rule admits of certain exceptions, as when the findings of facts are conclusions
without citation of specific evidence on which they are based; or the appellate court's findings are
contrary to those of the trial court. (Sese v. Intermediate Appellate Court, G.R. 66168, 31 July
1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for review on  certiorari under Rule
45 of the Revised Rules of Court. The jurisdiction of the Supreme 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. It is not the function of the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law that might have
been committed. Barring, therefore, a showing that the findings complained of are totally devoid of
support in the records, or that they are so glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand for the Supreme Court is not expected or required to examine
or contrast the oral and documentary evidence submitted by the parties. (Andres v. Manufacturers
Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177 SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary to those of the trial court.
The trial court, in declaring that the negligent acts of both drivers directly caused the accident
which led to the death of the aforementioned persons, considered the following:
It was negligent on the part of driver Montesiano to have driven his truck fast, considering
that it was an old vehicle, being a 1947 model as admitted by its owner, defendant Del
Pilar; that its front wheels were wiggling; that the road was descending; and that there
was a passenger bus approaching it. Likewise, driver Susulin was also guilty of
negligence in not taking the necessary precaution to avoid the collision, in the light of his
admission that, at a distance of 30 meters, he already saw the front wheels of the truck
wiggling and that the vehicle was usurping his lane coming towards his direction. Had he
exercised ordinary prudence, he could have stopped his bus or swerved it to the side of
the road even down to its shoulder. And yet, Susulin shifted to third gear so as to, as
claimed by him, give more power and speed to his bus in overtaking or passing a hand
tractor which was being pushed along the shoulder of the road. (Rollo, p. 50)
The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last
clear chance to avoid the collision and his reckless negligence in proceeding to overtake the hand
tractor was the proximate cause of the collision." (Rollo, p. 95). Said court also noted that "the
record also discloses that the bus driver was not a competent and responsible driver. His driver's
license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket for said
traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984). He also
admitted that he was not a regular driver of the bus that figured in the mishap and was not given
any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held
that "We are not prepared to uphold the trial court's finding that the truck was running fast before
the impact. The national road, from its direction, was descending. Courts can take judicial notice of
the fact that a motor vehicle going down or descending is more liable to get out of control than one
that is going up or ascending for the simple reason that the one which is going down gains added
momentum while that which is going up loses its initial speeding in so doing."
On the other hand, the trial court found and We are convinced that the cargo truck was running
fast. It did not overlook the fact that the road was descending as in fact it mentioned this
circumstance as one of the factors disregarded by the cargo truck driver along with the fact that he
was driving an old 1947 cargo truck whose front wheels are already wiggling and the fact that
there is a passenger bus approaching it. In holding that the driver of the cargo truck was negligent,
the trial court certainly took into account all these factors so it was incorrect for the respondent
court to disturb the factual findings of the trial court, which is in a better position to decide the
question, having heard the witness themselves and observed their deportment.
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is
that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even though a person's
own acts may have placed him in a position of peril, and an injury results, the injured person is
entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a
third person imputed to the opponent is considered in law solely responsible for the consequences
of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the
reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al. (G.R.
Nos. 66102-04, August 30, 1990), the Court citing the landmark decision held in the case of
Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance" applies
"in a suit between the owners and drivers of colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence."
Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint
tortfeasors as a test of whether only one of them should be held liable to the injured person by
reason of his discovery of the latter's peril, and it cannot be invoked as between defendants
concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that
another had negligently failed to take action which could have avoided the injury." (57 Am. Jur. 2d,
pp. 806-807).
All premises considered, the Court is convinced that the respondent Court committed an error of
law in applying the doctrine of last clear chance as between the defendants, since the case at bar
is not a suit between the owners and drivers of the colliding vehicles but a suit brought by the heirs
of the deceased passengers against both owners and drivers of the colliding vehicles. Therefore,
the respondent court erred in absolving the owner and driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the
deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is
REINSTATED with the modification on the indemnity for death of each of the victims which is
hereby increased to P50,000.00 each. No pronouncement as to costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,  deceased, but at four meters away from her he turned back shouting that the
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
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 the res 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 usuallyadopts 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 the emergency 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. on June 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 in constant 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 with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as
damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166). 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
But petitioner assails the CA for having abused its discretion in completely reversing the trial affirm the respondent CA's award for damages and attorney's fees. Pusuant to recent
court's findings of fact, pointing to the testimonies of three of its employees its electrical engineer, jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We
collector-inspector, lineman, and president-manager to the effect that it had exercised the degree increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to
of diligence required of it in keeping its electric lines free from defects that may imperil life and P48,229.45.
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"), The exclusion of moral damages and attorney's fees awarded by the lower court was properly
suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, made by the respondent CA, the charge of malice and bad faith on the part of respondents in
Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what instituting his case being a mere product of wishful thinking and speculation. Award of damages
the defendant's employees were supposed to do, not on what they actually did or failed to do on and attorney's fees is unwarranted where the action was filed in good faith; there should be no
the date in question, and not on the occasion of the emergency situation brought about by the penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's
typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
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 WHEREFORE, the questioned decision of the respondent, except for the slight modification that
of the wounds as described by the witnesses who saw them can lead to no other conclusion than actual damages be increased to P48,229.45 is hereby AFFIRMED.
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).
SO ORDERED.
"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
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21438             September 28, 1966
AIR FRANCE, petitioner,  on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila  1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome,
these various amounts with interest at the legal rate, from the date of the filing of the complaint
until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects",
with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila
for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air
Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of
the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there was a "white man", who,
the Manager alleged, had a "better right" to the seat. When asked to vacate his "first
class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager
that his seat would be taken over his dead body; a commotion ensued, and, according to
said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class;
when they found out that Mr. Carrascoso was having a hot discussion with the white man
[manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give
his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings"  4 of respondent
Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact
then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court
of record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the
case shall state "clearly and distinctly the facts and the law on which it is based";  6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly
raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack.  8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece
of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be
burdened with the obligation "to specify in the sentence the facts" which a party "considered as
proved". 11 This is but a part of the mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion,
may result. So long as the decision of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of
facts with respect to the evidence for the defense". Because as this Court well observed, "There is
no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of
the appellant and the reasons for refusing to believe them is not sufficient to hold the same
contrary to the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence
for the prosecution without taking into consideration or even mentioning the appellant's side in the
controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not
recite in the decision the testimony of each witness for, or each item of evidence presented by, the
defeated party, it does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed,
and that all the matters within an issue in a case were laid before the court and passed upon by
it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of
the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent
and agreement of the parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first class
ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding
that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite"
segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket
was no guarantee that the passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the case of plaintiff he had yet to
make arrangements upon arrival at every station for the necessary first-class reservation.
We are not impressed by such a reasoning. We cannot understand how a reputable firm
like defendant airplane company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in
keeping with the ordinary course of business that the company should know whether or
riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx     xxx     xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject
to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and
"C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid
for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed
by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance
has merged the judgment of the lower court. 24Implicit in that affirmance is a determination by the
Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error
and "all questions raised by the assignments of error and all questions that might have been
raised are to be regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy construction because
nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact
are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals
upon a ground or grounds different from those which were made the basis of the conclusions of
the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document
speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which
the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of
its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that
respondent Carrascoso "surreptitiously took a first class seat to provoke an issue".  29And this
because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to
confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was
he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had
a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is
that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith; 31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract  of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the
defendant, under which said contract, plaintiff was entitled to, as defendant agreed to
furnish plaintiff, First Class passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return
trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant  failed to provide  First Class passage, but instead furnished
plaintiff only Tourist  Class accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the
First Class accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila.32
xxx     xxx     xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff
mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting
in moral damages in the amount of P30,000.00. 33
xxx     xxx     xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff
a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said
contract was breached when petitioner failed to furnish first class transportation at Bangkok;
and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his
first class accommodation berth "after he was already, seated" and to take a seat in the tourist
class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby
causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in
moral damages. It is true that there is no specific mention of the term bad faith in the complaint.
But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties. But the stress of
the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white
man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not
there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in
the complaint, if any, was cured by the evidence. An amendment thereof to conform to the
evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane
belonging to the defendant Air France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has been sufficiently established by
plaintiff in his testimony before the court, corroborated by the corresponding entry made
by the purser of the plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger.
The captain of the plane who was asked by the manager of defendant company at
Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of
defendant ever contradicted or denied this evidence for the plaintiff. It could have been
easy for defendant to present its manager at Bangkok to testify at the trial of the case, or
yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white
man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him
when all the seats had already been taken, surely the plaintiff should not have been
picked out as the one to suffer the consequences and to be subjected to the humiliation
and indignity of being ejected from his seat in the presence of others. Instead of
explaining to the white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief that this probably was
what happened there, by the testimony of defendant's witness Rafael Altonaga who,
when asked to explain the meaning of the letters "O.K." appearing on the tickets of
plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino,
another witness for defendant, who was the chief of the Reservation Office of defendant,
testified as follows:
 "Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a
"better right" to the seat occupied by Mr. Carrascoso? The record is silent. The
defendant airline did not prove "any better", nay, any right on the part of the
"white man" to the "First class" seat that the plaintiff was occupying and for which
he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be adverse if produced
[Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is
constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the
plane if he did not give up his "first class" seat because the said Manager wanted
to accommodate, using the words of the witness Ernesto G. Cuento, the "white
man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed
did not use the term "bad faith". But can it be doubted that the recital of facts therein
points to bad faith? The manager not only prevented Carrascoso from enjoying his right to
a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his
seat, made him suffer the humiliation of having to go to the tourist class compartment -
just to give way to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively
operating with furtive design or with some motive of self-interest or will or for ulterior
purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith  in the
judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with
plaintiff in bad faith, with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of threatening the plaintiff in the presence
of many passengers to have him thrown out of the airplane to give the "first
class" seat that he was occupying to, again using the words of the witness
Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any
"better right" to occupy the "first class" seat that the plaintiff was occupying, duly
paid for, and for which the corresponding "first class" ticket was issued by the
defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is
well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer,
must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts and
advantages it offers. The contract of air carriage, therefore, generates a relation attended with a
public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an
action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to
be protected against personal misconduct, injurious language, indignities and abuses from such
employees. So it is, that any rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act
that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a
railroad train, when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was nothing in the conduct of
the passenger which justified the conductor in using insulting language to him, as by calling him a
lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental
suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
 Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the
flight attendants approached me and requested from me my ticket and I said, What for?
and she said, "We will note that you transferred to the tourist class". I said, "Nothing of
that kind. That is tantamount to accepting my transfer." And I also said, "You are not
going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have
enough leg room, I stood up and I went to the pantry that was next to me and the purser
was there. He told me, "I have recorded the incident in my notebook." He read it and
translated it to me — because it was recorded in French — "First class passenger was
forced to go to the tourist class against his will, and that the captain refused to intervene."
Mr. VALTE —
were really true that no such entry was made, the deposition of the purser could have cleared up
the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner."  53 The
manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept.
And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is
but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the
tradition that discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest
that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57

I move to strike out the last part of the testimony of the witness because the best On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
evidence would be the notes. Your Honor. error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the proscription of the best evidence rule.
Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of
the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they
grow "out of the nervous excitement and mental and physical condition of the declarant".  51 The
utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes
the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24837           June 27, 1968
JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,  letter on April 19, 1963, claiming that his name was not included in the Writ of Execution
vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as President
of the said Bank, defendants.
Gil B. Galang for plaintiffs.
Aviado and Aranda for defendants.
CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of the Court
of First Instance of Manila dismissing their complaint against defendants herein, the Bank of the
Philippine Islands and Santiago Freixas.
It appears that Singson, was one of the defendants in civil case No. 23906 of the Court of First
Instance, Manila, in which judgment had been rendered sentencing him and his co-defendants
therein, namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of P105,539.56 to the
plaintiff therein, Philippine Milling Co. Singson and Lobregat had seasonably appealed from said
judgment, but not Villa-Abrille & Co., as against which said judgment, accordingly, became final
and executory. In due course, a writ of garnishment was subsequently served upon the Bank of
the Philippine Islands — in which the Singsons had a current account — insofar as Villa-Abrille's
credits against the Bank were concerned. What happened thereafter is set forth in the decision
appealed from, from which we quote:
Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters
of execution and garnishment, upon reading the name of the plaintiff herein in the title of
the Writ of Garnishment as a party defendants, without further reading the body of the
said garnishment and informing himself that said garnishment was merely intended for
the deposits of defendant Villa-Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille
and Joaquin Bona, prepared a letter for the signature of the President of the Bank
informing the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff
in that case. Another letter was also prepared and signed by the said President of the
Bank for the Special Sheriff dated April 17, 1963.
Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount of
P383 in favor of B. M. Glass Service dated April 16, 1963 and bearing No. C-424852, and
check No. C-394996 for the amount of P100 in favor of the Lega Corporation, and drawn
against the said Bank, were deposited by the said drawers with the said bank. Believing
that the plaintiff Singson, the drawer of the check, had no more control over the balance
of his deposits in the said bank, the checks were dishonored and were refused payment
by the said bank. After the first check was returned by the bank to the B. M. Glass
Service, the latter wrote plaintiff Julian C. Singson a letter, dated April 19, 1963, advising
him that his check for P383.00 bearing No. C-424852 was not honored by the bank for
the reason that his account therein had already been garnished. The said B. M. Glass
Service further stated in the said letter that they were constrained to close his credit
account with them. In view thereof, plaintiff Julian C. Singson wrote the defendant bank a
and Notice of Garnishment, which was served upon the bank. The defendant President
Santiago Freixas of the said bank took steps to verify this information and after having
confirmed the same, apologized to the plaintiff Julian C. Singson and wrote him a letter
dated April 22, 1963, requesting him to disregard their letter of April 17, 1963, and that the
action of garnishment from his account had already been removed. A similar letter was
written by the said official of the bank on April 22, 1963 to the Special Sheriff informing
him that his letter dated April 17, 1963 to the said Special Sheriff was considered
cancelled and that they had already removed the Notice of Garnishment from plaintiff
Singson's account. Thus, the defendants lost no time to rectify the mistake that had been
inadvertently committed, resulting in the temporary freezing of the account of the plaintiff
with the said bank for a short time.
xxx     xxx     xxx
On May 8, 1963, the Singsong commenced the present action against the Bank and its president,
Santiago Freixas, for damages1 in consequence of said illegal freezing of plaintiffs'
account.1äwphï1.ñët
After appropriate proceedings, the Court of First Instance of Manila rendered judgment dismissing
the complaint upon the ground that plaintiffs cannot recover from the defendants upon the basis of
a quasi-delict, because the relation between the parties is contractual in nature; because this case
does not fall under Article 2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs
have not established the amount of damages allegedly sustained by them.
The lower court held that plaintiffs' claim for damages cannot be based upon a tort or quasi-delict,
their relation with the defendants being contractual in nature. We have repeatedly held, however,
that the existence of a contract between the parties does not bar the commission of a tort by the
one against the order and the consequent recovery of damages therefor. 2 Indeed, this view has
been, in effect, reiterated in a comparatively recent case. Thus, in Air France vs.
Carrascoso,3 involving an airplane passenger who, despite his first-class ticket, had been illegally
ousted from his first-class accommodation and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the air-carrier, upon the ground of tort on
the latter's part, for, although the relation between a passenger and a carrier is "contractual both in
origin and nature ... the act that breaks the contract may also be a tort".
In view, however, of the facts obtaining in the case at bar, and considering, particularly, the
circumstance, that the wrong done to the plaintiff was remedied as soon as the President of the
bank realized the mistake he and his subordinate employee had committed, the Court finds that
an award of nominal damages — the amount of which need not be proven 4 — in the sum of
P1,000, in addition to attorney's fees in the sum of P500, would suffice to vindicate plaintiff's
rights.5

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall be entered
sentencing the defendant Bank of the Philippine Islands to pay to the plaintiffs said sums of
P1,000, as nominal damages, and P500, as attorney's fees, apart from the costs. It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7664             August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,  compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death
of their son Dominador Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers
that his death was caused by his own negligence or by unavoidable accident. Defendant also
avers that it had exercised due diligence in the selection of, and supervision over, its employees
and that it had observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the
complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to this
Court because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and
P0.20 for children is charged. The main pool it between two small pools of oval shape known as
the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the
depths of the water at different parts are indicated by appropriate marks on the wall. The care and
supervision of the pools and the users thereof is entrusted to a recreational section composed of
Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-
saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its
patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the
benefit of the patrons. Defendant has also on display in a conspicuous place certain rules and
regulations governing the use of the pools, one of which prohibits the swimming in the pool alone
or without any attendant. Although defendant does not maintain a full-time physician in the
swimming pool compound, it has however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room
in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to
the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left
the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about
twenty bathers inside the pool area and Manuel Abaño was going around the pools to observe the
bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name
of Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another
boy informed lifeguard Manuel Abaño of the same happening and Abaño immediately jumped into
the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the
bottom. The body was placed at the edge of the pool and Abaño immediately applied manual
artificial respiration. Soon after, male nurse Armando Rule came to render assistance, followed by
sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by one of the
security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon
arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order
to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the
artificial manual respiration, and when this failed to revive him, they applied the resuscitator until
the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another
resuscitator, but the same became of no use because he found the boy already dead. The doctor
ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police
Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave
written statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique
V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the
body of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the
right forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with
petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was
soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral
organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to
the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code.
The first article provides that "whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damages done." Such fault or negligence is called
quasi-delict. Under the second article, this obligation is demandable not only for one's own acts or
omissions but also for those of persons for whom one is responsible. In addition, we may quote
the following authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which people generally are expressly
or by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably
safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack
of ordinary care in providing for his safety, without the fault of the patron, he is not,
however, in any sense deemed to be the insurer of the safety of patrons. And the death of
a patron within his premises does not cast upon him the burden of excusing himself from
any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635;
Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare,
supra, it was held that there could be no recovery for the death by drowning of a fifteen-
year boy in defendant's natatorium, where it appeared merely that he was lastly seen
alive in water at the shallow end of the pool, and some ten or fifteen minutes later was
discovered unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to
resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is
caused by the fault or negligence of the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The
question then that arises is: Have appellants established by sufficient evidence the existence of
fault or negligence on the part of appellee so as to render it liable for damages for the death of
Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and
competent employees who may render help at a moment's notice, and they ascribed such
negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was
not available or was attending to something else with the result that his help came late. Thus,
appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately
respond to the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the water. This
negligence of Abaño, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is
belied by the written statements given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the happening of the accident. Thus,
these two boys admitted in the investigation that they narrated in their statements everything they
knew of the accident, but, as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a
comic magazine when the alarm was given for which reason he failed to immediately respond to
the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the
lifeguard heard the shouts for help, the latter immediately dived into the pool  to retrieve the person
under water who turned out to be his brother. For this reason, the trial court made this conclusion:
"The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard
Abaño to immediately respond to their call may therefore be disregarded because they are belied
by their written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is
painted with black colors so as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged
in such a way as to have two guards at a time on duty to look after the safety of the bathers. There
is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there
are security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the
pool, the employees of appellee did everything possible to bring him back to life. Thus, after he
was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial
respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado
Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy
was abnormal, the inspector immediately injected him with camphorated oil. When the manual
artificial respiration proved ineffective they applied the oxygen resuscitator until its contents were
exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the
University of the Philippines who however came late because upon examining the body he found
him to be already dead. All of the foregoing shows that appellee has done what is humanly
possible under the circumstances to restore life to minor Ong and for that reason it is unfair to hold
it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last
clear chance" for the reason that, having the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor
Ong came into the big swimming pool. The only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)
 It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in 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 a person who has the last clear 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. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that
he went there without any companion in violation of one of the regulations of appellee as regards
the use of the pools, and it appearing that lifeguard Aba_¤_o responded to the call for help as
soon as his attention was called to it and immediately after retrieving the body all efforts at the
disposal of appellee had been put into play in order to bring him back to life, it is clear that there is
no room for the application of the doctrine now invoked by appellants to impute liability to
appellee..

The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at
hand after the peril is or should have been discovered; at least in cases in which any
previous negligence of the party charged cannot be said to have contributed to the
injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest,
Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find
supported by the evidence: "There is (also) a strong suggestion coming from the expert evidence
presented by both parties that Dominador Ong might have dived where the water was only 5.5
feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the
pool, as a consequence of which he was stunned, and which to his drowning. As a boy scout he
must have received instructions in swimming. He knew, or have known that it was dangerous for
him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12986             March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants, 
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in
the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of
Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank
truck into the underground storage, right at the opening of the receiving tank where the nozzle of
the hose was inserted. The fire spread to and burned several neighboring houses, including the
personal properties and effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and
the second as its agent in charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro
Flores was transferring gasoline from a tank truck, plate No. T-5292 into the
underground tank of the Caltex Gasoline Station located at the corner of Rizal
Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and
threw the burning match stick near the main valve of the said underground tank.
Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores
in pulling off the gasoline hose connecting the truck with the underground tank
prevented a terrific explosion. However, the flames scattered due to the hose
from which the gasoline was spouting. It burned the truck and the following
accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this Office a
copy of a photograph taken during the fire and which is submitted herewith. it appears in
this picture that there are in the premises a coca-cola cooler and a rack which according
to information gathered in the neighborhood contained cigarettes and matches, installed
between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding
the history of the gasoline station and what the chief of the fire department had told him on the
same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with respect
to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for
Salvador Capacillo," the latter was presented as witness but respondents waived their right to
cross-examine him although they had the opportunity to do so; and thirdly, that in any event the
said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now
Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September 17,
1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were objected
to by counsel for each of respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and
X-6 were admitted without objection; the admission of the others, including the disputed ones,
carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location of the
fire and, if possible, gather witnesses as to the occurrence, and that he brought the report with
him. There was nothing, therefore, on which he need be cross-examined; and the contents of the
report, as to which he did not testify, did not thereby become competent evidence. And even if he
had testified, his testimony would still have been objectionable as far as information gathered by
him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that
"entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are  prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was
made by a public officer, or by another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or other person had
sufficient knowledge of the facts by him stated, which must have been acquired by him personally
or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material
facts recited in the reports as to the cause and circumstances of the fire were not within the
personal knowledge of the officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? As to some facts the sources thereof are
not even identified. Others are attributed to Leopoldo Medina, referred to as an employee at the
gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline
was being transferred at the time to the underground tank of the station; and to respondent Mateo
Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire.
To qualify their statements as "official information" acquired by the officers who prepared the
reports, the persons who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for record. 1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein
were not acquired by the reporting officers through official information, not having been given by
the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the
doctrine of res ipsa loquitur  should apply so as to presume negligence on the part of appellees.
Both the trial court and the appellate court refused to apply the doctrine in the instant case on the
grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing definite," and
that while the rules do not prohibit its adoption in appropriate cases, "in the case at bar, however,
we find no practical use for such doctrine." The question deserves more than such summary
dismissal. The doctrine has actually been applied in this jurisdiction, in the case of  Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the
decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna,
with clear weather and without any wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and Development Co., Inc. alongside
the road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he
was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts
carried by the wire and was knocked unconscious to the ground. The electric charge
coursed through his body and caused extensive and serious multiple burns from skull to
legs, leaving the bone exposed in some parts and causing intense pain and wounds that
were not completely healed when the case was tried on June 18, 1947, over one year
after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine of  res
ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant
on its defense. While it is the rule, as contended by the appellant, that in case of
noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to
establish that the proximate cause of his injury was the negligence of the defendant, it is
also a recognized principal that "where the thing which caused injury, without fault of the
injured person, is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from
defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care
and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.)
This rule is known by the name of res ipsa loquitur (the transaction speaks for itself), and
is peculiarly applicable to the case at bar, where it is unquestioned that the plaintiff had
every right to be on the highway, and the electric wire was under the sole control of
defendant company. In the ordinary course of events, electric wires do not part suddenly
in fair weather and injure people, unless they are subjected to unusual strain and stress
or there are defects in their installation, maintenance and supervision; just as barrels do
not ordinarily roll out of the warehouse windows to injure passersby, unless some one
was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case
that established that rule). Consequently, in the absence of contributory negligence
(which is admittedly not present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care and maintenance.
Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of  res
ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale
of which extreme care must be taken. On the other hand, fire is not considered a fortuitous event,
as it arises almost invariably from some act of man. A case strikingly similar to the one before Us
is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934
was leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8,
1934, during the term of the lease, while gasoline was being transferred from the tank
wagon, also operated by the Shell Petroleum Corporation, to the underground tank of the
 station, a fire started with resulting damages to the building owned by Jones. Alleging that
the damages to his building amounted to $516.95, Jones sued the Shell Petroleum
Corporation for the recovery of that amount. The judge of the district court, after hearing
the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in
his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on
the ground the testimony failed to show with reasonable certainty any negligence on the
part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied
to this Court for a Writ of Review which was granted, and the case is now before us for
decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence — one relating to the cause
of the fire and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the control
of the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
attached to the filling station while it was being filled from the tank truck and while both
the tank and the truck were in charge of and being operated by the agents or employees
of the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to
explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may
be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by defendant, that the
accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by
the courts of last resort. Some of the cases in this jurisdiction in which the doctrine has
been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.
St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115
La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline
station, with all its appliances, equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring houses. The persons who knew or
could have known how the fire started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1
Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained
of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district near the Obrero Market, a
railroad crossing and very thickly populated neighborhood where a great number of
people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls
south and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot
avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also
used by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or
more, adding another risk to the possible outbreak of fire at this already small but
crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on
the basis of his own personal observation of the facts reported, may properly be considered as an
exception to the hearsay rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent
measures of caution than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone
and without assistance, was transferring the contents thereof into the underground storage when
the fire broke out. He said: "Before loading the underground tank there were no people, but while
the loading was going on, there were people who went to drink coca-cola (at the coca-cola stand)
which is about a meter from the hole leading to the underground tank." He added that when the
tank was almost filled he went to the tank truck to close the valve, and while he had his back
turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a concrete
wall high enough to prevent the flames from leaping over it. As it was the concrete wall was only
2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense heat. Defendants' negligence,
therefore, was not only with respect to the cause of the fire but also with respect to the spread
thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended
complaint that "the fire was caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced, but assuming the
allegation to be true — certainly any unfavorable inference from the admission may be taken
against Boquiren — it does not extenuate his negligence. A decision of the Supreme Court of
Texas, upon facts analogous to those of the present case, states the rule which we find
acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger involved ...
we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to bring about harm to another, the fact that
the active and substantially simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the
actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way,
"The intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly and proximately cooperates with the
independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W.
2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This
issue depends on whether Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of
law and hence may be passed upon by this Court. These facts are: (1) Boquiren made an
admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline
station and all the equipment therein; (3) Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used in delivering gasoline to the station had the
name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name
of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit
X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one
of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if
one there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc.
and/or the owners of the gasoline station." It is true that Boquiren later on amended his answer,
and that among the changes was one to the effect that he was not acting as agent of Caltex. But
then again, in his motion to dismiss appellants' second amended complaint the ground alleged
was that it stated no cause of action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this
ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that
the business conducted at the service station in question was owned and operated by Boquiren.
But Caltex did not present any contract with Boquiren that would reveal the nature of their
relationship at the time of the fire. There must have been one in existence at that time. Instead,
what was presented was a license agreement manifestly tailored for purposes of this case, since it
was entered into shortly before the expiration of the one-year period it was intended to operate.
This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but
made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948.
This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with respect to the fire, as shown by the clause that
Caltex "shall not be liable for any injury to person or property while in the property herein licensed,
it being understood and agreed that LICENSEE (Boquiren) is not an employee, representative or
agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum
of P1.00 for the use of the premises and all the equipment therein. He could sell only Caltex
Products. Maintenance of the station and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or transfer his rights as licensee without the
consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December
31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could
at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products,
or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the
contract show the extent of the control of Caltex over Boquiren. The control was such that the
latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and
the latter could remove him or terminate his services at will; that the service station
belonged to the company and bore its tradename and the operator sold only the products
of the company; that the equipment used by the operator belonged to the company and
were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that
the receipts signed by the operator indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the company and not an independent
contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what
they really had intended to enter into, but the way the contracting parties do or perform
their respective obligations stipulated or agreed upon may be shown and inquired into,
and should such performance conflict with the name or title given the contract by the
 parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held liable for the negligence
of those performing service under its direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash
invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither was
there a sales contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the
subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on this point at that time, the amount that
should be recovered be measured by the damages actually suffered, otherwise the principle
prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said
property was worth P4,000.00. We agree that the court erred, since it is of common knowledge
that the assessment for taxation purposes is not an accurate gauge of fair market value, and in
this case should not prevail over positive evidence of such value. The heirs of Ong are therefore
entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00,
respectively, with interest from the filing of the complaint, and costs.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-52732 August 29, 1988
F.F. CRUZ and CO., INC., petitioner,  from the date of the filing of the Complaint on January 23, 1975, until fully paid;
vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE
MABLE and children DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME,
ANTONIO, and BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.
CORTES, J.:
This petition to review the decision of the Court of Appeals puts in issue the application of the
common law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the
residence of private respondents. Sometime in August 1971, private respondent Gregorio Mable
first approached Eric Cruz, petitioner's plant manager, to request that a firewall be constructed
between the shop and private respondents' residence. The request was repeated several times
but they fell on deaf ears. In the early morning of September 6, 1974, fire broke out in petitioner's
shop. Petitioner's employees, who slept in the shop premises, tried to put out the fire, but their
efforts proved futile. The fire spread to private respondents' house. Both the shop and the house
were razed to the ground. The cause of the conflagration was never discovered. The National
Bureau of Investigation found specimens from the burned structures negative for the presence of
inflammable substances.
Subsequently, private respondents collected P35,000.00 on the insurance on their house and the
contents thereof.
On January 23, 1975, private respondents filed an action for damages against petitioner, praying
for a judgment in their favor awarding P150,000.00 as actual damages, P50,000.00 as moral
damages, P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and costs. The
Court of First Instance held for private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and
against the defendant:
1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for
damages suffered by said plaintiffs for the loss of their house, with interest of 6%
2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the
loss of plaintiffs' furnitures, religious images, silverwares, chinawares, jewelries,
books, kitchen utensils, clothing and other valuables, with interest of 6% from
date of the filing of the Complaint on January 23, 1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral
damages, P2,000.00 as exemplary damages, and P5,000.00 as and by way of
attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2;
Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed. The
damages to be awarded to plaintiff should be reduced to P70,000.00 for the
house and P50,000.00 for the furniture and other fixtures with legal interest from
the date of the filing of the complaint until full payment thereof. [CA Decision, p.
7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated
February 18, 1980. Hence, petitioner filed the instant petition for review on February 22, 1980.
After the comment and reply were filed, the Court resolved to deny the petition for lack of merit on
June 11, 1980.
However, petitioner filed a motion for reconsideration, which was granted, and the petition was
given due course on September 12, 1980. After the parties filed their memoranda, the case was
submitted for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance
on their house, from the award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.
The pivotal issue in this case is the applicability of the common law doctrine of  res ipsa
loquitur, the issue of damages being merely consequential. In view thereof, the errors assigned by
petitioner shall be discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may
be stated as follows:
Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of care. [Africa v.
Caltex (Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank
truck was being unloaded into an underground storage tank through a hose and the fire spread to
and burned neighboring houses, this Court, applying the doctrine of res ipsa loquitur, adjudged
Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine, considering that in the normal
course of operations of a furniture manufacturing shop, combustible material such as wood chips,
sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon.
It must also be noted that negligence or want of care on the part of petitioner or its employees was
not merely presumed. The Court of Appeals found that petitioner failed to construct a firewall
between its shop and the residence of private respondents as required by a city ordinance; that
the fire could have been caused by a heated motor or a lit cigarette; that gasoline and alcohol
were used and stored in the shop; and that workers sometimes smoked inside the shop [CA
Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in
accordance with city ordinances would suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the neighboring houses
were it not for another negligent omission on the part of defendants, namely, their
failure to provide a concrete wall high enough to prevent the flames from leaping
over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that
height it consisted merely of galvanized iron sheets, which would predictably
crumble and melt when subjected to intense heat. Defendant's negligence,
therefore, was not only with respect to the cause of the fire but also with respect
to the spread thereof to the neighboring houses.[Africa v. Caltex (Phil.), Inc.,
supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of negligence since it had
failed to construct a firewall between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance
providing for safety regulations had been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss
sustained by private respondents.
2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such
finding by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc.
v. Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so when there is
no showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of
private respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00).
With regard to the house, the Court of Appeals reduced the award to P70,000.00 from
P80,000.00. Such cannot be categorized as arbitrary considering that the evidence shows that the
house was built in 1951 for P40,000.00 and, according to private respondents, its reconstruction
would cost P246,000.00. Considering the appreciation in value of real estate and the diminution of
the real value of the peso, the valuation of the house at P70,000.00 at the time it was razed
cannot be said to be excessive.
3. While this Court finds that petitioner is liable for damages to private respondents as found by
the Court of Appeals, the fact that private respondents have been indemnified by their insurer in
the amount of P35,000.00 for the damage caused to their house and its contents has not escaped
the attention of the Court. Hence, the Court holds that in accordance with Article 2207 of the Civil
Code the amount of P35,000.00 should be deducted from the amount awarded as damages. Said
article provides:
Art. 2207. If the plaintiffs property has been insured, and he has received
indemnity from the insurance company for the injury or loss arising out of the
wrong or breach of contract complained of, the insurance company is subrogated
to the rights of the insured against the wrongdoer or the person who violated the
contract. If the amount paid by the insurance company does not fully cover the
injury or loss, the aggrieved party shall be entitled to recover the deficiency from
the person causing the loss or injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified by their insurer, private
respondents are only entitled to recover the deficiency from petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it
indemnified private respondents from petitioner. This is the essence of its right to be subrogated to
the rights of the insured, as expressly provided in Article 2207. Upon payment of the loss incurred
by the insured, the insurer is entitled to be subrogated pro tanto to any right of action which the
insured may have against the third person whose negligence or wrongful act caused the loss
[Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA
323.]

Under Article 2207, the real party in interest with regard to the indemnity received by the insured is
the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the
insurer should exercise the rights of the insured to which it had been subrogated lies solely within
the former's sound discretion. Since the insurer is not a party to the case, its identity is not of
record and no claim is made on its behalf, the private respondent's insurer has to claim his right to
reimbursement of the P35,000.00 paid to the insured.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED
with the following modifications as to the damages awarded for the loss of private respondents'
house, considering their receipt of P35,000.00 from their insurer: (1) the damages awarded for the
loss of the house is reduced to P35,000.00; and (2) the right of the insurer to subrogation and thus
seek reimbursement from petitioner for the P35,000.00 it had paid private respondents is
recognized.

SO ORDERED.