G.R. No.
L-12219            March 15, 1918 defendant quickly turned his car sufficiently to the right to escape hitting the
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant. From a judgment of the
Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of
about ten or twelve miles per hour. As the defendant neared the bridge he
saw a horseman on it and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before
him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing on
the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get
over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road for
the machine. In so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited fright, and the rider
had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some
distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the
horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the
railing. In so doing, it as struck on the hock of the left hind leg by the flange of
the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that
when the accident occurred the free space where the pony stood between
the automobile and the railing of the bridge was probably less than one and
one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required
medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and the rider would pass over to
the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a
moment have perceived that it was too late for the horse to cross with safety
in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being run
down by going to a place of greater safety. The control of the situation had
then passed entirely to the defendant; and it was his duty either to bring his
car to an immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the horse to
avoid the danger of collision. Instead of doing this, the defendant ran straight
on until he was almost upon the horse. He was, we think, deceived into doing
this by the fact that the horse had not yet exhibited fright. But in view of the
known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion, negligent
in the eye of the law.
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the
1
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human
experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is
this: Conduct is said to be negligent when a prudent man in the position of
the tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence
of that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of
the road. But as we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts
of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of the other
party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be mentioned in this connection. This Court there
held that while contributory negligence on the part of the person injured did
not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the
other party. The defendant company had there employed the plaintiff, as a
laborer, to assist in transporting iron rails from a barge in Manila harbor to the
company's yards located not far away. The rails were conveyed upon cars
which were hauled along a narrow track. At certain spot near the water's
edge the track gave way by reason of the combined effect of the weight of
the car and the insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon
which had dislodged one of the supports of the track. The court found that
the defendant company was negligent in having failed to repair the bed of the
track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff
by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of
the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous condition of its track.
In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not
feel constrained to attempt to weigh the negligence of the respective parties
in order to apportion the damage according to the degree of their relative
fault. It is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the
action had been previously adjudicated in the court of a justice of the peace.
In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a
criminal prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point upon which
it is unnecessary to express an opinion -- the action of the justice of the
peace in dismissing the criminal proceeding upon the preliminary hearing can
2
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.

3
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL,
petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO,
respondents.
FELICIANO, J:
In the early morning of 15 November 1975 — at about 1:30 a.m. — private
respondent Leonardo Dionisio was on his way home — he lived in 1214-B
Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting with
his boss, the general manager of a marketing corporation. During the
cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor.
Dionisio was driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets at Bangkal,
Makati, not far from his home, and was proceeding down General Lacuna
Street, when his car headlights (in his allegation) suddenly failed. He
switched his headlights on "bright" and thereupon he saw a Ford dump truck
looming some 2-1/2 meters away from his car. The dump truck, owned by
and registered in the name of petitioner Phoenix Construction Inc.
("Phoenix"), was parked on the right hand side of General Lacuna Street
(i.e., on the right hand side of a person facing in the same direction toward
which Dionisio's car was proceeding), facing the oncoming traffic. The dump
truck was parked askew (not parallel to the street curb) in such a manner as
to stick out onto the street, partly blocking the way of oncoming traffic. There
were no lights nor any so-called "early warning" reflector devices set
anywhere near the dump truck, front or rear. The dump truck had earlier that
evening been driven home by petitioner Armando U. Carbonel, its regular
driver, with the permission of his employer Phoenix, in view of work
scheduled to be carried out early the following morning, Dionisio claimed that
he tried to avoid a collision by swerving his car to the left but it was too late
and his car smashed into the dump truck. As a result of the collision, Dionisio
suffered some physical injuries including some permanent facial scars, a
"nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of
Pampanga basically claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on
the other hand, countered that the proximate cause of Dionisio's injuries was
his own recklessness in driving fast at the time of the accident, while under
the influence of liquor, without his headlights on and without a curfew pass.
Phoenix also sought to establish that it had exercised due rare in the
selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix
and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P
15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P
1,50,000.-00 as loss of expected income for plaintiff brought
about the accident in controversy and which is the result of
the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a marketing
man; mental anguish, wounded feeling, serious anxiety,
social humiliation, besmirched reputation, feeling of
economic insecurity, and the untold sorrows and frustration
in life experienced by plaintiff and his family since the
accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P
10,000.00 as damages for the wanton disregard of
defendants to settle amicably this case with the plaintiff
before the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P
4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That
court in CA-G.R. No. 65476 affirmed the decision of the trial court but
modified the award of damages to the following extent:
1. The award of P15,000.00 as
4
 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.
5
On the second issue — whether or not Dionisio was speeding home that
night — both the trial court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman
Cuyno who was at the scene of the accident almost immediately after it
occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene
of the accident told him that Dionisio's car was "moving fast" and did not
have its headlights on. 2 Dionisio, on the other hand, claimed that he was
travelling at a moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General Lacuna Streets and
had started to accelerate when his headlights failed just before the collision
took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was
hearsay and did not fag within any of the recognized exceptions to the
hearsay rule since the facts he testified to were not acquired by him through
official information and had not been given by the informants pursuant to any
duty to do so. Private respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible not under the official
records exception to the hearsay rule 4 but rather as part of the res gestae. 5
Testimonial evidence under this exception to the hearsay rule consists of
excited utterances made on the occasion of an occurrence or event
sufficiently startling in nature so as to render inoperative the normal reflective
thought processes of the observer and hence made as a spontaneous
reaction to the occurrence or event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing
into a stationary object in the dead of night is a sufficiently startling event as
to evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was
therefore admissible as part of the res gestae and should have been
considered by the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it could not, have
purported to describe quantitatively the precise velocity at winch Dionisio was
travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights,
or whether his headlights accidentally malfunctioned, just moments before
the accident. The Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the intersection but was
non-committal as to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before he reached the
intersection so as not to be detected by the police in the police precinct which
he (being a resident in the area) knew was not far away from the intersection.
We believe that the petitioners' theory is a more credible explanation than
that offered by private respondent Dionisio — i.e., that he had his headlights
on but that, at the crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off, although he succeeded in
switching his lights on again at "bright" split seconds before contact with the
dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the
time of the accident. The evidence here consisted of the testimony of
Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the
Makati Medical Center in an unconscious condition. 7 This testimony has to
be taken in conjunction with the admission of Dionisio that he had taken "a
shot or two" of liquor before dinner with his boss that night. We do not believe
that this evidence is sufficient to show that Dionisio was so heavily under the
influence of liquor as to constitute his driving a motor vehicle per se an act of
reckless imprudence. 8 There simply is not enough evidence to show how
much liquor he had in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness. We are also aware that
"one shot or two" of hard liquor may affect different people differently.
The conclusion we draw from the factual circumstances outlined above is
that private respondent Dionisio was negligent the night of the accident. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate
Appellate Court that the legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful — or negligent manner in which the
dump truck was parked in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's injuries on
the other hand, is quite clear. Put in a slightly different manner, the collision
of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely
a "passive and static condition" and that private respondent Dionisio's
negligence was an "efficient intervening cause and that consequently
6
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 are within the scope original risk, and hence of the
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
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.
7
 Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or snow
or frost or fog or even lightning; that one who leaves an
obstruction on the road or a railroad track should foresee
that a vehicle or a train will run into it; ...
The risk created by the defendant may include the
intervention of the foreseeable negligence of others. ... [The
standard of reasonable conduct may require the defendant
to protect the plaintiff against 'that occasional negligence
which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks
the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic
becomes liable when the plaintiff is run down by a car, even
though the car is negligently driven; and one who parks an
automobile on the highway without lights at night is not
relieved of responsibility when another negligently drives into
it. --- 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the injury
remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are
subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance"
doctrine. The theory here of petitioners is that while the petitioner truck driver
was negligent, private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that Dionisio having failed
to take that "last clear chance" must bear his own injuries alone. The last
clear chance doctrine of the common law was imported into our jurisdiction
by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent,
it has found its way into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule that of contributory negligence. 12 The
common law rule of contributory negligence prevented any recovery at all by
a plaintiff who was also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or omission of the
defendant. 13 The common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the casualty and failed to do so.
14 Accordingly, it is difficult to see what role, if any, the common law last
clear chance doctrine has to play in a jurisdiction where the common law
concept of contributory negligence as an absolute bar to recovery by the
plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil
Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in
negligence cases in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms, is to determine
whose negligence — the plaintiff's or the defendant's — was the legal or
proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the
use of terms like "last" or "intervening" or "immediate." The relative location in
the continuum of time of the plaintiff's and the defendant's negligent acts or
omissions, is only one of the relevant factors that may be taken into account.
Of more fundamental importance are the nature of the negligent act or
omission of each party and the character and gravity of the risks created by
such act or omission for the rest of the community. The petitioners urge that
the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate plaintiff
failed to act with that increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society and to allocate
them among the members of society. To accept the petitioners' pro-position
must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence
on the part of his employer Phoenix 16 in supervising its employees properly
and adequately. The respondent appellate court in effect found, correctly in
our opinion, that Phoenix was not able to overcome this presumption of
negligence. The circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was work to be done early
the following morning, when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the dump truck is parked
when away from company premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative
8
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.

9
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,
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)
During the incident, the cargo truck was driven by defendant Montesiano and
owned by defendant 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)
10
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
11
 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
12
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).
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.

The practical import of the doctrine is that a negligent defendant is held liable SO ORDERED.
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 G.R. No. L-68102 July 16, 1992
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 GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

13
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO,
ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA,
petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
 
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court
of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984,
which set aside its previous Decision dated 29 November 1983 reversing the
Decision of the trial court which dismissed petitioners' complaints in Civil
Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia
Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs.
Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh
McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted
the private respondents' counterclaim for moral damages, attorney's fees and
litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result
of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee
and Loida Bondoc and caused physical injuries to George Koh McKee,
Christopher Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee,
Christopher Koh McKee and the deceased Kim Koh McKee, were the
plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her
co-petitioners in G.R. No. 68103, who are the wife and children, respectively,
of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the cargo truck which
figured in the mishap; a certain Ruben Galang was the driver of the truck at
the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong
Pulo Bridge along MacArthur Highway, between Angeles City and San
Fernando, Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76
owned by private respondents, and driven by Ruben Galang, and a Ford
Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The
collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc, and physical injuries to George Koh McKee, Christopher Koh
McKee and Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of
minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the
other hand, was the baby sitter of one and a half year old Kim. At the time of
the collision, Kim was seated on the lap of Loida Bondoc who was at the
front passenger's seat of the car while Araceli and her two (2) sons were
seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two
hundred (200) cavans of rice weighing about 10,000 kilos, was traveling
southward from Angeles City to San Fernando Pampanga, and was bound
for Manila. The Ford Escort, on the other hand, was on its way to Angeles
City from San Fernando. When the northbound car was about (10) meters
away from the southern approach of the bridge, two (2) boys suddenly darted
from the right side of the road and into the lane of the car. The boys were
moving back and forth, unsure of whether to cross all the way to the other
side or turn back. Jose Koh blew the horn of the car, swerved to the left and
entered the lane of the truck; he then switched on the headlights of the car,
applied the brakes and thereafter attempted to return to his lane. Before he
could do so, his car collided with the truck. The collision occurred in the lane
of the truck, which was the opposite lane, on the said bridge.
The incident was immediately reported to the police station in Angeles City;
consequently, a team of police officers was forthwith dispatched to conduct
an on the spot investigation. In the sketch 1 prepared by the investigating
officers, the bridge is described to be sixty (60) "footsteps" long and fourteen
(14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry
brook, is made of concrete with soft shoulders and concrete railings on both
sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of
14
the cargo truck was two (2) "footsteps" from the edge of the right sidewalk,
while its left front portion was touching the center line of the bridge, with the
smashed front side of the car resting on its front bumper. The truck was
about sixteen (16) "footsteps" away from the northern end of the bridge while
the car was about thirty-six (36) "footsteps" from the opposite end. Skid
marks produced by the right front tire of the truck measured nine (9)
"footsteps", while skid marks produced by the left front tire measured five (5)
"footsteps." The two (2) rear tires of the truck, however, produced no skid
marks.
In his statement to the investigating police officers immediately after the
accident, Galang admitted that he was traveling at thirty (30) miles (48
kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and
No. 4478, were filed on 31 January 1977 before the then Court of First
Instance of Pampanga and were raffled to Branch III and Branch V of the
said court, respectively. In the first, herein petitioners in G.R. No. 68103
prayed for the award of P12,000.00 as indemnity for the death of Jose Koh,
P150,000.00 as moral damages, P60,000.00 as exemplary damages,
P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00
for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the
second case, petitioners in G.R. No. 68102 prayed for the following: (a) in
connection with the death of Kim McKee, the sum of P12,000.00 as death
benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot,
P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as
exemplary damages and P2,000.00 as miscellaneous damages; (b) in the
case of Araceli Koh McKee, in connection with the serious physical injuries
suffered, the sum of P100,000.00 as moral damages, P20,000.00 as
exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the complaint; and (c)
with respect to George McKee, Jr., in connection with the serious physical
injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as
exemplary damages and the following medical expenses: P3,400 payable to
the Medical Center, P3,500.00 payable to the St. Francis Medical Center,
P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous
expenses amounting to P5,000.00. They also sought an award of attorney's
fees amounting to 25% of the total award plus traveling and hotel expenses,
with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of
"Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical
Injuries and Damage to Property" was filed with the trial court. It was
docketed as Criminal Case No. 3751 and was raffled to Branch V of the
court, the same Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private
respondents asserted that it was the Ford Escort car which "invaded and
bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees,
P20,000.00 as actual and liquidated damages, P100,000.00 as moral
damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of
another action (Civil Case No. 4477) and failure to implead an indispensable
party, Ruben Galang, the truck driver; they also filed a motion to consolidate
the case with Civil Case No. 4477 pending before Branch III of the same
court, which was opposed by the plaintiffs. 7 Both motions were denied by
Branch V, then presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-claim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of
the truck driven by Ruben Galang, . . . which was on the right lane going
towards Manila and at a moderate speed observing all traffic rules and
regulations applicable under the circumstances then prevailing;" in their
counterclaim, they prayed for an award of damages as may be determined
by the court after due hearing, and the sums of P10,000.00 as attorney's fees
and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27
March 1978 a motion to adopt the testimonies of witnesses taken during the
hearing of Criminal Case No. 3751, which private respondents opposed and
which the court denied. 9 Petitioners subsequently moved to reconsider the
order denying the motion for consolidation, 10 which Judge Capulong
granted in the Order of 5 September 1978; he then directed that Civil Case
No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court
then presided over by Judge Mario Castañeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee,
Fernando Nuñag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco,
Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits.
Upon the other hand, private respondents presented as witnesses Ruben
Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
15
In the criminal case, the prosecution presented as witnesses Mrs. Araceli
McKee, Salud Samia, Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert
Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon,
Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio
Tanhueco, and offered several documentary exhibits. 13 Upon the other
hand, the defense presented the accused Ruben Galang, Luciano Punzalan,
Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a decision against the
accused Ruben Galang in the aforesaid criminal case. The dispositive
portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered finding the accused Ruben Galang guilty beyond
reasonable doubt of the crime charged in the information
and after applying the provisions of Article 365 of the
Revised Penal Code and indeterminate sentence law, this
Court, imposes upon said accused Ruben Galang the
penalty of six (6) months of arresto mayor as minimum to
two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced
to pay and indemnify the heirs of Loida Bondoc the amount
of P12,000.00 as indemnity for her death; to reimburse the
heirs of Loida Bondoc the amount of P2,000.00 representing
the funeral expenses; to pay the heirs of Loida Bondoc the
amount of P20,000.00 representing her loss of income; to
indemnify and pay the heirs of the deceased Jose Koh the
value of the car in the amount of P53,910.95, and to pay the
costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the
same day, counsel for petitioners filed with Branch III of the court — where
the two (2) civil cases were pending — a manifestation to that effect and
attached thereto a copy of the decision. 16
Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil
cases on 12 November 1980 and awarded the private respondents moral
damages, exemplary damages and attorney's fees. 17 The dispositive
portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be
in favor of the defendants and against the plaintiffs, these
cases are hereby ordered DISMISSED with costs against
the plaintiffs. The defendants had proven their counter-claim,
thru evidences (sic) presented and unrebutted. Hence, they
are hereby awarded moral and exemplary damages in the
amount of P100,000.00 plus attorney's fee of P15,000.00
and litigation expenses for (sic) P2,000.00. The actual
damages claimed for (sic) by the defendants is (sic) hereby
dismissing for lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to the petitioners on 28
November 1980 and was received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of
Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was
assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and
4478 likewise separately appealed the 12 November 1980 decision to the
appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and
C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil
Cases Division.
On 4 October 1982, the respondent Court promulgated its decision 20 in
C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 The
dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay
Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa
rin ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent
Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition
for its review 23 was filed with this Court; said petition was subsequently
denied. A motion for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then known as the
Intermediate Appellate Court, promulgated its consolidated decision in A.C.-
G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:
WHEREFORE, the decision appealed from it hereby
reversed and set aside and another one is rendered,
ordering defendants-appellees to pay plaintiffs-appellants as
follows:
16
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U
and U-1)
P 4,000.00 expenses for holding a wake (p.
9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and
V-1)
For the death of Kim Koh McKee:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot
(Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-
1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic
(Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical
Center (Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical
Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center
(Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital
(Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center
(Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and
D-1)
In addition, We award P10,000.00 as counsel (sic) fees in
Civil Case No. 4477 and another P10,000.00; as counsel
(sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it
was Ruben Galang's inattentiveness or reckless imprudence which caused
the accident. The appellate court further said that the law presumes
negligence on the part of the defendants (private respondents), as employers
of Galang, in the selection and supervision of the latter; it was further
asserted that these defendants did not allege in their Answers the defense of
having exercised the diligence of a good father of a family in selecting and
supervising the said employee.27 This conclusion of reckless imprudence is
based on the following findings of fact:
In the face of these diametrically opposed judicial positions,
the determinative issue in this appeal is posited in the fourth
assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic)
DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW
HIS HORN SWITCHED ON HIS HEADLIGHTS AND
COULD NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified
thus:
Q What happened after that, as you
approached the bridge?
17
A When we were approaching the bridge,
two (2) boys tried to cross the right lane on
the right side of the highway going to San
Fernando. My father, who is (sic) the driver
of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and
swerved to the left to avoid hitting the two
(2) boys. We noticed the truck, he switched
on the headlights to warn the truck driver, to
slow down to give us the right of way to
come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its
way.
Q What happened after that?
A After avoiding the two (2) boys, the car
tried to go back to the right lane since the
truck is (sic) coming, my father stepped on
the brakes and all what (sic) I heard is the
sound of impact (sic), sir. (tsn, pp. 5-6, July
22, 1977); or (Exhibit "O" in these Civil
Cases).
x x x           x x x          x x x
Q Mrs. how did you know that the truck
driven by the herein accused, Ruben Galang
did not reduce its speed before the actual
impact of collision (sic) as you narrated in
this Exhibit "1," how did you know (sic)?
A It just kept on coming, sir. If only he
reduced his speed, we could have got (sic)
back to our right lane on side (sic) of the
highway, sir. (tsn. pp. 33-34 July 22, 1977)
or (Exhibit "O" in these Civil Cases) (pp. 30-
31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the
following facts and circumstances:
1. An impartial eye-witness to the mishap, Eugenio
Tanhueco, declared that the truck stopped only when it had
already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing
in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation
witness because he was one of the first to arrive at the
scene of the accident. As a matter of fact, he brought one of
the injured passengers to the hospital.
We are not prepared to accord faith and credit to defendants'
witnesses, Zenaida Soliman, a passenger of the truck, and
Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the
ordinary course of events people usually take the side of the
person with whom they are associated at the time of the
accident, because, as a general rule, they do not wish to be
identified with the person who was at fault. Thus an
imaginary bond is unconsciously created among the several
persons within the same group (People vs. Vivencio, CA-
G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that
he is an accommodation witness. He did not go to the succor
of the injured persons. He said he wanted to call the police
authorities about the mishap, but his phone had no dial tone.
Be this (sic) as it may, the trial court in the criminal case
acted correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the
claim that Galang stopped his truck at a safe distance from
the car, according to plaintiffs (p. 25, Appellants' Brief). This
18
contention of appellants was completely passed sub-silencio
or was not refuted by appellees in their brief. Exhibit 2 is one
of the exhibits not included in the record. According to the
Table of Contents submitted by the court below, said Exhibit
2 was not submitted by defendants-appellees. In this light, it
is not far-fetched to surmise that Galang's claim that he
stopped was an eleventh-hour desperate attempt to
exculpate himself from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car
about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that
inspite of the fact that you admitted that the
road is straight and you may be able to (sic)
see 500-1000 meters away from you any
vehicle, you first saw that car only about ten
(10) meters away from you for the first time?
x x x           x x x          x x x
A I noticed it, sir, that it was about ten (10)
meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state
under your oath that you have (sic) not
noticed it before that ten (10) meters? (Tsn.
3 to 5, Sept. 18, 1979). (p. 16, Appellants'
Brief)
Galang's testimony substantiate (sic) Tanhueco's statement
that Galang stopped only because of the impact. At ten (10)
meters away, with the truck running at 30 miles per hour, as
revealed in Galang's affidavit (Exh. 2; p. 25, Appellants'
brief), it is well-nigh impossible to avoid a collision on a
bridge.
5. Galang's truck stopped because of the collision, and not
because he waited for Jose Koh to return to his proper lane.
The police investigator, Pfc. Fernando L. Nuñag, stated that
he found skid marks under the truck but there were not (sic)
skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978).
The presence of skid marks show (sic) that the truck was
speeding. Since the skid marks were found under the truck
and none were found at the rear of the truck, the reasonable
conclusion is that the skid marks under the truck were
caused by the truck's front wheels when the trucks (sic)
suddenly stopped seconds before the mishap in an
endeavor to avoid the same. But, as aforesaid, Galang saw
the car at barely 10 meters away, a very short distance to
avoid a collision, and in his futile endeavor to avoid the
collision he abruptly stepped on his brakes but the smashup
happened just the same.
For the inattentiveness or reckless imprudence of Galang,
the law presumes negligence on the part of the defendants
in the selection of their driver or in the supervision over him.
Appellees did not allege such defense of having exercised
the duties of a good father of a family in the selection and
supervision of their employees in their answers. They did not
even adduce evidence that they did in fact have methods of
selection and programs of supervision. The inattentiveness
or negligence of Galang was the proximate cause of the
mishap. If Galang's attention was on the highway, he would
have sighted the car earlier or at a very safe distance than
(sic) 10 meters. He proceeded to cross the bridge, and tried
to stop when a collision was already inevitable, because at
the time that he entered the bridge his attention was not
riveted to the road in front of him.
On the question of damages, the claims of appellants were
amply proven, but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was
subsequently filed by private respondents on the basis of which the
respondent Court, in its Resolution of 3 April 1984, 29 reconsidered and set
aside its 29 November 1983 decision and affirmed in toto the trial court's
judgment of 12 November 1980. A motion to reconsider this Resolution was
denied by the respondent Court on 4 July 1984.30
Hence, this petition.
19
Petitioners allege that respondent Court:
I INAPPLICABLE TO THESE CASES.
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR
WHEN IT TOTALLY REVERSED ITS DECISION BY
MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE
PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND
CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND
FOUND IN THE RECORDS; THEREFORE, RESPONDENT
COURT'S RESOLUTIONS (ANNEXES A and B, PETITION)
ARE CLEARLY ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED
WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID
DOWN BY THIS HONORABLE COURT BY STATING
AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT
THE FINDINGS OF GUILT IN THE CRIMINAL CASE
WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF
DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE
NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF DISCRETION AND
CITED ANOTHER CASE WHICH IS CLEARLY
V
. . . COMMITTED A PATENT ERROR AND GRAVELY
ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS
OF THE TRIAL COURT WHICH ARE CLEARLY
ERRONEOUS AND CONTRARY TO THE EVIDENCE
FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE
CONTRARY TO THE ADMITTED FACTS AND JUDICIAL
ADMISSIONS MADE BY THE PRIVATE RESPONDENTS'
DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN
IT AWARDED DAMAGES TO THE PRIVATE
RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND
SAID AWARD IS NOT ALLOWED BY LAW AND THE
CONSISTENT DECISIONS OF THIS HONORABLE
COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN
IT ERRONEOUSLY SET ASIDE ITS DECISION
AWARDING DAMAGES TO PETITIONERS WHICH IS
CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE
LAW AND JURISPRUDENCE RELATIVE TO THE AWARD
OF DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to
Comment on the petition. 32 After the said Comment 33 was filed, petitioners
submitted a Reply 34 thereto; this Court then gave due course to the instant
petitions and required petitioners to file their Brief, 35 which they accordingly
complied with.
20
There is merit in the petition. Before We take on the main task of dissecting
the arguments and counter-arguments, some observations on the procedural
vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability
arising from a quasi-delict under Article 2176 in relation to Article 2180 of the
Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478
was eventually consolidated with Civil Case No. 4477 for joint trial in Branch
III of the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made,
to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The
parties may have then believed, and understandably so, since by then no
specific provision of law or ruling of this Court expressly allowed such a
consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case,
cannot be consolidated with the criminal case. Indeed, such consolidation
could have been farthest from their minds as Article 33 itself expressly
provides that the "civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence." Be that as
it may, there was then no legal impediment against such consolidation.
Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity
of suits, guard against oppression and abuse, prevent delays, clear
congested dockets to simplify the work of the trial court, or in short, attain
justice with the least expense to the parties litigants, 36 would have easily
sustained a consolidation, thereby preventing the unseeming, if no ludicrous,
spectacle of two (2) judges appreciating, according to their respective
orientation, perception and perhaps even prejudice, the same facts
differently, and thereafter rendering conflicting decisions. Such was what
happened in this case. It should not, hopefully, happen anymore. In the
recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the
present provisions of Rule 111 of the Revised Rules of Court allow a
consolidation of an independent civil action for the recovery of civil liability
authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the
criminal action subject, however, to the condition that no final judgment has
been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751
finding Galang guilty of reckless imprudence, although already final by virtue
of the denial by no less than this Court of his last attempt to set aside the
respondent Court's affirmance of the verdict of conviction, has no relevance
or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or
negligence in a quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. And, as more
concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the
case of independent civil actions under the new Civil Code, the result of the
criminal case, whether acquittal or conviction, would be entirely irrelevant to
the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court
stated:
. . . It seems perfectly reasonable to conclude that the civil
actions mentioned in Article 33, permitted in the same
manner to be filed separately from the criminal case, may
proceed similarly regardless of the result of the criminal
case.
Indeed, when the law has allowed a civil case related to a
criminal case, to be filed separately and to proceed
independently even during the pendency of the latter case,
the intention is patent to make the court's disposition of the
criminal case of no effect whatsoever on the separate civil
case. This must be so because the offenses specified in
Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate
civil action because of the distinct separability of their
respective juridical cause or basis of action . . . .
What remains to be the most important consideration as to why the decision
in the criminal case should not be considered in this appeal is the fact that
private respondents were not parties therein. It would have been entirely
different if the petitioners' cause of action was for damages arising from a
delict, in which case private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the absence of any
collusion, the judgment of conviction in the criminal case against Galang
would have been conclusive in the civil cases for the subsidiary liability of the
private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this
petition is whether or not respondent Court's findings in its challenged
resolution are supported by evidence or are based on mere speculations,
conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts.
21
Therefore, in an appeal by certiorari under Rule 45 of the Revised Rules of
Court, only questions of law may be raised. The resolution of factual issues is
the function of the lower courts whose findings on these matters are received
with respect and are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of
the trial courts and the Court of Appeals may be set aside when such
findings are not supported by the evidence or when the trial court failed to
consider the material facts which would have led to a conclusion different
from what was stated in its judgment. 43 The same is true where the
appellate court's conclusions are grounded entirely on conjectures,
speculations and surmises 44 or where the conclusions of the lower courts
are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the
aforementioned exceptions as the findings and conclusions of the trial court
and the respondent Court in its challenged resolution are not supported by
the evidence, are based on an misapprehension of facts and the inferences
made therefrom are manifestly mistaken. The respondent Court's decision of
29 November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car
improperly invaded the lane of the truck and that the collision occurred in
said lane gave rise to the presumption that the driver of the car, Jose Koh,
was negligent. On the basis of this presumed negligence, the appellate court
immediately concluded that it was Jose Koh's negligence that was the
immediate and proximate cause of the collision. This is an unwarranted
deduction as the evidence for the petitioners convincingly shows that the car
swerved into the truck's lane because as it approached the southern end of
the bridge, two (2) boys darted across the road from the right sidewalk into
the lane of the car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you
approached the bridge?
A When we were approaching the bridge,
two (2) boys tried to cross the right lane on
the right side of the highway going to San
Fernando. My father, who is (sic) the driver
of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and
swerved to the left to avoid hitting the two
(2) boys. We noticed the truck, he switched
on the headlights to warn the truck driver, to
slow down to give us the right of way to
come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its
way.
Q What happened after that?
A After avoiding the two (2) boys, the car
tried to go back to the right lane since the
truck is (sic) coming, my father stepped on
the brakes and all what (sic) I heard is the
sound of impact (sic), sir. 46
Her credibility and testimony remained intact even during cross examination.
Jose Koh's entry into the lane of the truck was necessary in order to avoid
what was, in his mind at that time, a greater peril — death or injury to the two
(2) boys. Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs.
Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do (Black's Law Dictionary, Fifth Edition, 930), or
as Judge Cooley defines it, "(T)he failure to observe for the
protection of the interests of another person, that degree of
care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury."
(Cooley on Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than
seventy years ago but still a sound rule, (W)e held:
The test by which to determine the existence
of negligence in a particular case may be
stated as follows: Did the defendant in doing
22
 the alleged negligent act use that
(reasonable care and caution which an
ordinarily prudent person would have used
in the same situation?) If not, then he is
guilty of negligence. The law here in effect
adopts the standard supposed to be
supplied by the imaginary conduct of the
discreet paterfamilias of the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . 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. (citing Ahern v. Oregon Telephone Co., 35
Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts
obtaining in this case, it is manifest that no negligence could be imputed to
Jose Koh. Any reasonable and ordinary prudent man would have tried to
avoid running over the two boys by swerving the car away from where they
were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the
vehicle in the opposite lane would be several meters away and could very
well slow down, move to the side of the road and give way to the oncoming
car. Moreover, under what is known as the emergency rule, "one who
suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car,
We find that Jose Koh adopted the best means possible in the given situation
to avoid hitting them. Applying the above test, therefore, it is clear that he
was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be
said that his negligence was the proximate cause of the collision. Proximate
cause has been defined as:
. . . that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.
And more comprehensively, the proximate legal cause is
that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result
therefrom. 50
Applying the above definition, although it may be said that the act of Jose
Koh, if at all negligent, was the initial act in the chain of events, it cannot be
said that the same caused the eventual injuries and deaths because of the
occurrence of a sufficient intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy. The entry of the car into
the lane of the truck would not have resulted in the collision had the latter
heeded the emergency signals given by the former to slow down and give
the car an opportunity to go back into its proper lane. Instead of slowing
down and swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the truck driver
continued at full speed towards the car. The truck driver's negligence
becomes more apparent in view of the fact that the road is 7.50 meters wide
while the car measures 1.598 meters and the truck, 2.286 meters, in width.
This would mean that both car and truck could pass side by side with a
clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level
sidewalk which could have partially accommodated the truck. Any
reasonable man finding himself in the given situation would have tried to
avoid the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that
his truck was running at 30 miles (48 kilometers) per hour along the bridge
while the maximum speed allowed by law on a bridge 52 is only 30
kilometers per hour. Under Article 2185 of the Civil Code, a person driving a
23
vehicle is presumed negligent if at the time of the mishap, he was violating
any traffic regulation. We cannot give credence to private respondents' claim
that there was an error in the translation by the investigating officer of the
truck driver's response in Pampango as to whether the speed cited was in
kilometers per hour or miles per hour. The law presumes that official duty has
been regularly performed; 53 unless there is proof to the contrary, this
presumption holds. In the instant case, private respondents' claim is based
on mere conjecture.
The truck driver's negligence was likewise duly established through the
earlier quoted testimony of petitioner Araceli Koh McKee which was duly
corroborated by the testimony of Eugenio Tanhueco, an impartial eyewitness
to the mishap.
Araceli Koh McKee testified further, thus:
x x x           x x x          x x x
Q Mrs. how did you know that the truck
driven by the herein accused, Ruben Galang
did not reduce its speed before the actual
impact of collision as you narrated in this
Exhibit "1," how did you know?
A It just kept on coming, sir. If only he
reduced his speed, we could have got (sic)
back to our right lane on side (sic) of the
highway, sir. (tsn, pp. 33-34, July 22, 1977)
or (Exhibit; "O" in these Civil Cases) (pp. 30-
31, Appellants' Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it
moving?
A It was moving 50 to 60 kilometers per
hour, sir.
Q Immediately after you saw this truck, do
you know what happened?
A I saw the truck and a car collided (sic), sir,
and I went to the place to help the victims.
(tsn. 28, April 19, 1979)
x x x           x x x          x x x
Q From the time you saw the truck to the
time of the impact, will you tell us if the said
truck ever stopped?
A I saw it stopped (sic) when it has (sic)
already collided with the car and it was
already motionless. (tsn. 31, April 19, 1979;
Emphasis Supplied). (p. 27, Appellants'
Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to
take the proper measures and degree of care necessary to avoid the collision
which was the proximate cause of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance
finds application here. Last clear chance is a doctrine in the law of torts which
states that the contributory negligence of the party injured will not defeat the
claim for damages if it is shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last
clear chance to avoid the mishap is considered in law solely responsible for
the consequences thereof.56
In Bustamante vs. Court of Appeals, 57 We held:
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 (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an
24
 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 plaintiff's peril, or according to some
authorities, should have been aware of it in the reasonable
exercise of due care, had in fact an opportunity later than
that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp.
798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
The doctrine of last clear chance was defined by this Court
in the case of Ong v. Metropolitan Water District, 104 Phil.
397 (1958), in this wise:
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. vs.
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 (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that
it was the truck driver's negligence in failing to exert ordinary care to avoid
the collision which was, in law, the proximate cause of the collision. As
employers of the truck driver, the private respondents are, under Article 2180
of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their
employee. That presumption, however, is only juris tantum, not juris et de
jure. 59 Their only possible defense is that they exercised all the diligence of
a good father of a family to prevent the damage. Article 2180 reads as
follows:
The obligation imposed by Article 2176 is demandable not
only for one's own acts or omissions, but also for those of
persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for 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.
xxx xxx xxx
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the
selection and supervision of employees. 60 The answers of the private
respondents in Civil Cases Nos. 4477 and 4478 did not interpose this
defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983
25
in reversing the decision of the trial court which dismissed Civil Cases Nos.
4477 and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient
legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must,
however, be increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of

the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29
November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to
the modification that the indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

G.R. No. 97626 March 14, 1997

PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE

COMMERCIAL INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE
LEON, MARIA ANGELITA PASCUAL, et al., petitioners,
vs.
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP.,
represented by ROMEO LIPANA, its President & General Manager,
respondents.

26

HERMOSISIMA, JR., J.:
Challenged in this petition for review is the Decision dated February 28,
19911 rendered by public respondent Court of Appeals which affirmed the
Decision dated November 15, 1985 of the Regional Trial Court, National
Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case No.
27288 entitled "Rommel's Marketing Corporation, etc. v. Philippine Bank of
Commerce, now absorbed by Philippine Commercial and Industrial Bank."
The case stemmed from a complaint filed by the private respondent
Rommel's Marketing Corporation (RMC for brevity), represented by its
President and General Manager Romeo Lipana, to recover from the former
Philippine Bank of Commerce (PBC for brevity), now absorbed by the
Philippine Commercial International Bank, the sum of P304,979.74
representing various deposits it had made in its current account with said
bank but which were not credited to its account, and were instead deposited
to the account of one Bienvenido Cotas, allegedly due to the gross and
inexcusable negligence of the petitioner bank.
RMC maintained two (2) separate current accounts, Current Account Nos.
53-01980-3 and 53-01748-7, with the Pasig Branch of PBC in connection
with its business of selling appliances.
In the ordinary and usual course of banking operations, current account
deposits are accepted by the bank on the basis of deposit slips prepared and
signed by the depositor, or the latter's agent or representative, who indicates
therein the current account number to which the deposit is to be credited, the
name of the depositor or current account holder, the date of the deposit, and
the amount of the deposit either in cash or checks. The deposit slip has an
upper portion or stub, which is detached and given to the depositor or his
agent; the lower portion is retained by the bank. In some instances, however,
the deposit slips are prepared in duplicate by the depositor. The original of
the deposit slip is retained by the bank, while the duplicate copy is returned
or given to the depositor.
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have
entrusted RMC funds in the form of cash totalling P304,979.74 to his
secretary, Irene Yabut, for the purpose of depositing said funds in the current
accounts of RMC with PBC. It turned out, however, that these deposits, on all
occasions, were not credited to RMC's account but were instead deposited to
Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise
maintains an account with the same bank. During this period, petitioner bank
had, however, been regularly furnishing private respondent with monthly
statements showing its current accounts balances. Unfortunately, it had
never been the practice of Romeo Lipana to check these monthly statements
of account reposing complete trust and confidence on petitioner bank.
Irene Yabut's modus operandi is far from complicated. She would accomplish
two (2) copies of the deposit slip, an original and a duplicate. The original
showed the name of her husband as depositor and his current account
number. On the duplicate copy was written the account number of her
husband but the name of the account holder was left blank. PBC's teller,
Azucena Mabayad, would, however, validate and stamp both the original and
the duplicate of these deposit slips retaining only the original copy despite
the lack of information on the duplicate slip. The second copy was kept by
Irene Yabut allegedly for record purposes. After validation, Yabut would then
fill up the name of RMC in the space left blank in the duplicate copy and
change the account number written thereon, which is that of her husband's,
and make it appear to be RMC's account number, i.e., C.A. No. 53-01980-3.
With the daily remittance records also prepared by Ms. Yabut and submitted
to private respondent RMC together with the validated duplicate slips with the
latter's name and account number, she made her company believe that all
the while the amounts she deposited were being credited to its account
when, in truth and in fact, they were being deposited by her and credited by
the petitioner bank in the account of Cotas. This went on in a span of more
than one (1) year without private respondent's knowledge.
Upon discovery of the loss of its funds, RMC demanded from petitioner bank
the return of its money, but as its demand went unheeded, it filed a collection
suit before the Regional Trial Court of Pasig, Branch 160. The trial court
found petitioner bank negligent and ruled as follows:
WHEREFORE, judgment is hereby rendered sentencing
defendant Philippine Bank of Commerce, now absorbed by
defendant Philippine Commercial & Industrial Bank, and
defendant Azucena Mabayad to pay the plaintiff, jointly and
severally, and without prejudice to any criminal action which
may be instituted if found warranted:
1. The sum of P304,979.72, representing plaintiffs lost
deposit, plus interest thereon at the legal rate from the filing
of the complaint;
2. A sum equivalent to 14% thereof, as exemplary damages;
27
 3. A sum equivalent to 25% of the total amount due, as and
for attorney's fees; and
4. Costs.
Defendants' counterclaim is hereby dismissed for lack of
merit.2
On appeal, the appellate court affirmed the foregoing decision with
modifications, viz:
WHEREFORE, the decision appealed from herein is
MODIFIED in the sense that the awards of exemplary
damages and attorney's fees specified therein are eliminated
and instead, appellants are ordered to pay plaintiff, in
addition to the principal sum of P304,979.74 representing
plaintiff's lost deposit plus legal interest thereon from the
filing of the complaint, P25,000.00 attorney's fees and costs
in the lower court as well as in this Court.3
Hence, this petition anchored on the following grounds:
1) The proximate cause of the loss is the negligence of
respondent Rommel Marketing Corporation and Romeo
Lipana in entrusting cash to a dishonest employee.
2) The failure of respondent Rommel Marketing Corporation
to cross-check the bank's statements of account with its own
records during the entire period of more than one (1) year is
the proximate cause of the commission of subsequent frauds
and misappropriation committed by Ms. Irene Yabut.
3) The duplicate copies of the deposit slips presented by
respondent Rommel Marketing Corporation are falsified and
are not proof that the amounts appearing thereon were
deposited to respondent Rommel Marketing Corporation's
account with the bank,
4) The duplicate copies of the deposit slips were used by
Ms. Irene Yabut to cover up her fraudulent acts against
respondent Rommel Marketing Corporation, and not as
records of deposits she made with the bank.4
The petition has no merit.
Simply put, the main issue posited before us is: What is the proximate cause
of the loss, to the tune of P304,979.74, suffered by the private respondent
RMC — petitioner bank's negligence or that of private respondent's?
Petitioners submit that the proximate cause of the loss is the negligence of
respondent RMC and Romeo Lipana in entrusting cash to a dishonest
employee in the person of Ms. Irene Yabut.5 According to them, it was
impossible for the bank to know that the money deposited by Ms. Irene Yabut
belong to RMC; neither was the bank forewarned by RMC that Yabut will be
depositing cash to its account. Thus, it was impossible for the bank to know
the fraudulent design of Yabut considering that her husband, Bienvenido
Cotas, also maintained an account with the bank. For the bank to inquire into
the ownership of the cash deposited by Ms. Irene Yabut would be irregular.
Otherwise stated, it was RMC's negligence in entrusting cash to a dishonest
employee which provided Ms. Irene Yabut the opportunity to defraud RMC.6
Private respondent, on the other hand, maintains that the proximate cause of
the loss was the negligent act of the bank, thru its teller Ms. Azucena
Mabayad, in validating the deposit slips, both original and duplicate,
presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact that one of
the deposit slips was not completely accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this
Chapter.
There are three elements of a quasi-delict: (a) damages suffered by the
plaintiff; (b) fault or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred
by the plaintiff.7
In the case at bench, there is no dispute as to the damage suffered by the
28
private respondent (plaintiff in the trial court) RMC in the amount of breakdown, if it is deposited for cash, and
P304,979.74. It is in ascribing fault or negligence which caused the damage the check number, the amount and then he
where the parties point to each other as the culprit. signs the deposit slip.

Negligence is the omission to do something which a reasonable man, guided Q: Now, how many deposit slips do you
by those considerations which ordinarily regulate the conduct of human normally require in accomplishing current
affairs, would do, or the doing of something which a prudent and reasonable account deposit, Mrs. Mabayad?
man would do. The seventy-eight (78)-year-old, yet still relevant, case of
Picart v. Smith,8 provides the test by which to determine the existence of A: The bank requires only one copy of the
negligence in a particular case which may be stated as follows: Did the deposit although some of our clients
defendant in doing the alleged negligent act use that reasonable care and prepare the deposit slip in duplicate.
caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect adopts Q: Now in accomplishing current account
the standard supposed to be supplied by the imaginary conduct of the deposits from your clients, what do you
discreet paterfamilias of the Roman law. The existence of negligence in a issue to the depositor to evidence the
given case is not determined by reference to the personal judgment of the deposit made?
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. A: We issue or we give to the clients the
depositor's stub as a receipt of the deposit.
Applying the above test, it appears that the bank's teller, Ms. Azucena
Mabayad, was negligent in validating, officially stamping and signing all the Q: And who prepares the deposit slip?
deposit slips prepared and presented by Ms. Yabut, despite the glaring fact
that the duplicate copy was not completely accomplished contrary to the self- A: The depositor or the authorized
imposed procedure of the bank with respect to the proper validation of representative sir?
deposit slips, original or duplicate, as testified to by Ms. Mabayad herself,
thus: Q: Where does the depositor's stub comes
(sic) from Mrs. Mabayad, is it with the
Q: Now, as teller of PCIB, Pasig Branch, will deposit slip?
you please tell us Mrs. Mabayad your
important duties and functions? A: The depositor's stub is connected with
the deposit slip or the bank's copy. In a
A: I accept current and savings deposits deposit slip, the upper portion is the
from depositors and encashments. depositor's stub and the lower portion is the
bank's copy, and you can detach the bank's
Q: Now in the handling of current account copy from the depositor's stub by tearing it
deposits of bank clients, could you tell us the sir.
procedure you follow?
Q: Now what do you do upon presentment
A: The client or depositor or the authorized of the deposit slip by the depositor or the
representative prepares a deposit slip by depositor's authorized representative?
filling up the deposit slip with the name, the
account number, the date, the cash A: We see to it that the deposit slip9 is
29
 properly accomplished and then we count
the money and then we tally it with the
deposit slip sir.
Q: Now is the depositor's stub which you
issued to your clients validated?
A: Yes, sir. 10 [Emphasis ours]
Clearly, Ms. Mabayad failed to observe this very important
procedure. The fact that the duplicate slip was not compulsorily
required by the bank in accepting deposits should not relieve the
petitioner bank of responsibility. The odd circumstance alone that
such duplicate copy lacked one vital information — that of the name
of the account holder — should have already put Ms. Mabayad on
guard. Rather than readily validating the incomplete duplicate copy,
she should have proceeded more cautiously by being more probing
as to the true reason why the name of the account holder in the
duplicate slip was left blank while that in the original was filled up.
She should not have been so naive in accepting hook, line and
sinker the too shallow excuse of Ms. Irene Yabut to the effect that
since the duplicate copy was only for her personal record, she would
simply fill up the blank space later on. 11 A "reasonable man of
ordinary prudence" 12 would not have given credence to such
explanation and would have insisted that the space left blank be
filled up as a condition for validation. Unfortunately, this was not how
bank teller Mabayad proceeded thus resulting in huge losses to the
private respondent.
Negligence here lies not only on the part of Ms. Mabayad but also on the part
of the bank itself in its lackadaisical selection and supervision of Ms.
Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio,
then Manager of the Pasig Branch of the petitioner bank and now its Vice-
President, to the effect that, while he ordered the investigation of the incident,
he never came to know that blank deposit slips were validated in total
disregard of the bank's validation procedures, viz:
Q: Did he ever tell you that one of your
cashiers affixed the stamp mark of the bank
on the deposit slips and they validated the
same with the machine, the fact that those
deposit slips were unfilled up, is there any
report similar to that?
A: No, it was not the cashier but the teller.
Q: The teller validated the blank deposit
slip?
A: No it was not reported.
Q: You did not know that any one in the
bank tellers or cashiers validated the blank
deposit slip?
A: I am not aware of that.
Q: It is only now that you are aware of that?
A: Yes, sir. 13
Prescinding from the above, public respondent Court of Appeals aptly
observed:
xxx xxx xxx
It was in fact only when he testified in this case in February,
1983, or after the lapse of more than seven (7) years
counted from the period when the funds in question were
deposited in plaintiff's accounts (May, 1975 to July, 1976)
that bank manager Bonifacio admittedly became aware of
the practice of his teller Mabayad of validating blank deposit
slips. Undoubtedly, this is gross, wanton, and inexcusable
negligence in the appellant bank's supervision of its
employees. 14
It was this negligence of Ms. Azucena Mabayad, coupled by the negligence
of the petitioner bank in the selection and supervision of its bank teller, which
was the proximate cause of the loss suffered by the private respondent, and
not the latter's act of entrusting cash to a dishonest employee, as insisted by
the petitioners.
Proximate cause is determined on the facts of each case upon mixed
considerations of logic, common sense, policy and precedent. 15 Vda. de
Bataclan v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v.
Court of Appeals, 17 defines proximate cause as "that cause, which, in
30
natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have
occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently
validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut
would not have the facility with which to perpetrate her fraudulent scheme
with impunity. Apropos, once again, is the pronouncement made by the
respondent appellate court, to wit:
. . . . Even if Yabut had the fraudulent intention to
misappropriate the funds entrusted to her by plaintiff, she
would not have been able to deposit those funds in her
husband's current account, and then make plaintiff believe
that it was in the latter's accounts wherein she had deposited
them, had it not been for bank teller Mabayad's aforesaid
gross and reckless negligence. The latter's negligence was
thus the proximate, immediate and efficient cause that
brought about the loss claimed by plaintiff in this case, and
the failure of plaintiff to discover the same soon enough by
failing to scrutinize the monthly statements of account being
sent to it by appellant bank could not have prevented the
fraud and misappropriation which Irene Yabut had already
completed when she deposited plaintiff's money to the
account of her husband instead of to the latter's accounts. 18
Furthermore, under the doctrine of "last clear chance" (also referred to, at
times as "supervening negligence" or as "discovered peril"), petitioner bank
was indeed the culpable party. This doctrine, in essence, states that where
both parties are negligent, but the negligent act of one is appreciably later in
time than that of the other, or when it is impossible to determine whose fault
or negligence should be attributed to the incident, the one who had the last
clear opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof. 19 Stated differently, the rule
would also mean that an antecedent negligence of a person does not
preclude the recovery of damages for the supervening negligence of, or bar a
defense against liability sought by another, if the latter, who had the last fair
chance, could have avoided the impending harm by the exercise of due
diligence. 20 Here, assuming that private respondent RMC was negligent in
entrusting cash to a dishonest employee, thus providing the latter with the
opportunity to defraud the company, as advanced by the petitioner, yet it
cannot be denied that the petitioner bank, thru its teller, had the last clear
opportunity to avert the injury incurred by its client, simply by faithfully
observing their self-imposed validation procedure.
At this juncture, it is worth to discuss the degree of diligence ought to be
exercised by banks in dealing with their clients.
The New Civil Code provides:
Art. 1173. The fault or negligence of the obligor consists in
the omission of that diligence which is required by the nature
of the obligation and corresponds with the circumstances of
the persons, of the time and of the place. When negligence
shows bad faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence which is to
be observed in the performance, that which is expected of a
good father of a family shall be required. (1104a)
In the case of banks, however, the degree of diligence required is more than
that of a good father of a family. Considering the fiduciary nature of their
relationship with their depositors, banks are duty bound to treat the accounts
of their clients with the highest degree of care. 21
As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in
every case, the depositor expects the bank to treat his account with the
utmost fidelity, whether such account consists only of a few hundred pesos
or of millions. The bank must record every single transaction accurately,
down to the last centavo, and as promptly as possible. This has to be done if
the account is to reflect at any given time the amount of money the depositor
can dispose as he sees fit, confident that the bank will deliver it as and to
whomever he directs. A blunder on the part of the bank, such as the failure to
duly credit him his deposits as soon as they are made, can cause the
depositor not a little embarrassment if not financial loss and perhaps even
civil and criminal litigation.
The point is that as a business affected with public interest and because of
the nature of its functions, the bank is under obligation to treat the accounts
of its depositors with meticulous care, always having in mind the fiduciary
nature of their relationship. In the case before us, it is apparent that the
petitioner bank was remiss in that duty and violated that relationship.
Petitioners nevertheless aver that the failure of respondent RMC to cross-
check the bank's statements of account with its own records during the entire
period of more than one (1) year is the proximate cause of the commission of
subsequent frauds and misappropriation committed by Ms. Irene Yabut.
31
We do not agree. WHEREFORE, the decision of the respondent Court of Appeals is modified
by reducing the amount of actual damages private respondent is entitled to
While it is true that had private respondent checked the monthly statements by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount
of account sent by the petitioner bank to RMC, the latter would have they would pay the private respondent. Private respondent shall have
discovered the loss early on, such cannot be used by the petitioners to recourse against Ms. Irene Yabut. In all other respects, the appellate court's
escape liability. This omission on the part of the private respondent does not decision is AFFIRMED.
change the fact that were it not for the wanton and reckless negligence of the
petitioners' employee in validating the incomplete duplicate deposit slips Proportionate costs.
presented by Ms. Irene Yabut, the loss would not have occurred.
Considering, however, that the fraud was committed in a span of more than SO ORDERED.
one (1) year covering various deposits, common human experience dictates
that the same would not have been possible without any form of collusion
between Ms. Yabut and bank teller Mabayad. Ms. Mabayad was negligent in
the performance of her duties as bank teller nonetheless. Thus, the
petitioners are entitled to claim reimbursement from her for whatever they
shall be ordered to pay in this case.

The foregoing notwithstanding, it cannot be denied that, indeed, private

respondent was likewise negligent in not checking its monthly statements of
account. Had it done so, the company would have been alerted to the series
of frauds being committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC, particularly
Romeo Lipana, had exercised even a little vigilance in their financial affairs.
This omission by RMC amounts to contributory negligence which shall
mitigate the damages that may be awarded to the private respondent 23
under Article 2179 of the New Civil Code, to wit:

. . . When the plaintiff's own negligence was the immediate

and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
[G.R. No. 140698. June 20, 2003]
ROGELIO ENGADA, petitioner, vs. HON. COURT OF APPEALS, Former
Fourteenth Division, Manila, and PEOPLE OF THE PHILIPPINES,
respondents.

In view of this, we believe that the demands of substantial justice are DECISION
satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
damage awarded by the respondent appellate court, except the QUISUMBING, J.:
award of P25,000.00 attorney's fees, shall be borne by private
respondent RMC; only the balance of 60% needs to be paid by the This petition for review seeks the reversal of the decision 1[1] dated May 31,
petitioners. The award of attorney's fees shall be borne exclusively 1999 of the Court of Appeals in CA-G.R. CR No. 18358, which affirmed with
by the petitioners.
1
32
modification the judgment2[2] dated August 25, 1994, of the Regional Trial
Court of Iloilo City, Branch 29, in Criminal Case No. 36223. The RTC found
petitioner guilty beyond reasonable doubt of simple imprudence resulting in
physical injuries and damage to property, and sentenced him to (a) suffer
imprisonment for one month and one day of arresto mayor, (b) pay private
complainant, Mrs. Sheila Seyan, the amount of fifty one thousand pesos
(P51,000) for the total destruction of the Toyota Tamaraw jeepney, and one
hundred ten thousand pesos (P110,000) for her hospital and medical
expenses, and (c) pay the costs of suit. The CA increased the prison term
imposed on petitioner to four months of arresto mayor.
The facts culled from the records are as follows:
On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was
driving a blue Toyota Tamaraw jeepney bound for Iloilo City. On board was
Sheila Seyan, the registered owner of the Tamaraw. While traversing the
road along Barangay Acquit, Barotac Nuevo, the Tamaraw passengers
allegedly saw from the opposite direction a speeding Isuzu pick-up, driven by
petitioner Rogelio Engada. The pick-up had just negotiated a hilly gradient on
the highway. When it was just a few meters away from the Tamaraw, the
Isuzu pick-ups right signal light flashed, at the same time, it swerved to its
left, encroaching upon the lane of the Tamaraw and headed towards a head-
on collision course with it. Seyan shouted at Iran to avoid the pick-up. Iran
swerved to his left but the pick-up also swerved to its right. Thus, the pick-up
collided with the Tamaraw, hitting the latter at its right front passenger side.
The impact caused the head and chassis of the Tamaraw to separate from
its body. Seyan was thrown out of the Tamaraw and landed on a ricefield.
The pick-up stopped diagonally astride the center of the road.
Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. 3[3] Seyan
was profusely bleeding from her nose and was in a state of shock with her
eyes closed. In the afternoon of the same day, November 29, 1989, she was
transferred to St. Pauls Hospital in Iloilo City where she was confined. Her
medical certificate revealed that she suffered a fracture on the right femur,
lacerated wound on the right foot, multiple contusions, abrasions, blunt
abdominal injury, and lacerations of the upper-lower pole of the right kidney. 4
[4] She was discharged from the hospital only on January 15, 1990.
2 5
3 6
4 7
Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw
jeepney ended up in the junk heap. Its total loss was computed at P80,000.
A criminal complaint for damage to property through reckless imprudence
with serious physical injuries was filed with the Municipal Trial Court of
Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran. 5[5]
Probable cause was found against petitioner, while the complaint against
Iran was dismissed.6[6]
Consequently, an Information was filed against petitioner charging him with
serious physical injuries and damage to property through reckless
imprudence, thus:
That on or about November 29, 1989, in the Municipality of Barotac Nuevo,
Province of Iloilo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused Rogelio Engada driving an Isuzu Pick-up
with Plate No. SAR 117 owned by the Land Bank of the Philippines, did then
and there wilfully, unlawfully and with reckless imprudence drive said pick-up
in a careless, reckless and imprudent manner with disregard of traffic laws
and regulations, and as a result of such negligent and reckless driving the
Isuzu Pick-up driven by the accused bumped a Toyota Tamaraw jeep with
Plate No. FBF 601 owned by Joelito and Sheila Seyan and driven by Edwin
Iran thereby causing damage to the Toyota Tamaraw in the amount of
P80,000.00 and serious physical injuries to Mrs. Sheila Seyan who was
riding said vehicle, the injuries barring complications will heal in more than 30
days.
CONTRARY TO LAW.7[7]
After trial, the court rendered on August 25, 1994 a decision, disposing as
follows:
WHEREFORE, the Court, finding the accused guilty beyond reasonable
doubt of Simple Imprudence resulting [in] physical injuries and damage to
property defined and penalized in Article 263, paragraph 4 and in relation
with Article 365, paragraph 2 of the Revised Penal Code, hereby sentences
the accused Rogelio Engada to suffer imprisonment of ONE (1) MONTH and
33
ONE (1) DAY of arresto mayor.
Accused is further ordered to pay complainant Mrs. Sheila Seyan the amount
of P51,000.00 for the total destruction of the Toyota Tamaraw Jeepney and
P110,000.00 for indemnification of hospital and medical expenses, and to
pay the cost of the suit.
SO ORDERED.8[8]
Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA
dismissed the appeal and affirmed with modification the trial courts decision,
thus:
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the
appealed decision is hereby AFFIRMED with modification as to the penalty
imposed upon the accused who is hereby sentenced to suffer imprisonment
of FOUR (4) MONTHS of arresto mayor.
SO ORDERED.9[9]
Petitioner filed a motion for reconsideration, but it was denied. Hence, the
instant petition, wherein petitioner raises the issue of:
WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF
APPEALS ARE SUPPORTED BY THE EVIDENCE OR BASED ON A
MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY
MISTAKEN INFERENCE SPECIFICALLY ON WHAT WAS THE
PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE ACT WAS IT. 10[10]
Petitioner claims innocence and seeks acquittal. He contends that in this
case we should relax the rule that only legal questions can be raised in a
petition for review under Rule 45 of the Rules of Court. According to him, the
Court of Appeals misapprehended the facts, and erred in its conclusion as to
the proximate cause of the collision. He insists that the Court of Appeals
erred when it found him negligent for occupying the lane of the Tamaraw
jeepney, and then failing to return to his original lane at the safest and
earliest opportunity.
8 Engada, was the proximate cause of the collision? This is the crux of the
9
10
Petitioner further contends that the CA failed to consider that he already
relayed his intention to go back to his lane by flashing the pick-ups right
signal light. He submits that at that moment Iran, the driver of the Tamaraw,
had no more reason to swerve to his left. Had Iran not swerved to the left,
according to petitioner, the collision would have been avoided. It was Iran
who was clearly negligent, says petitioner. Citing our ruling in McKee v.
Intermediate Appellate Court,11[11] petitioner avers that although his act of
occupying the Tamaraws lane was the initial act in the chain of events, Irans
swerving to the left after petitioner flashed his right turn signal, constituted a
sufficient intervening event, which proximately caused the eventual injuries
and damages to private complainant.
Petitioner also claims that the Court of Appeals erred when it found that the
pick-up approached the Tamaraw at a fast speed. He maintains that this was
not borne by the evidence on record.
The Office of the Solicitor General, as counsel for the state, counters that the
Court of Appeals did not err in convicting the accused, now petitioner herein.
Petitioners negligence was the proximate cause of the accident, according to
the OSG, for the following reasons: First, petitioner for no justifiable reason
occupied the opposite lane. Second, while on the wrong lane, petitioner was
driving the Isuzu pick-up fast, and he returned to his own lane only at the last
minute. This left Iran, the driver of the Tamaraw, with no opportunity to reflect
on the safest way to avoid the accident. Irans swerving to the left was his
reaction to petitioners wrongful act, which appropriately calls for the
application of the emergency rule. The rationale of this rule is that a person
who is confronted with a sudden emergency might have no time for thought,
and he must make a prompt decision based largely upon impulse or instinct.
Thus, he cannot be held to the same standard of conduct as one who had an
opportunity to reflect, even though it later appears that he made the wrong
decision. Clearly, under the emergency rule petitioner cannot shift the blame
to Iran, concludes the OSG.
As to petitioners claim that there was no evidence showing that the pick-up
was running very fast, the OSG avers that this is rebutted by the testimony of
Seyan and Iran who both testified that petitioner drove the pick-up at a fast
speed when it encroached on their lane immediately before the collision.
Did the Court of Appeals err in finding that the action of petitioner, Rogelio
present petition.
11
34
In our view, petitioners attempt to pin the blame on Edwin Iran, the driver of
the Tamaraw, for the vehicular collision is unfounded. Iran swerved to the left
only to avoid petitioners pick-up, which was already on a head to head
position going against Irans Tamaraw jeepney immediately before the
vehicles collided. This fact has been established by the evidence on record.
No convincing proof was adduced by petitioner that the driver of the
Tamaraw, Iran, could have avoided a head-on collision.
We note that petitioner admitted his Isuzu pick-up intruded into the lane of
the Tamaraw jeepney. Prosecution witness Nelson Alobin, one of those who
went to the scene of the incident immediately, testified that when he arrived
at the place where the collision took place, he saw the pick-up positioned
diagonally at the center of the road.12[12] Its head was towards the direction
of Barotac Nuevo and the rear tires were just a few inches beyond the center
of the lane.13[13] Moving backwards facing Barotac Nuevo, at two arms
length away from the pick-up, Alobin also saw a tire mark, 12 inches long
and located at the left side of the center line going to the right side. 14[14]
The above circumstance corroborates the testimony of both Seyan and Iran
that, immediately before the collision, the pick-up was not on its proper lane
but on the other lane (the left lane rather than the right) directly on collision
course with the Tamaraw jeepney. The tire mark reveals the short distance
between the two vehicles when the Isuzu pick-up attempted to return to its
proper lane.
It is a settled rule that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in an ordinary situation has the duty to see to it
that the road is clear and he should not proceed if he cannot do so in
safety.15[15] This rule is consistent with Section 41, paragraph (a) of R.A.
4136 as amended, otherwise known as The Land Transportation and Traffic
Code, which provides:
Sec. 41. Restrictions on overtaking and passing. (a) The driver of a vehicle
shall not drive to the left side of the center line of a highway in overtaking or
passing another vehicle proceeding in the same direction, unless such left
side is clearly visible and is free of oncoming traffic for a sufficient distance
12
13
14
15
ahead to permit such overtaking or passing to be made in safety.
In the present case, there was only a distance of 30 meters from the
Tamaraw jeepney when the Isuzu pick-up abandoned its lane and swerved
to the left of the center line.16[16] In addition, petitioner was running at a fast
clip while traversing this lane. This was testified to by Seyan and Iran,
unrebutted by petitioner. The resulting damage to the Tamaraw jeepney, at
the point where the head and chassis were separated from the body, bolsters
this conclusion that petitioner was speeding. In our view, petitioner was
negligent in several ways, and his negligence was the proximate cause of the
collision. In abandoning his lane, he did not see to it first that the opposite
lane was free of oncoming traffic and was available for a safe passage.
Further, after seeing the Tamaraw jeepney ahead, petitioner did not slow
down, contrary to the rule set in Batangas Laguna Tayabas Bus Co. v. IAC,17
[17] thus:
[O]r if, after attempting to pass, the driver of the overtaking vehicle finds that
he cannot make the passage in safety, the latter must slacken his speed so
as to avoid the danger of a collision, even bringing his car to a stop if
necessary.
For failing to observe the duty of diligence and care imposed on drivers of
vehicles abandoning their lane, petitioner must be held liable.
Iran could not be faulted when in his attempt to avoid the pick-up, he
swerved to his left. Petitioners acts had put Iran in an emergency situation
which forced him to act quickly. An individual who suddenly finds himself in a
situation of danger and is required to act without much time to consider the
best means that may be adopted to avoid the impending danger, is not guilty
of negligence if he fails to undertake what subsequently and upon reflection
may appear to be a better solution, unless the emergency was brought by his
own negligence.18[18]
Petitioner tries to extricate himself from liability by invoking the doctrine of
last clear chance. He avers that between him and Iran, the latter had the last
clear chance to avoid the collision, hence Iran must be held liable.
16
17
18
35
The doctrine of last clear chance states that a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent
acts of his opponent, is considered in law solely responsible for the
consequences of the accident.19[19] But as already stated on this point, no
convincing evidence was adduced by petitioner to support his invocation of
the abovecited doctrine. Instead, what has been shown is the presence of an
emergency and the proper application of the emergency rule. Petitioners act
of swerving to the Tamaraws lane at a distance of 30 meters from it and
driving the Isuzu pick-up at a fast speed as it approached the Tamaraw,
denied Iran time and opportunity to ponder the situation at all. There was no G.R. No. 153076             June 21, 2007
clear chance to speak of. Accordingly, the Court of Appeals did not err in
holding petitioner responsible for the vehicular collision and the resulting LAPANDAY AGRICULTURAL and DEVELOPMENT CORPORATION
damages, including the injuries suffered by Mrs. Sheila Seyan and the total (LADECO), HENRY BERENGUEL, and APOLONIO R. DEOCAMPO,
loss of the Tamaraw jeepney. It also did not err in imposing on petitioner the petitioners,
sentence of four (4) months of arresto mayor.20[20] vs.
MICHAEL RAYMOND ANGALA, respondent.
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed
decision of the Court of Appeals in CA-G.R. CR No. 18358 is AFFIRMED. DECISION
Costs against petitioner.
CARPIO, J.:
SO ORDERED.
The Case

Before the Court is a petition for review1 assailing the 25 July 2001 Decision2
and 11 March 2002 Resolution3 of the Court of Appeals in CA-G.R. CV No.
51134.

The Antecedent Facts

On 4 May 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-
903 driven by Apolonio Deocampo (Deocampo) bumped into a 1958 Chevy
pick-up with plate no. MAM-475 owned by Michael Raymond Angala
(respondent) and driven by Bernulfo Borres (Borres). Lapanday Agricultural
and Development Corporation (LADECO) owned the crewcab which was
assigned to its manager Manuel Mendez (Mendez). Deocampo was the
driver and bodyguard of Mendez. Both vehicles were running along Rafael
Castillo St., Agdao, Davao City heading north towards Lanang, Davao City.
The left door, front left fender, and part of the front bumper of the pick-up
were damaged.

19 Respondent filed an action for Quasi-Delict, Damages, and Attorney’s Fees

against LADECO, its administrative officer Henry Berenguel 4 (Berenguel) and
20 Deocampo. Respondent alleged that his pick-up was slowing down to about
36
five to ten kilometers per hour (kph) and was making a left turn preparatory to
turning south when it was bumped from behind by the crewcab which was
running at around 60 to 70 kph. The crewcab stopped 21 meters from the
point of impact. Respondent alleged that he heard a screeching sound before
the impact. Respondent was seated beside the driver and was looking at the
speedometer when the accident took place. Respondent testified that Borres
made a signal because he noticed a blinking light while looking at the
speedometer.5
Respondent sent a demand letter to LADECO for the payment of the
damages he incurred because of the accident but he did not receive any
reply. Thus, respondent filed the case against LADECO, Berenguel, and
Deocampo.
Deocampo alleged that the pick-up and the crewcab he was driving were
both running at about 40 kph. The pick-up was running along the outer lane.
The pick-up was about 10 meters away when it made a U-turn towards the
left. Deocampo testified that he did not see any signal from the pick-up. 6
Deocampo alleged that he tried to avoid the pick-up but he was unable to
avoid the collision. Deocampo stated that he did not apply the brakes
because he knew the collision was unavoidable. Deocampo admitted that he
stepped on the brakes only after the collision.
The Ruling of the Trial Court
7
In its 3 March 1995 Decision, the Regional Trial Court of Davao City, Branch
15 (trial court) ruled:
WHEREFORE, judgment is hereby rendered ordering the
defendants LADECO and Apolonio Deocampo to solidarily pay the
plaintiffs the following sums:
1. Twenty three thousand two hundred (P23,200.00) pesos
as actual damages.
2. Ten thousand (P10,000.00) pesos as moral damages.
3. Ten thousand (P10,000.00) pesos as attorney’s fees.
4. Costs of suit.
SO ORDERED.8
The trial court found that the crewcab was running very fast while following
the pick-up and that the crewcab’s speed was the proximate cause of the
accident. The trial court observed that the crewcab stopped 21 meters away
from the point of impact despite Deocampo’s claim that he stepped on the
brakes moments after the collision. The trial court ruled that Deocampo had
the last opportunity to avoid the accident.
The trial court found that Berenguel was not liable because he was not the
owner of the crewcab.
LADECO and Deocampo (petitioners)9 filed a motion for reconsideration. The
trial court denied petitioners’ motion in its 13 June 1995 Order. 10
Petitioners filed an appeal before the Court of Appeals.
The Ruling of the Court of Appeals
The Court of Appeals affirmed in toto the trial court’s decision.
The Court of Appeals sustained the finding of the trial court that Deocampo
was negligent. The Court of Appeals applied the doctrine of last clear chance
and ruled that Deocampo had the responsibility of avoiding the pick-up.
The Court of Appeals also sustained the solidary liability of LADECO and
Deocampo. The Court of Appeals ruled that under Article 2180 of the Civil
Code, the negligence of the driver is presumed to be the negligence of the
owner of the vehicle.
The dispositive portion of the Court of Appeals’ Decision reads:
WHEREFORE, premises considered, the appeal is DISMISSED for
lack of merit, and the assailed Decision of the Court a quo in Civil
Case No. 22067-93 is AFFIRMED in toto. Costs against defendants-
appellants.
SO ORDERED.11
Petitioners filed a motion for reconsideration. In its 11 March 2002
Resolution, the Court of Appeals denied the motion for lack of merit.
Hence, the petition before this Court.
37
 The Issues
The issues before the Court are the following:
1. Whether the provisions of Section 45(b) of Republic Act No.
413612 (RA 4136) and Article 2185 of the Civil Code apply to this
case; and
2. Whether respondent is entitled to the damages awarded.
The Ruling of this Court
The petition is partly meritorious.
Both Drivers are Negligent
Both the trial court and the Court of Appeals found that Deocampo was at
fault because he was driving very fast prior to the collision. The Court of
Appeals sustained the trial court’s finding that Deocampo was running more
than the normal cruising speed. Both the trial court and the Court of Appeals
noted that the crewcab stopped 21 meters away from the point of impact.
Deocampo admitted that he stepped on the brakes only after the collision.
Petitioners allege that Borres did not take the proper lane before executing
the U-turn. Petitioners allege that Borres violated Section 45(b) of RA 4136
and it was his recklessness that was the proximate cause of the accident.
Section 45(b) of RA 4136 states:
Sec. 45. Turning at intersections. x x x
(b) The driver of a vehicle intending to turn to the left shall approach
such intersection in the lane for traffic to the right of and nearest to
the center line of the highway, and, in turning, shall pass to the left of
the center of the intersection, except that, upon highways laned for
traffic and upon one-way highways, a left turn shall be made from the
left lane of traffic in the direction in which the vehicle is proceeding.
Petitioners further allege that since Borres was violating a traffic rule at the
time of the accident, respondent and Borres were the parties at fault.
Petitioners cite Article 2185 of the Civil Code, thus:
Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.
We rule that both parties were negligent in this case. Borres was at the outer
lane when he executed a U-turn. Following Section 45(b) of RA 4136, Borres
should have stayed at the inner lane which is the lane nearest to the center
of the highway. However, Deocampo was equally negligent. Borres slowed
down the pick-up preparatory to executing the U-turn. Deocampo should
have also slowed down when the pick-up slowed down. Deocampo admitted
that he noticed the pick-up when it was still about 20 meters away from him. 13
Vehicular traffic was light at the time of the incident. The pick-up and the
crewcab were the only vehicles on the road.14 Deocampo could have avoided
the crewcab if he was not driving very fast before the collision, as found by
both the trial court and the Court of Appeals. We sustain this finding since
factual findings of the Court of Appeals affirming those of the trial court are
conclusive and binding on this Court.15 Further, the crewcab stopped 21
meters from the point of impact. It would not have happened if Deocampo
was not driving very fast.
Doctrine of Last Clear Chance Applies
Since both parties are at fault in this case, the doctrine of last clear chance
applies.
The doctrine of last clear chance states that where both parties are negligent
but the negligent act of one is appreciably later than that of the other, or
where it is impossible to determine whose fault or negligence caused the
loss, the one who had the last clear opportunity to avoid the loss but failed to
do so is chargeable with the loss.16 In this case, Deocampo had the last clear
chance to avoid the collision. Since Deocampo was driving the rear vehicle,
he had full control of the situation since he was in a position to observe the
vehicle in front of him.17 Deocampo had the responsibility of avoiding
bumping the vehicle in front of him. 18 A U-turn is done at a much slower
speed to avoid skidding and overturning, compared to running straight
ahead.19 Deocampo could have avoided the vehicle if he was not driving very
fast while following the pick-up. Deocampo was not only driving fast, he also
admitted that he did not step on the brakes even upon seeing the pick-up. He
only stepped on the brakes after the collision.
Petitioners are Solidarily Liable
LADECO alleges that it should not be held jointly and severally liable with
38
Deocampo because it exercised due diligence in the supervision and
selection of its employees. Aside from this statement, LADECO did not
proffer any proof to show how it exercised due diligence in the supervision
and selection of its employees. LADECO did not show its policy in hiring its
drivers, or the manner in which it supervised its drivers. LADECO failed to
substantiate its allegation that it exercised due diligence in the supervision
and selection of its employees.
Hence, we hold LADECO solidarily liable with Deocampo.
Respondent is Entitled to Moral Damages
We sustain the award of moral damages. Moral damages are awarded to
allow a plaintiff to obtain means, diversion, or amusement that will serve to
alleviate the moral suffering he has undergone due to the defendant’s
culpable action.20 The trial court found that respondent, who was on board
the pick-up when the collision took place, suffered shock, serious anxiety,
and fright when the crewcab bumped his pick-up. We sustain the trial court
and the Court of Appeals in ruling that respondent sufficiently showed that he
suffered shock, serious anxiety, and fright which entitle him to moral
damages.
Both the trial court and the Court of Appeals failed to give any justification for
the award of attorney’s fees. Awards of attorney’s fees must be based on
findings of fact and of law and stated in the decision of the trial court. 21
Further, no premium should be placed on the right to litigate. 22 Hence, we
delete the award of attorney’s fees.
WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March 2002
Resolution of the Court of Appeals in CA-G.R. CV No. 51134 with
MODIFICATION by deleting the award of attorney’s fees.
SO ORDERED.
G.R. No. L-29745 June 4, 1973
MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.
Jose W. Diokno for petitioner.
Jose G. Gatchalian for respondents.
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as follows:
The Realistic Institute, admittedly owned and operated by
defendant-appellee Mercedes M. Teague was a vocational
school for hair and beauty culture situated on the second
floor of the Gil-Armi Building, a two-storey, semi-concrete
edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the
corner of Quezon Boulevard and Soler Street, Quiapo,
Manila. The said second floor was unpartitioned, had a total
area of about 400 square meters, and although it had only
one stairway, of about 1.50 meters in width, it had eight
windows, each of which was provided with two fire-escape
ladders (Exh. "4"), and the presence of each of said fire-exits
was indicated on the wall (Exh. "5").
At about four o'clock in the afternoon of October 24, 1955, a
fire broke out in a store for surplus materials located about
ten meters away from the institute. Soler Street lay between
that store and the institute. Upon seeing the fire, some of the
students in the Realistic Institute shouted 'Fire! Fire!' and
thereafter, a panic ensued. Four instructresses and six
assistant instructress of the Institute were present and they,
together with the registrar, tried to calm down the students,
who numbered about 180 at the time, telling them not to be
39
 afraid because the Gil-Armi Building would not get burned as
it is made of concrete, and that the fire was anyway, across
the street. They told the students not to rush out but just to
go down the stairway two by two, or to use the fire-escapes.
Mrs. Justitia Prieto, one of the instructresses, took to the
microphone so as to convey to the students the above
admonitions more effectively, and she even slapped three
students in order to quiet them down. Miss Frino Meliton, the
registrar, whose desk was near the stairway, stood up and
tried with outstretched arms to stop the students from
rushing and pushing their way to the stairs. The panic,
however, could not be subdued and the students, with the
exception of the few who made use of fire-escapes kept on
rushing and pushing their way through the stairs, thereby
causing stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after
the panic was over, four students, including Lourdes
Fernandez, a sister of plaintiffs-appellants, were found dead
and several others injured on account of the stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of lacerations in both
eyes and on the upper lip, contused abrasions in different parts of the body,
internal hemorrhage and fractures in the second and third right ribs. The
cause of death, according to the autopsy report, was "Shock due to traumatic
fractures of the ribs with perinephric hematoma and lacerations of the
conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for damages against
Mercedes M. Teague as owner and operator of Realistic Institute. The Court
of First Instance of Manila found for the defendant and dismissed the case.
The plaintiffs thereupon appealed to the Court of Appeals, which by a divided
vote of 3 to 2 (a special division of five members having been constituted)
rendered a judgment of reversal and sentenced the defendant to pay
damages to the plaintiffs in the sum of P11,000.00, plus interest at the legal
rate from the date the complaint was filed.
The case came up to this Court on a petition for review filed by the defendant
below.
The decision of the appellate court declared that the defendant, hereinafter to
be referred to as the petitioner, was negligent and that such negligence was
the proximate cause of the death of Lourdes Fernandez. This finding of
negligence is based primarily on the fact that the provision of Section 491 Of
the Revised Ordinances of the City of Manila had not been complied with in
connection with the construction and use of the Gil-Armi building where the
petitioner's vocational school was housed. This provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. — ... All
buildings and separate sections of buildings or buildings
otherwise known as accessorias having less than three
stories, having one or more persons domiciled therein either
temporarily or permanently, and all public or quasi-public
buildings having less than three stories, such as hospitals,
sanitarium, schools, reformatories, places of human
detention, assembly halls, clubs, restaurants or panciterias,
and the like, shall be provided with at least two unobstructed
stairways of not less than one meter and twenty centimeters
in width and an inclination of not less than forty degrees from
the perpendicular, in case of large buildings more than two
stairways shall likewise be provided when required by the
chief of the fire department, said stairways shall be placed
as far apart as possible.
The alleged violation of the ordinance above-quoted consisted in the fact that
the second storey of the Gil-Armi building had only one stairway, 1.5 meters
wide, instead of two of at least 1.2 meters each, although at the time of the
fire the owner of the building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was an act of
negligence and that such negligence was the proximate cause of the death
of Lourdes Fernandez, reliance is based on a number of authorities in the
American jurisdiction, thus: .
The mere fact of violation of a statute is not sufficient basis
for an inference that such violation was the proximate cause
of the injury complained. However, if the very injury has
happened which was intended to be prevented by the
statute, it has been held that violation of the statute will be
deemed to be proximate cause of the injury. (65 C.J.S.
1156).
The generally accepted view is that violation of a statutory
duty constitutes negligence, negligence as a matter or law,
40
or, according to the decisions on the question, negligence
per se for the reason that non-observance of what the
legislature has prescribed as a suitable precaution is failure
to observe that care which an ordinarily prudent man would
observe, and, when the state regards certain acts as so
liable to injure others as to justify their absolute prohibition,
doing the forbidden act is a breach of duty with respect to
those who may be injured thereby; or, as it has been
otherwise expressed, when the standard of care is fixed by
law, failure to conform to such standard is negligence,
negligence per se or negligence in and of itself, in the
absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the
act or omission constituting such violation would have been
regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason
to anticipate that injury would result from such violation. ....
(65 C.J.S. pp. 623-628).
But the existence of an ordinance changes the situation. If a
driver causes an accident by exceeding the speed limit, for
example, do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited.
Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance
was intended to avoid it brings about the harm which the
ordinance was intended to prevent, it is a legal cause of the
harm. This comes only to saying that in such circumstances
the law has no reason to ignore the causal relation which
obviously exists in fact. The law has excellent reason to
recognize it, since it is the very relation which the makers of
the ordinance anticipated. This court has applied these
principles to speed limits and other regulations of the
manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
... However, the fact that other happenings causing or
contributing toward an injury intervened between the
violation of a statute or ordinance and the injury does not
necessarily make the result so remote that no action can be
maintained. The test is to be found not in the number of
intervening events or agents, but in their character and in the
natural and probable connection between the wrong done
and the injurious consequence. The general principle is that
the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another
agency if the occurrence of the accident, in the manner in
which it happened, was the very thing which the statute or
ordinance was intended to Prevent. (38 Am Jur 841).
The petitioner has raised a number of issues. The first is that Section 491 of
the Revised Ordinances of the City of Manila refers to public buildings and
hence did not apply to the Gil-Armi building which was of private ownership.
It will be noted from the text of the ordinance, however, that it is not
ownership which determines the character of buildings subject to its
requirements, but rather the use or the purpose for which a particular building
is utilized. Thus the same may be privately owned, but if it is devoted to any
one of the purposes mentioned in the ordinance — for instance as a school,
which the Realistic Institute precisely was — then the building is within the
coverage of the ordinance. Indeed the requirement that such a building
should have two (2) separate stairways instead of only one (1) has no
relevance or reasonable relation to the fact of ownership, but does have such
relation to the use or purpose for which the building is devoted.
It is next contended that the obligation to comply with the ordinance devolved
upon the owners of the building and therefore it is they and not the petitioner
herein, who is a mere lessee, who should be liable for the violation. The
contention ignores the fact that it was the use of the building for school
purposes which brought the same within the coverage of the ordinance; and
it was the petitioner and not the owners who was responsible for such use.
The next issue, indeed the basic one, raised by the petitioner is whether or
not the failure to comply with the requirement of the ordinance was the
proximate cause of the death of Lourdes Fernandez. The case of Villanueva
Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is
cited in support of the contention that such failure was not the proximate
cause. It is there stated by this Court:
The proximate legal cause is that acting first and producing
the injury, either immediately or by settling other events in
motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately affecting the injury as a natural and probable
result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
41
 default that an injury to some person might probably result have been no overcrowding in the single stairway if there had not been a fire
therefrom. in the neighborhood which caused the students to panic and rush headlong
for the stairs in order to go down. But it was precisely such contingencies or
Having in view the decision just quoted, the petitioner relates the chain of event that the authors of the ordinance had in mind, for under normal
events that resulted in the death of Lourdes Fernandez as follows: (1) conditions one stairway would be adequate for the occupants of the building.
violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!, Thus, as stated in 38 American Jurisprudence, page 841: "The general
Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death. principle is that the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another agency if the
occurrence of the accident, in the manner in which it happened, was the very
As thus projected the violation of the ordinance, it is argued, was only a
thing which the statute or ordinance was intended to prevent." To consider
remote cause, if at all, and cannot be the basis of liability since there
the violation of the ordinance as the proximate cause of the injury does not
intervened a number of independent causes which produced the injury
portray the situation in its true perspective; it would be more accurate to say
complained of. A statement of the doctrine relied upon is found in Manila
that the overcrowding at the stairway was the proximate cause and that it
Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing
was precisely what the ordinance intended to prevent by requiring that there
Corpus Juris said:
be two stairways instead of only one. Under the doctrine of the cases cited
by the respondents, the principle of proximate cause applies to such
A prior and remote cause cannot be made the basis of an violation.
action if such remote cause did nothing more than furnish
the condition or give rise to the occasion by which the injury
A procedural point mentioned by the petitioner is that the complaint did not
was made possible, if there intervened between such prior or
specifically allege that the ordinance in question had been violated. The
remote cause and the injury a distinct, successive unrelated,
violation, however, as an act of negligence which gave rise to liability, was
and efficient cause of the injury, even though such injury
sufficiently comprehended within paragraph 7 of the complaint, which reads: .
would not have happened but for such condition or occasion.
If no danger existed in the condition except because of the
independent cause, such condition was not the proximate Par. 7. That the death of Lourdes Fernandez was due to the
cause. And if an independent negligent act or defective gross negligence of the defendant who failed to exercise due
condition sets into operation the circumstances which result care and diligence for the safety of its students in not
in injury because of the prior defective condition, such providing the building with adequate fire exits and in not
subsequent act or condition is the proximate cause. (45 C.J. practicing fire drill exercises to avoid the stampede, aside
p. 931.) from the fact that the defendant did not have a permit to use
the building as a school-house.
According to the petitioner "the events of fire, panic and stampede were
independent causes with no causal connection at all with the violation of the The decision appealed from is affirmed, with costs.
ordinance." The weakness in the argument springs from a faulty juxtaposition
of the events which formed a chain and resulted in the injury. It is true that
the petitioner's non-compliance with the ordinance in question was ahead of
and prior to the other events in point of time, in the sense that it was
coetaneous with its occupancy of the building. But the violation was a
continuing one, since the ordinance was a measure of safety designed to
prevent a specific situation which would pose a danger to the occupants of
the building. That situation was undue overcrowding in case it should
become necessary to evacuate the building, which, it could be reasonably
foreseen, was bound to happen under emergency conditions if there was
only one stairway available. It is true that in this particular case there would

42
[G.R. No. 130003. October 20, 2004]

JONAS AONUEVO, petitioner vs. HON. COURT OF APPEALS and

JEROME VILLAGRACIA, respondent

DECISION

TINGA, J.:

The bicycle provides considerable speed and freedom of movement to the

rider. It derives a certain charm from being unencumbered by any enclosure,
affording the cyclist the perception of relative liberty. It also carries some
obvious risks on the part of the user and has become the subject of
regulation, if not by the government, then by parental proscription.

The present petition seeks to bar recovery by an injured cyclist of damages

from the driver of the car which had struck him. The argument is hinged on
the cyclists failure to install safety devices on his bicycle. However, the lower
courts agreed that the motorist himself caused the collision with his own
negligence. The facts are deceptively simple, but the resolution entails
thorough consideration of fundamental precepts on negligence.

The present petition raises little issue with the factual findings of the Regional
Trial Court (RTC), Branch 160, of Pasig City, as affirmed by the Court of
Appeals. Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ), liable
for the damages for the injuries sustained by the cyclist, Jerome Villagracia
(Villagracia). Instead, the petition hinges on a sole legal question,
characterized as novel by the petitioner: whether Article 2185 of the New
Civil Code, which presumes the driver of a motor vehicle negligent if he was
violating a traffic regulation at the time of the mishap, should apply by
analogy to non-motorized vehicles.[1]

As found by the RTC, and affirmed by the Court of Appeals, the accident in
question occurred on 8 February 1989, at around nine in the evening, at the
intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a
city). Villagracia was traveling along Boni Avenue on his bicycle, while
Aonuevo, traversing the opposite lane was driving his Lancer car with plate
number PJJ 359. The car was owned by Procter and Gamble Inc., the

43
employer of Aonuevos brother, Jonathan. Aonuevo was in the course of
making a left turn towards Libertad Street when the collision occurred.
Villagracia sustained serious injuries as a result, which necessitated his
hospitalization several times in 1989, and forced him to undergo four (4)
operations.
On 26 October 1989, Villagracia instituted an action for damages against
Procter and Gamble Phils., Inc. and Aonuevo before the RTC.[2] He had also
filed a criminal complaint against Aonuevo before the Metropolitan Trial Court
of Mandaluyong, but the latter was subsequently acquitted of the criminal
charge.[3] Trial on the civil action ensued, and in a Decision dated 9 March
1990, the RTC rendered judgment against Procter and Gamble and
Aonuevo, ordering them to pay Villagracia the amounts of One Hundred Fifty
Thousand Pesos (P150, 000.00). for actual damages, Ten Thousand Pesos
(P10,000.00) for moral damages, and Twenty Thousand Pesos (P20,000.00)
for attorneys fees, as well as legal costs.[4] Both defendants appealed to the
Court of Appeals.
In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division
affirmed the RTC Decision in toto[6]. After the Court of Appeals denied the
Motion for Reconsideration in a Resolution[7] dated 22 July 1997, Procter
and Gamble and Aonuevo filed their respective petitions for review with this
Court. Procter and Gambles petition was denied by this Court in a Resolution
dated 24 November 1997. Aonuevos petition,[8] on the other hand, was
given due course,[9] and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual
findings of the RTC. Among them: that it was Aonuevos vehicle which had
struck Villagracia;[10] that Aonuevos vehicle had actually hit Villagracias left
mid-thigh, thus causing a comminuted fracture;[11] that as testified by
eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo was
umaarangkada, or speeding as he made the left turn into Libertad;[12] that
considering Aonuevos claim that a passenger jeepney was obstructing his
path as he made the turn. Aonuevo had enough warning to control his speed;
[13] and that Aonuevo failed to exercise the ordinary precaution, care and
diligence required of him in order that the accident could have been avoided.
[14] Notably, Aonuevo, in his current petition, does not dispute the findings of
tortious conduct on his part made by the lower courts, hinging his appeal
instead on the alleged negligence of Villagracia. Aonuevo proffers no
exculpatory version of facts on his part, nor does he dispute the conclusions
made by the RTC and the Court of Appeals. Accordingly, the Court, which is
not a trier of facts,[15] is not compelled to review the factual findings of the
lower courts, which following jurisprudence have to be received with respect
and are in fact generally binding.[16]
Notwithstanding, the present petition presents interesting questions for
resolution. Aonuevos arguments are especially fixated on a particular
question of law: whether Article 2185 of the New Civil Code should apply by
analogy to non-motorized vehicles.[17] In the same vein, Aonuevo insists
that Villagracias own fault and negligence serves to absolve the former of
any liability for damages.
Its is easy to discern why Aonuevo chooses to employ this line of argument.
Aonuevo points out that Villagracias bicycle had no safety gadgets such as a
horn or bell, or headlights, as invoked by a 1948 municipal ordinance.[18]
Nor was it duly registered with the Office of the Municipal Treasurer, as
required by the same ordinance. Finally, as admitted by Villagracia, his
bicycle did not have foot brakes.[19] Before this Court, Villagracia does not
dispute these allegations, which he admitted during the trial, but directs our
attention instead to the findings of Aonuevos own negligence.[20] Villagracia
also contends that, assuming there was contributory negligence on his part,
such would not exonerate Aonuevo from payment of damages. The Court of
Appeals likewise acknowledged the lack of safety gadgets on Villagracias
bicycle, but characterized the contention as off-tangent and insufficient to
obviate the fact that it was Aonuevos own negligence that caused the
accident.[21]
Aonuevo claims that Villagracia violated traffic regulations when he failed to
register his bicycle or install safety gadgets thereon. He posits that Article
2185 of the New Civil Code applies by analogy. The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the mishap
he was violating any traffic regulation.
The provision was introduced for the first time in this jurisdiction with the
adoption in 1950 of the New Civil Code.[22] Its applicability is expressly
qualified to motor vehicles only, and there is no ground to presume that the
law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all
types of vehicles[23]. He points out that modern-day travel is more complex
now than when the Code was enacted, the number and types of vehicles
now in use far more numerous than as of then. He even suggests that at the
time of the enactment of the Code, the legislators must have seen that only
motor vehicles were of such public concern that they had to be specifically
44
mentioned, yet today, the interaction of vehicles of all types and nature has
inescapably become matter of public concern so as to expand the application
of the law to be more responsive to the times.[24]
What Aonuevo seeks is for the Court to amend the explicit command of the
legislature, as embodied in Article 2185, a task beyond the pale of judicial
power. The Court interprets, and not creates, the law. However, since the
Court is being asked to consider the matter, it might as well examine whether
Article 2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-
motorized vehicles ranging from human-powered contraptions on wheels
such as bicycles, scooters, and animal-drawn carts such as calesas and
carromata. These modes of transport were even more prevalent on the roads
of the 1940s and 1950s than they are today, yet the framers of the New Civil
Code chose then to exclude these alternative modes from the scope of
Article 2185 with the use of the term motorized vehicles. If Aonuevo seriously
contends that the application of Article 2185 be expanded due to the greater
interaction today of all types of vehicles, such argument contradicts historical
experience. The ratio of motorized vehicles as to non-motorized vehicles, as
it stood in 1950, was significantly lower than as it stands today. This will be
certainly affirmed by statistical data, assuming such has been compiled,
much less confirmed by persons over sixty. Aonuevos characterization of a
vibrant intra-road dynamic between motorized and non-motorized vehicles is
more apropos to the past than to the present.
There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable
today. He premises that the need for the distinction between motorized and
non-motorized vehicles arises from the relative mass of number of these
vehicles. The more pertinent basis for the segregate classification is the
difference in type of these vehicles. A motorized vehicle operates by reason
of a motor engine unlike a non-motorized vehicle, which runs as a result of a
direct exertion by man or beast of burden of direct physical force. A
motorized vehicle, unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-motorized vehicles. At
the same time, motorized vehicles are more capable in inflicting greater
injury or damage in the event of an accident or collision. This is due to a
combination of factors peculiar to the motor vehicle, such as the greater
speed, its relative greater bulk of mass, and greater combustability due to the
fuels that they use.
There long has been judicial recognition of the peculiar dangers posed by the
motor vehicle. As far back as 1912, in the U.S. v. Juanillo[25], the Court has
recognized that an automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, and beyond doubt it is highly dangerous
when used on country roads, putting to great hazard the safety and lives of
the mass of the people who travel on such roads.[26] In the same case, the
Court emphasized:
A driver of an automobile, under such circumstances, is required to use a
greater degree of care than drivers of animals, for the reason that the
machine is capable of greater destruction, and furthermore, it is absolutely
under the power and control of the driver; whereas, a horse or other animal
can and does to some extent aid in averting an accident. It is not pleasant to
be obliged to slow down automobiles to accommodate persons riding,
driving, or walking. It is probably more agreeable to send the machine along
and let the horse or person get out of the way in the best manner possible;
but it is well to understand, if this course is adopted and an accident occurs,
that the automobile driver will be called upon to account for his acts. An
automobile driver must at all times use all the care and caution which a
careful and prudent driver would have exercised under the circumstances.
[27]
American jurisprudence has had occasion to explicitly rule on the relationship
between the motorist and the cyclist. Motorists are required to exercise
ordinary or reasonable care to avoid collision with bicyclists.[28] While the
duty of using ordinary care falls alike on the motorist and the rider or driver of
a bicycle, it is obvious, for reasons growing out of the inherent differences in
the two vehicles, that more is required from the former to fully discharge the
duty than from the latter.[29]
The Code Commission was cognizant of the difference in the natures and
attached responsibilities of motorized and non-motorized vehicles. Art. 2185
was not formulated to compel or ensure obeisance by all to traffic rules and
regulations. If such were indeed the evil sought to be remedied or guarded
against, then the framers of the Code would have expanded the provision to
include non-motorized vehicles or for that matter, pedestrians. Yet, that was
not the case; thus the need arises to ascertain the peculiarities attaching to a
motorized vehicle within the dynamics of road travel. The fact that there has
long existed a higher degree of diligence and care imposed on motorized
vehicles, arising from the special nature of motor vehicle, leads to the
inescapable conclusion that the qualification under Article 2185 exists
precisely to recognize such higher standard. Simply put, the standards
applicable to motor vehicle are not on equal footing with other types of
vehicles.
45
Thus, we cannot sustain the contention that Art. 2185 should apply to non-
motorized vehicles, even if by analogy. There is factual and legal basis that
necessitates the distinction under Art. 2185, and to adopt Aonuevos thesis
would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to
Villagracia, this should not preclude any possible finding of negligence on his
part. While the legal argument as formulated by Aonuevo is erroneous, his
core contention that Villagracia was negligent for failure to comply with traffic
regulations warrants serious consideration, especially since the imputed
negligent acts were admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission of that diligence
which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place.[30] However, the
existence of negligence in a given case is not determined by the personal
judgment of the actor in a given situation, but rather, it is the law which
determines what would be reckless or negligent.[31]
Aonuevo, asserts that Villagracia was negligent as the latter had
transgressed a municipal ordinance requiring the registration of bicycles and
the installation of safety devices thereon. This view finds some support if
anchored on the long standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty
constitutes negligence, negligence as a matter of law, or negligence per se.
[32] In Teague vs. Fernandez,[33] the Court cited with approval American
authorities elucidating on the rule:
The mere fact of violation of a statute is not sufficient basis for an inference
that such violation was the proximate cause of the injury complained.
However, if the very injury has happened which was intended to be
prevented by the statute, it has been held that violation of the statute will be
deemed to be the proximate cause of the injury. (65 C.J.S. 1156)
The generally accepted view is that violation of a statutory duty constitutes
negligence, negligence as a matter of law, or, according to the decisions on
the question, negligence per se, for the reason that non-observance of what
the legislature has prescribed as a suitable precaution is failure to observe
that care which an ordinarily prudent man would observe, and, when the
state regards certain acts as so liable to injure others as to justify their
absolute prohibition, doing the forbidden act is a breach of duty with respect
to those who may be injured thereby; or, as it has been otherwise expressed,
when the standard of care is fixed by law, failure to conform to such standard
is negligence, negligence per se or negligence in and of itself, in the absence
of a legal excuse. According to this view it is immaterial, where a statute has
been violated, whether the act or omission constituting such violation would
have been regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason to anticipate
that injury would result from such violation. x x x. (65 C.J.S. pp.623-628)
But the existence of an ordinance changes the situation. If a driver causes an
accident by exceeding the speed limit, for example, we do not inquire
whether his prohibited conduct was unreasonably dangerous. It is enough
that it was prohibited. Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance was intended to
avoid it brings about the harm which the ordinance was intended to prevent,
it is a legal cause of the harm. This comes only to saying that in such
circumstances the law has no reason to ignore the causal relation which
obviously exists in fact. The law has excellent reason to recognize it, since it
is the very relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations of the
manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
x x x However, the fact that other happenings causing or contributing toward
an injury intervened between the violation of a statute or ordinance and the
injury does not necessarily make the result so remote that no action can be
maintained. The test is to be found not in the number of intervening events or
agents, but in their character and in the natural and probable connection
between the wrong done and the injurious consequence. The general
principle is that the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another agency if the
occurrence of the accident, in the manner in which it happened, was the very
thing which the statute or ordinance was intended to prevent. (38 Am Jur
841)[34]
In Teague, the owner of a vocational school stricken by a fire resulting in
fatalities was found negligent, base on her failure to provide adequate fire
exits in contravention of a Manila city ordinance.[35] In F.F. Cruz and Co.,
Inc. v. Court of Appeals[36], the failure of the petitioner to construct a firewall
in accordance with city ordinances sufficed to support a finding of
negligence.[37] In Cipriano v. Court of Appeals, [38]the Court found that the
failure of the petitioner to register and insure his auto rustproofing shop in
accordance with the statute constituted negligence per se, thus holding him
liable for the damages for the destruction by fire of a customers vehicle
garaged therein.
46
Should the doctrine of negligence per se apply to Villagracia, resulting from
his violation of an ordinance? It cannot be denied that the statutory purpose
for requiring bicycles to be equipped with headlights or horns is to promote
road safety and to minimize the occurrence of road accidents involving
bicycles. At face value, Villagracias mishap was precisely the danger sought
to be guarded against by the ordinance he violated. Aonuevo argues that
Villagracias violation should bar the latters recovery of damages, and a
simplistic interpretation of negligence per se might vindicate such an
argument.
But this is by no means a simple case. There is the fact which we consider
as proven, that Aonuevo was speeding as he made the left turn, and such
negligent act was the proximate cause of the accident. This reckless
behavior would have imperiled anyone unlucky enough within the path of
Aonuevos car as it turned into the intersection, whether they are fellow
motorists, pedestrians, or cyclists. We are hard put to conclude that
Villagracia would have avoided injury had his bicycle been up to par with
safety regulations, especially considering that Aonuevo was already
speeding as he made the turn, or before he had seen Villagracia. Even
assuming that Aonuevo had failed to see Villagracia because the bicycle was
not equipped with headlights, such lapse on the cyclists part would not have
acquitted the driver of his duty to slow down as he proceeded to make the
left turn.
This court has appreciated that negligence per se, arising from the mere
violation of a traffic statute, need not be sufficient in itself in establishing
liability for damages. In Sanitary Steam Laundry, Inc. v. Court of Appeals,[39]
a collision between a truck and a privately-owned Cimarron van caused the
death of three of the vans passengers. The petitioner therein, the owner of
the truck, argued that the driver of the Cimarron was committing multiple
violations of the Land Transportation and Traffic Code[40] at the time of the
accident. Among these violations: the Cimarron was overloaded at the time
of the accident; the front seat of the van was occupied by four adults,
including the driver; and the van had only one functioning headlight. Similar
as in this case, petitioner therein invoked Article 2185 and argued that the
driver of the Cimarron should be presumed negligent. The Court, speaking
through Justice Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the
burden of showing a causal connection between the injury received and the
violation of the Land Transportation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause of the injury or that it
substantially contributed thereto. Negligence consisting in whole or in part, of
violation of law, like any other negligence, is without legal consequence
unless it is a contributing cause of the injury. Petitioner says that driving an
overloaded vehicle with only one functioning headlight during nighttime
certainly increases the risk of accident, that because the Cimarron had only
one headlight, there was decreased visibility, and that the fact that the
vehicle was overloaded and its front seat overcrowded decreased its
maneuverability. However, mere allegations such as these are not sufficient
to discharge its burden of proving clearly that such alleged negligence was
the contributing cause of the injury.[41]
Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia
was violating a municipal ordinance at the time of the accident may have
sufficiently established some degree of negligence on his part, but such
negligence is without legal consequence unless it is shown that it was a
contributing cause of the injury. If anything at all, it is but indicative of
Villagracias failure in fulfilling his obligation to the municipal government,
which would then be the proper party to initiate corrective action as a result.
But such failure alone is not determinative of Villagracias negligence in
relation to the accident. Negligence is relative or comparative, dependent
upon the situation of the parties and the degree of care and vigilance which
the particular circumstances reasonably require.[43] To determine if
Villagracia was negligent, it is not sufficient to rely solely on the violations of
the municipal ordinance, but imperative to examine Villagracias behavior in
relation to the contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise from
the logical consequences of the facts leading to the mishap. The doctrine
(and Article 2185, for that matter) is undeniably useful as a judicial guide in
adjudging liability, for it seeks to impute culpability arising from the failure of
the actor to perform up to a standard established by a legal fiat. But the
doctrine should not be rendered inflexible so as to deny relief when in fact
there is no causal relation between the statutory violation and the injury
sustained. Presumptions in law, while convenient, are not intractable so as to
forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming
to provide compensation for the harm suffered by those whose interests have
been invaded owing to the conduct of others.[44]
Under American case law, the failures imputed on Villagracia are not
grievous enough so as to negate monetary relief. In the absence of statutory
requirement, one is not negligent as a matter of law for failing to equip a
horn, bell, or other warning devise onto a bicycle.[45] In most cases, the
absence of proper lights on a bicycle does not constitute negligence as a
47
matter of law[46] but is a question for the jury whether the absence of proper
lights played a causal part in producing a collision with a motorist.[47] The
absence of proper lights on a bicycle at night, as required by statute or
ordinance, may constitute negligence barring or diminishing recovery if the
bicyclist is struck by a motorist as long as the absence of such lights was a
proximate cause of the collision;[48] however, the absence of such lights will
not preclude or diminish recovery if the scene of the accident was well
illuminated by street lights,[49] if substitute lights were present which clearly
rendered the bicyclist visible,[50] if the motorist saw the bicycle in spite of the
absence of lights thereon,[51] or if the motorist would have been unable to
see the bicycle even if it had been equipped with lights.[52] A bicycle
equipped with defective or ineffective brakes may support a finding of
negligence barring or diminishing recovery by an injured bicyclist where such
condition was a contributing cause of the accident.[53]
The above doctrines reveal a common thread. The failure of the bicycle
owner to comply with accepted safety practices, whether or not imposed by
ordinance or statute, is not sufficient to negate or mitigate recovery unless a
causal connection is established between such failure and the injury
sustained. The principle likewise finds affirmation in Sanitary Steam, wherein
we declared that the violation of a traffic statute must be shown as the
proximate cause of the injury, or that it substantially contributed thereto.[54]
Aonuevo had the burden of clearly proving that the alleged negligence of
Villagracia was the proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a
distance of about ten (10) meters before the accident. Corrolarily, therefore,
he could have avoided the accident had he [stopped] alongside with an
earlier (sic) jeep which was already at a full stop giving way to appellee. But
according to [eyewitness] Sorsano, he saw appellant Aonuevo
umaarangkada and hit the leg of Villagracia (TSN March 14, 1990 p. 30).
This earlier (sic) jeep at a full stop gave way to Villagracia to proceed but
Aonuevo at an unexpected motion (umarangkada) came out hitting
Villagracia (TSN March 9, 1990 p. 49). Appellant Aonuevo admitted that he
did not blow his horn when he crossed Boni Avenue (TSN March 21, 1990 p.
47).[55]
By Aonuevos own admission, he had seen Villagracia at a good distance of
ten (10) meters. Had he been decelerating, as he should, as he made the
turn, Aonuevo would have had ample opportunity to avoid hitting Villagracia.
Moreover, the fact that Aonuevo had sighted Villagracia before the accident
would negate any possibility that the absence of lights on the bike
contributed to the cause of the accident.[56] A motorist has been held liable
for injury to or death of a bicyclist where the motorist turned suddenly into the
bicyclist so as to cause a collision.[57]
Neither does Aonuevo attempt before this Court to establish a causal
connection between the safety violations imputed to Villagracia and the
accident itself. Instead, he relied on a putative presumption that these
violations in themselves sufficiently established negligence appreciable
against Villagracia. Since the onus on Aonuevo is to conclusively prove the
link between the violations and the accident, we can deem him as having
failed to discharge his necessary burden of proving Villagracias own liability.
Neither can we can adjudge Villagracia with contributory negligence. The
leading case in contributory negligence, Rakes v. Atlantic Gulf[58] clarifies
that damages may be mitigated if the claimant in conjunction with the
occurrence, [contributes] only to his injury.[59] To hold a person as having
contributed to his injuries, it must be shown that he performed an act that
brought about his injuries in disregard of warnings or signs of an impending
danger to health and body.[60] To prove contributory negligence, it is still
necessary to establish a causal link, although not proximate, between the
negligence of the party and the succeeding injury. In a legal sense,
negligence is contributory only when it contributes proximately to the injury,
and not simply a condition for its occurrence.[61]
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as
solely responsible for the accident. The petition does not demonstrate why
this finding should be reversed. It is hard to imagine that the same result
would not have occurred even if Villagracias bicycle had been equipped with
safety equipment. Aonuevo himself admitted having seen Villagracia from ten
(10) meters away, thus he could no longer claim not having been sufficiently
warned either by headlights or safety horns. The fact that Aonuevo was
recklessly speeding as he made the turn likewise leads us to believe that
even if Villagracias bicycle had been equipped with the proper brakes, the
cyclist would not have had opportunity to brake in time to avoid the speeding
car. Moreover, it was incumbent on Aonuevo to have established that
Villagracias failure to have installed the proper brakes contributed to his own
injury. The fact that Aonuevo failed to adduce proof to that effect leads us to
consider such causal connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals
48
is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,

vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS,
JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and
PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent

Court of Appeals' First Division, setting aside the judgment of the then Court
of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside

and another rendered in its stead whereby defendant is
hereby sentenced to pay plaintiffs actual damages of
P30,229.45; compensatory damages of P50,000.00;
exemplary damages of P10,000.00; attorney's fees of
P3,000.00; plus the costs of suit in both instances. (p. 27
Rollo)

Basically, this case involves a clash of evidence whereby both patties strive
for the recognition of their respective versions of the scenario from which the
disputed claims originate. The respondent Court of Appeals (CA)
summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening

of June 28 until the early morning of June 29, 1967 a strong
typhoon by the code name "Gening" buffeted the province of
49
Ilocos Norte, bringing heavy rains and consequent flooding
in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967,
after the typhoon had abated and when the floodwaters were
beginning to recede the deceased Isabel Lao Juan, fondly
called Nana Belen, ventured out of the house of her son-in-
law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City,
and proceeded northward towards the direction of the Five
Sisters Emporium, of which she was the owner and
proprietress, to look after the merchandise therein that might
have been damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by Aida Bulong, a
Salesgirl at the Five Sisters Grocery, also owned by the
deceased, and by Linda Alonzo Estavillo, a ticket seller at
the YJ Cinema, which was partly owned by the deceased.
Aida and Linda walked side by side at a distance of between
5 and 6 meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the water.
The two girls attempted to help, but fear dissuaded them
from doing so because on the spot where the deceased
sank they saw an electric wire dangling from a post and
moving in snake-like fashion in the water. Upon their shouts
for help, Ernesto dela Cruz came out of the house of Antonio
Yabes. Ernesto tried to go to the deceased, but at four
meters away from her he turned back shouting that the water
was grounded. Aida and Linda prodded Ernesto to seek help
from Antonio Yabes at the YJ Cinema building which was
four or five blocks away.
When Antonio Yabes was informed by Ernesto that his
mother-in law had been electrocuted, he acted immediately.
With his wife Jane, together with Ernesto and one Joe Ros,
Yabes passed by the City Hall of Laoag to request the police
to ask the people of defendant Ilocos Norte Electric
Company or INELCO to cut off the electric current. Then the
party waded to the house on Guerrero Street. The
floodwater was receding and the lights inside the house
were out indicating that the electric current had been cut off
in Guerrero. Yabes instructed his boys to fish for the body of
the deceased. The body was recovered about two meters
from an electric post.
In another place, at about 4:00 A.M. on that fateful date,
June 29, 1967, Engineer Antonio Juan, Power Plant
Engineer of the National Power Corporation at the Laoag
Diesel-Electric Plant, noticed certain fluctuations in their
electric meter which indicated such abnormalities as
grounded or short-circuited lines. Between 6:00 and 6:30
A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected
lines. Electric lines were hanging from the posts to the
ground. Since he could not see any INELCO lineman, he
decided to go to the INELCO Office at the Life Theatre on
Rizal Street by way of Guerrero. As he turned right at the
intersection of Guerrero and Rizal, he saw an electric wire
about 30 meters long strung across the street "and the other
end was seeming to play with the current of the water." (p.
64, TSN, Oct. 24, 1972) Finding the Office of the INELCO
still closed, and seeing no lineman therein, he returned to
the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound
again on another inspection trip. Having learned of the death
of Isabel Lao Juan, he passed by the house of the deceased
at the corner of Guerrero and M.H. del Pilar streets to which
the body had been taken. Using the resuscitator which was a
standard equipment in his jeep and employing the skill he
acquired from an in service training on resuscitation, he tried
to revive the deceased. His efforts proved futile. Rigor mortis
was setting in. On the left palm of the deceased, Engr. Juan
noticed a hollow wound. Proceeding to the INELCO Office,
he met two linemen on the way. He told them about the
grounded lines of the INELCO In the afternoon of the same
day, he went on a third inspection trip preparatory to the
restoration of power. The dangling wire he saw on Guerrero
early in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero
and M.H. del Pilar after learning that the deceased had been
electrocuted. Among the sympathizers was Dr. Jovencio
Castro, Municipal Health Officer of Sarrat, Ilocos Norte.
Upon the request of the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on June 29, 1967.
The skin was grayish or, in medical parlance, cyanotic,
which indicated death by electrocution. On the left palm, the
doctor found an "electrically charged wound" (Exh. C-1: p.
101, TSN, Nov. 28, 1972) or a first degree burn. About the
base of the thumb on the left hand was a burned wound.
(Exh. C-2, pp. 102-103, Ibid.) The certificate of death
50
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.
51
 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
52
 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
53
negligence. The witnesses testified in a general way about
their duties and the measures which defendant usually
adopts to prevent hazards to life and limb. From these
testimonies, the lower court found "that the electric lines and
other equipment of defendant corporation were properly
maintained by a well-trained team of lineman, technicians
and engineers working around the clock to insure that these
equipments were in excellent condition at all times." (P. 40,
Record on Appeal) The finding of the lower court, however,
was based on what the defendant's employees were
supposed to do, not on what they actually did or failed to do
on the date in question, and not on the occasion of 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.
54
Furthermore, the deceased, at the time the fatal incident occurred, was at a
place where she had a right to be without regard to petitioner's consent as
she was on her way to protect her merchandise. Hence, private respondents,
as heirs, may not be barred from recovering damages as a result of the
death caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely
reversing the trial court's findings of fact, pointing to the testimonies of three
of its employees its electrical engineer, collector-inspector, lineman, and
president-manager to the effect that it had exercised the degree of diligence
required of it in keeping its electric lines free from defects that may imperil life
and limb. Likewise, the said employees of petitioner categorically disowned
the fatal wires as they appear in two photographs taken on the afternoon of
June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just
hooked to the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower court ... was
based on what the defendant's employees were supposed to do, not on what
they actually did or failed to do on the date in question, and not on the
occasion of the emergency situation brought about by the typhoon" (CA
Decision, p. 25, Rollo). And as found by the CA, which We have already
reiterated above, petitioner was in fact negligent. In a like manner,
petitioner's denial of ownership of the several wires cannot stand the logical
conclusion reached by the CA when it held that "(t)he nature of the wounds
as described by the witnesses who saw them can lead to no other conclusion
than that they were 'burns', and there was nothing else in the street where
the victim was wading thru which could cause a burn except the dangling live
wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires
prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed.,
v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National
Power Corporation set out in the early morning of June 29, 1967 on an
inspection tour, he saw grounded and disconnected lines hanging from posts
to the ground but did not see any INELCO lineman either in the streets or at
the INELCO office (vide, CA Decision, supra). The foregoing shows that
petitioner's duty to exercise extraordinary diligence under the circumstance
was not observed, confirming the negligence of petitioner. To aggravate
matters, the CA found:
. . .even before June 28 the people in Laoag were already
alerted about the impending typhoon, through radio
announcements. Even the fire department of the city
announced the coming of the big flood. (pp. 532-534, TSN,
March 13, 1975) At the INELCO irregularities in the flow of
electric current were noted because "amperes of the switch
volts were moving". And yet, despite these danger signals,
INELCO had to wait for Engr. Juan to request that
defendant's switch be cut off but the harm was done. Asked
why the delay, Loreto Abijero answered that he "was not the
machine tender of the electric plant to switch off the current."
(pp. 467-468, Ibid.) How very characteristic of gross
inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in
reversing the trial court's findings but tediously considered the factual
circumstances at hand pursuant to its power to review questions of fact
raised from the decision of the Regional Trial Court, formerly the Court of
First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the
following in private respondent's favor: P30,229.45 in actual damages (i.e.,
P12,000 for the victim's death and P18,229.45 for funeral expenses);
P50,000 in compensatory damages, computed in accordance with the
formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of
P15,000 as average annual income of the deceased; P10,000 in exemplary
damages; P3,000 attorney's fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We affirm the respondent
CA's award for damages and attorney's fees. Pusuant to recent
jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147
SCRA 381), We increase the said award of P12,000 to P30,000, thus,
increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower
court was properly made by the respondent CA, the charge of malice and
bad faith on the part of respondents in instituting his case being a mere
product of wishful thinking and speculation. Award of damages and attorney's
fees is unwarranted where the action was filed in good faith; there should be
no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage
results from a person's exercising his legal rights, it is damnum absque
injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the
slight modification that actual damages be increased to P48,229.45 is hereby
AFFIRMED.
SO ORDERED.
55
G.R. No. 155604             November 22, 2007

COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN

and PENSION CORPORATION, petitioners,
vs.
BELFRANLT DEVELOPMENT INC., respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the February 28, 2002 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CV No. 63283, which modified the April 14, 1999
Decision2 of the Regional Trial Court (Branch 221), Quezon City (RTC) in
Civil Case No. Q-95-23118.

The antecedent facts are as summarized by the RTC.

Belfranlt Development, Inc. (respondent) is the owner of Belfranlt Building in

Angeles City, Pampanga. It leased to petitioners College Assurance Plan
Phil., Inc. (CAP) and Comprehensive Annuity Plans and Pension Corporation
(CAPP) several units on the second and third floors of the building. 3

On October 8, 1994, fire destroyed portions of the building, including the third
floor units being occupied by petitioners. An October 20, 1994 field
investigation report by an unnamed arson investigator assigned to the case
disclosed:

0.5 Origin of Fire: Store room occupied by CAP, located at the 3rd
floor of the bldg.

0.6 Cause of Fire: Accidental (overheated coffee percolator). 4

These findings are reiterated in the October 21, 1994 certification which the
BFP City Fire Marshal, Insp. Teodoro D. del Rosario issued to petitioners as
supporting document for the latter's insurance claim. 5

Citing the foregoing findings, respondent sent petitioners on November 3,

1994 a notice to vacate the leased premises to make way for repairs, and to
56
pay reparation estimated at P1.5 million.
On November 11, 1994, petitioners vacated the leased premises, including
the units on the second floor,6 but they did not act on the demand for
reparation.
Respondent wrote petitioners another letter, reiterating its claim for
reparation, this time estimated by professionals to be no less than P2
million.7 It also clarified that, as the leased units on the second floor were not
affected by the fire, petitioners had no reason to vacate the same; hence,
their lease on said units is deemed still subsisting, along with their obligation
to pay for the rent.8
In reply, petitioners explained that they could no longer re-occupy the units
on the second floor of the building for they had already moved to a new
location and entered into a binding contract with a new lessor. Petitioners
also disclaimed liability for reparation, pointing out that the fire was a
fortuitous event for which they could not be held responsible. 9
After its third demand10 went unheeded, respondent filed with the RTC a
complaint against petitioners for damages. The RTC rendered a Decision
dated April 14, 1999, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
in favor of the plaintiff [respondent] and against the herein
defendants [petitioners]. Defendants are ordered to pay the plaintiff
joint[sic] and severally the following amounts:
1) P2.2 Million Pesos cost of rehabilitation (repairs,
replacements and renovations) of the Belfranlt building by
way of Actual and Compensatory damages;
2) P14,000.00 per month of unpaid rentals on the third floor
of the Belfranlt building for the period from October 1994
until the end of the two year lease contract on May 10, 1996
by way of Actual and Compensatory damages;
3) P18,000.00 per month of unpaid rentals on the second
floor of the Belfanlt building for the period from October 1994
until the end of the two year lease contract on May 10, 1996
by way of Actual or Compensatory damages;
4) P8,400.00 per month as reimbursement of unpaid rentals
on the other leased areas occupied by other tenants for the
period from October 1994 until the time the vacated leased
areas were occupied by new tenants;
5) P200,000.00 as moral damages;
6) P200,000.00 as exemplary damages;
7) P50,000.00 plus 20% of Actual damages awarded as
reasonable Attorney's fees; and
8) Costs of suit.
SO ORDERED.11
Petitioners appealed to the CA which, in its February 28, 2002 Decision,
modified the RTC Decision, thus:
WHEREFORE, the appealed decision is MODIFIED in that the
award of (i) actual and compensatory damages in the amounts of
P2.2 Million as cost of rehabilitation of Belfranlt Building and
P8,400.00 per month as reimbursement of unpaid rentals on the
areas leased by other tenants, (ii) moral damages, (iii) exemplary
damages and (iv) attorney's fees is DELETED, while defendants-
appellants are ordered to pay to plaintiff-appellee, jointly and
severally, the amount of P500,000.00 as temperate damages. The
appealed judgment is AFFIRMED in all other respects.
SO ORDERED.12
Respondent did not appeal from the CA decision.13
Petitioners filed the present petition, questioning the CA decision on the
following grounds:
I
The honorable Court of Appeals erred in not holding that the fire that
partially burned respondent's building was a fortuitous event.
57
 II
The honorable Court of Appeals erred in holding that petitioner failed
to observe the due diligence of a good father of a family.
III
The honorable Court of Appeals erred in holding petitioners liable for
certain actual damages despite plaintiffs' failure to prove the damage
as alleged.
IV
The honorable Court of Appeals erred in holding petitioners liable for
temperate damages.14
The petition lacks merit.
Article 1667 of the Civil Code, which provides:
The lessee is responsible for the deterioration or loss of the thing
leased, unless he proves that it took place without his fault. This
burden of proof on the lessee does not apply when the destruction is
due to earthquake, flood, storm or other natural calamity.
creates the presumption that the lessee is liable for the deterioration or loss
of a thing leased. To overcome such legal presumption, the lessee must
prove that the deterioration or loss was due to a fortuitous event which took
place without his fault or negligence.15
Article 1174 of the Civil Code defines a fortuitous event as that which could
not be foreseen, or which, though foreseen, was inevitable. Whether an act
of god16 or an act of man,17 to constitute a fortuitous event, it must be shown
that: a) the cause of the unforeseen and unexpected occurrence or of the
failure of the obligor to comply with its obligations was independent of human
will; b) it was impossible to foresee the event or, if it could have been
foreseen, to avoid it; c) the occurrence rendered it impossible for the obligor
to fulfill its obligations in a normal manner; and d) said obligor was free from
any participation in the aggravation of the injury or loss. 18 If the negligence or
fault of the obligor coincided with the occurrence of the fortuitous event, and
caused the loss or damage or the aggravation thereof, the fortuitous event
cannot shield the obligor from liability for his negligence. 19
In the present case, it was fire that caused the damage to the units being
occupied by petitioners. The legal presumption therefore is that petitioners
were responsible for the damage. Petitioners insist, however, that they are
exempt from liability for the fire was a fortuitous event that took place without
their fault or negligence.20
The RTC saw differently, holding that the proximate cause of the fire was the
fault and negligence of petitioners in using a coffee percolator in the office
stockroom on the third floor of the building and in allowing the electrical
device to overheat:
Plaintiff has presented credible and preponderant evidence that the
fire was not due to a fortuitous event but rather was due to an
overheated coffee percolator found in the leased premises occupied
by the defendants. The certification issued by the Bureau of Fire
Protection Region 3 dated October 21, 1994 clearly indicated that
the cause of the fire was an overheated coffee percolator. This
documentary evidence is credible because it was issued by a
government office which conducted an investigation of the cause and
circumstances surrounding the fire of October 8, 1994. Under
Section 4, Rule 131 of the Revised Rules of Court, there is a legal
presumption that official duty has been regularly performed. The
defendants have failed to present countervailing evidence to rebut or
dispute this presumption. The defendants did not present any
credible evidence to impute any wrongdoing or false motives on the
part of Fire Department Officials and Arson investigators in the
preparation and finalization of this certification. This Court is
convinced that the Certification is genuine, authentic, valid and
issued in the proper exercise and regular performance of the issuing
authority's official duties. The written certification cannot be
considered self-serving to the plaintiff because as clearly indicated
on its face the same was issued not to the plaintiff but to the
defendant's representative Mr. Jesus V. Roig for purposes of filing
their insurance claim. This certification was issued by a government
office upon the request of the defendant's authorized representative.
The plaintiff also presented preponderant evidence that the fire was
caused by an overheated coffee percolator when plaintiff submitted
in evidence not only photographs of the remnants of a coffee
percolator found in the burned premises but the object evidence
itself. Defendants did not dispute the authenticity or veracity of these
evidence. Defendants merely presented negative evidence in the
form of denials that defendants maintained a coffee percolator in the
premises testified to by employees of defendants who cannot be
considered totally disinterested.21(Citations omitted)
58
The CA concurred with the RTC and noted additional evidence of the
negligence of petitioners:
The records disclose that the metal base of a heating device which
the lower court found to be the base of a coffee percolator, was
retrieved from the stockroom where the fire originated. The metal
base contains the inscription "CAUTION DO NOT OPERATE WHEN
EMPTY", which is a warning against the use of such electrical device
when empty and an indication that it is a water-heating appliance. Its
being an instrument for preparing coffee is demonstrated by its
retrieval from the stockroom, particularly beside broken drinking
glasses, Nescafe bottle, metal dish rack and utensils.
Appellants assert that it had an airpot – not a coffee percolator - near
the Administration Office on the third floor. For unexplained reasons,
however, they did not present the airpot to disprove the existence of
the coffee percolator. The fire did not raze the entire third floor and
the objects therein. Even the stack of highly combustible paper on
the third floor was not totally gutted by the fire. Consequently, it is not
farfetched that the burnt airpot, if any, could have been recovered by
appellants from the area where it was supposedly being kept.
xxxx
The defense that the fire was a fortuitous event is untenable. It is
undisputed that the fire originated from appellants' stockroom located
on the third floor leased premises. Said stockroom was under the
control of appellants which, on that fateful day (a Saturday),
conducted a seminar in the training room which was adjoining the
stockroom. Absent an explanation from appellants on the cause of
the fire, the doctrine of res ipsa loquitur applies.22
Petitioners impugn both findings. They claim that the BFP field investigation
report (Exh. "P-2") and the BFP certification (Exh. "P-3") are hearsay
evidence because these were presented during the testimony of Fireman
Gerardo Sitchon (Fireman Sitchon) of the Bureau of Fire Protection (BFP),
Angeles City, who admitted to having no participation in the investigation of
the fire incident or personal knowledge about said incident, 23 making him
incompetent to testify thereon. Petitioners argue that, with Exh. "P-2" and
Exh. "P-3" and the testimony of Fireman Sitchon that are flawed, there is
virtually no evidence left that the cause of the fire was an overheated coffee
percolator. Petitioners insist that they own no such percolator. 24
We find no cogent reason to disturb the finding of the RTC and CA.
The finding that the negligence of petitioners was the proximate cause of the
fire that destroyed portions of the leased units is a purely factual matter
which we cannot pass upon,25 lest we overstep the restriction that review by
certiorari under Rule 45 be limited to errors of law only.26
Moreover, the established rule is that the factual findings of the CA affirming
those of the RTC are conclusive and binding on us. 27 We are not wont to
review them, save under exceptional circumstances as: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2) when there
is grave abuse of discretion; (3) when the findings are grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the CA is
based on misapprehension of facts; (5) when the CA, in making its findings,
went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (6) when the findings of fact are
conclusions without citation of specific evidence on which they are based; (7)
when the CA manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different conclusion;
and (8) when the findings of fact of the CA are premised on the absence of
evidence and are contradicted by the evidence on record. 28
The exceptions do not obtain in the present case. In fact, the findings of the
RTC and CA are fully supported by the evidence.
Contrary to petitioners' claim, Fireman Sitchon is competent to identify and
testify on Exh. "P-2" and Exh. "P-3" because, although he did not sign said
documents, he personally prepared the same.29 What Fireman Sitchon did
not prepare were the documents which his investigation witnesses
presented.30 However, Fireman Sitchon emphasized that he interviewed said
investigation witnesses namely, Ronald Estanislao, the security guard on
duty at the time of fire; and Dr. Zenaida Arcilla, manager of CAPP, before he
prepared Exh. "P-2" and Exh. "P-3."31 Hence, while Fireman Sitchon may
have had no personal knowledge of the fire incident, Exh. "P-2" and Exh. "P-
3," which he prepared based on the statements of his investigation
witnesses, especially that of Ronald Estanislao whose official duty it was to
report on the incident, are exceptions to the hearsay rule because these are
entries in official records.32 Consequently, his testimony on said documents
are competent evidence of the contents thereof. 33
Furthermore, the petitioners are estopped from contesting the veracity of
Exh. "P-3" because, as the CA correctly pointed out, "the aforesaid
certification was used by appellants [petitioners] in claiming insurance for
59
their office equipment which were destroyed by the fire." 34 WHEREFORE, the petition is DENIED for lack of merit.

Even without the testimony of Fireman Sitchon and the documents he SO ORDERED.
prepared, the finding of the RTC and CA on the negligence of petitioners
cannot be overturned by petitioners' bare denial. The CA correctly applied
the doctrine of res ipsa loquitur under which expert testimony may be
dispensed with35 to sustain an allegation of negligence if the following
requisites obtain: a) the accident is of a kind which does not ordinarily occur
unless someone is negligent; b) the cause of the injury was under the
exclusive control of the person in charge and c) the injury suffered must not
have been due to any voluntary action or contribution on the part of the
person injured.36 The fire that damaged Belfranlt Building was not a
spontaneous natural occurrence but the outcome of a human act or
omission. It originated in the store room which petitioners had possession
and control of. Respondent had no hand in the incident. Hence, the
convergence of these facts and circumstances speaks for itself: petitioners
alone having knowledge of the cause of the fire or the best opportunity to
ascertain it, and respondent having no means to find out for itself, it is
sufficient for the latter to merely allege that the cause of the fire was the
negligence of the former and to rely on the occurrence of the fire as proof of
such negligence.37 It was all up to petitioners to dispel such inference of
negligence, but their bare denial only left the matter unanswered.

The CA therefore correctly affirmed the RTC in holding petitioners liable to

respondent for actual damages consisting of unpaid rentals for the units they
leased.

The CA deleted the award of actual damages of P2.2 million which the RTC
had granted respondent to cover costs of building repairs. In lieu of actual
damages, temperate damages in the amount of P500,000.00 were awarded
by the CA. We find this in order.38

Temperate or moderate damages may be availed when some pecuniary loss

has been suffered but its amount cannot, from the nature of the case, be
proved with certainty.39 The amount thereof is usually left to the discretion of
the courts but the same should be reasonable, bearing in mind that
temperate damages should be more than nominal but less than
compensatory.40 Without a doubt, respondent suffered some form of
pecuniary loss for the impairment of the structural integrity of its building as a
result of the fire. However, as correctly pointed out by the CA, because of
respondent's inability to present proof of the exact amount of such pecuniary
loss, it may only be entitled to temperate damages in the amount of
P500,000.00,41 which we find reasonable and just.

60
 JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners,
vs.
THE COURT OF APPEALS, UNITED CONSTRUCTION COMPANY, INC.,
JUAN J. CARLOS, and the PHILIPPINE BAR ASSOCIATION,
respondents.

G.R. No. L-47863 October 3, 1986

THE UNITED CONSTRUCTION CO., INC., petitioner,

vs.
COURT OF APPEALS, ET AL., respondents.

G.R. No. L-47896 October 3, 1986

PHILIPPINE BAR ASSOCIATION, ET AL., petitioners,

vs.
COURT OF APPEALS, ET AL., respondents.

PARAS, J.:

These are petitions for review on certiorari of the November 28, 1977
decision of the Court of Appeals in CA-G.R. No. 51771-R modifying the
decision of the Court of First Instance of Manila, Branch V, in Civil Case No.
74958 dated September 21, 1971 as modified by the Order of the lower court
dated December 8, 1971. The Court of Appeals in modifying the decision of
the lower court included an award of an additional amount of P200,000.00 to
the Philippine Bar Association to be paid jointly and severally by the
defendant United Construction Co. and by the third-party defendants Juan F.
Nakpil and Sons and Juan F. Nakpil.

The dispositive portion of the modified decision of the lower court reads:

WHEREFORE, judgment is hereby rendered:

(a) Ordering defendant United Construction Co., Inc. and

third-party defendants (except Roman Ozaeta) to pay the
plaintiff, jointly and severally, the sum of P989,335.68 with
interest at the legal rate from November 29, 1968, the date
G.R. No. L-47851 October 3, 1986 of the filing of the complaint until full payment;

61
 (b) Dismissing the complaint with respect to defendant Juan
J. Carlos;
(c) Dismissing the third-party complaint;
(d) Dismissing the defendant's and third-party defendants'
counterclaims for lack of merit;
(e) Ordering defendant United Construction Co., Inc. and
third-party defendants (except Roman Ozaeta) to pay the
costs in equal shares.
SO ORDERED. (Record on Appeal p. 521; Rollo, L- 47851,
p. 169).
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the judgment appealed from is modified to
include an award of P200,000.00 in favor of plaintiff-
appellant Philippine Bar Association, with interest at the legal
rate from November 29, 1968 until full payment to be paid
jointly and severally by defendant United Construction Co.,
Inc. and third party defendants (except Roman Ozaeta). In
all other respects, the judgment dated September 21, 1971
as modified in the December 8, 1971 Order of the lower
court is hereby affirmed with COSTS to be paid by the
defendant and third party defendant (except Roman Ozaeta)
in equal shares.
SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and United Construction Co.,
Inc. and Juan J. Carlos in L-47863 seek the reversal of the decision of the
Court of Appeals, among other things, for exoneration from liability while
petitioner Philippine Bar Association in L-47896 seeks the modification of
aforesaid decision to obtain an award of P1,830,000.00 for the loss of the
PBA building plus four (4) times such amount as damages resulting in
increased cost of the building, P100,000.00 as exemplary damages; and
P100,000.00 as attorney's fees.
These petitions arising from the same case filed in the Court of First Instance
of Manila were consolidated by this Court in the resolution of May 10, 1978
requiring the respective respondents to comment. (Rollo, L-47851, p. 172).
The facts as found by the lower court (Decision, C.C. No. 74958; Record on
Appeal, pp. 269-348; pp. 520-521; Rollo, L-47851, p. 169) and affirmed by
the Court of Appeals are as follows:
The plaintiff, Philippine Bar Association, a civic-non-profit association,
incorporated under the Corporation Law, decided to construct an office
building on its 840 square meters lot located at the comer of Aduana and
Arzobispo Streets, Intramuros, Manila. The construction was undertaken by
the United Construction, Inc. on an "administration" basis, on the suggestion
of Juan J. Carlos, the president and general manager of said corporation.
The proposal was approved by plaintiff's board of directors and signed by its
president Roman Ozaeta, a third-party defendant in this case. The plans and
specifications for the building were prepared by the other third-party
defendants Juan F. Nakpil & Sons. The building was completed in June,
1966.
In the early morning of August 2, 1968 an unusually strong earthquake hit
Manila and its environs and the building in question sustained major damage.
The front columns of the building buckled, causing the building to tilt forward
dangerously. The tenants vacated the building in view of its precarious
condition. As a temporary remedial measure, the building was shored up by
United Construction, Inc. at the cost of P13,661.28.
On November 29, 1968, the plaintiff commenced this action for the recovery
of damages arising from the partial collapse of the building against United
Construction, Inc. and its President and General Manager Juan J. Carlos as
defendants. Plaintiff alleges that the collapse of the building was accused by
defects in the construction, the failure of the contractors to follow plans and
specifications and violations by the defendants of the terms of the contract.
Defendants in turn filed a third-party complaint against the architects who
prepared the plans and specifications, alleging in essence that the collapse
of the building was due to the defects in the said plans and specifications.
Roman Ozaeta, the then president of the plaintiff Bar Association was
included as a third-party defendant for damages for having included Juan J.
Carlos, President of the United Construction Co., Inc. as party defendant.
On March 3, 1969, the plaintiff and third-party defendants Juan F. Nakpil &
Sons and Juan F. Nakpil presented a written stipulation which reads:
1. That in relation to defendants' answer with counterclaims
62
 and third- party complaints and the third-party defendants
Nakpil & Sons' answer thereto, the plaintiff need not amend
its complaint by including the said Juan F. Nakpil & Sons
and Juan F. Nakpil personally as parties defendant.
2. That in the event (unexpected by the undersigned) that
the Court should find after the trial that the above-named
defendants Juan J. Carlos and United Construction Co., Inc.
are free from any blame and liability for the collapse of the
PBA Building, and should further find that the collapse of
said building was due to defects and/or inadequacy of the
plans, designs, and specifications p by the third-party
defendants, or in the event that the Court may find Juan F.
Nakpil and Sons and/or Juan F. Nakpil contributorily
negligent or in any way jointly and solidarily liable with the
defendants, judgment may be rendered in whole or in part.
as the case may be, against Juan F. Nakpil & Sons and/or
Juan F. Nakpil in favor of the plaintiff to all intents and
purposes as if plaintiff's complaint has been duly amended
by including the said Juan F. Nakpil & Sons and Juan F.
Nakpil as parties defendant and by alleging causes of action
against them including, among others, the defects or
inadequacy of the plans, designs, and specifications
prepared by them and/or failure in the performance of their
contract with plaintiff.
3. Both parties hereby jointly petition this Honorable Court to
approve this stipulation. (Record on Appeal, pp. 274-275;
Rollo, L-47851,p.169).
Upon the issues being joined, a pre-trial was conducted on March 7, 1969,
during which among others, the parties agreed to refer the technical issues
involved in the case to a Commissioner. Mr. Andres O. Hizon, who was
ultimately appointed by the trial court, assumed his office as Commissioner,
charged with the duty to try the following issues:
1. Whether the damage sustained by the PBA building
during the August 2, 1968 earthquake had been caused,
directly or indirectly, by:
(a) The inadequacies or defects in the plans and
specifications prepared by third-party defendants;
(b) The deviations, if any, made by the defendants from said
plans and specifications and how said deviations contributed
to the damage sustained;
(c) The alleged failure of defendants to observe the requisite
quality of materials and workmanship in the construction of
the building;
(d) The alleged failure to exercise the requisite degree of
supervision expected of the architect, the contractor and/or
the owner of the building;
(e) An act of God or a fortuitous event; and
(f) Any other cause not herein above specified.
2. If the cause of the damage suffered by the building arose
from a combination of the above-enumerated factors, the
degree or proportion in which each individual factor
contributed to the damage sustained;
3. Whether the building is now a total loss and should be
completely demolished or whether it may still be repaired
and restored to a tenantable condition. In the latter case, the
determination of the cost of such restoration or repair, and
the value of any remaining construction, such as the
foundation, which may still be utilized or availed of (Record
on Appeal, pp. 275-276; Rollo, L-47851, p. 169).
Thus, the issues of this case were divided into technical issues and non-
technical issues. As aforestated the technical issues were referred to the
Commissioner. The non-technical issues were tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of the building on the
ground that it may topple down in case of a strong earthquake. The motions
were opposed by the defendants and the matter was referred to the
Commissioner. Finally, on April 30, 1979 the building was authorized to be
demolished at the expense of the plaintiff, but not another earthquake of high
intensity on April 7, 1970 followed by other strong earthquakes on April 9,
and 12, 1970, caused further damage to the property. The actual demolition
was undertaken by the buyer of the damaged building. (Record on Appeal,
pp. 278-280; Ibid.)
63
After the protracted hearings, the Commissioner eventually submitted his
report on September 25, 1970 with the findings that while the damage
sustained by the PBA building was caused directly by the August 2, 1968
earthquake whose magnitude was estimated at 7.3 they were also caused by
the defects in the plans and specifications prepared by the third-party
defendants' architects, deviations from said plans and specifications by the
defendant contractors and failure of the latter to observe the requisite
workmanship in the construction of the building and of the contractors,
architects and even the owners to exercise the requisite degree of
supervision in the construction of subject building.
All the parties registered their objections to aforesaid findings which in turn
were answered by the Commissioner.
The trial court agreed with the findings of the Commissioner except as to the
holding that the owner is charged with full nine supervision of the
construction. The Court sees no legal or contractual basis for such
conclusion. (Record on Appeal, pp. 309-328; Ibid).
Thus, on September 21, 1971, the lower court rendered the assailed decision
which was modified by the Intermediate Appellate Court on November 28,
1977.
All the parties herein appealed from the decision of the Intermediate
Appellate Court. Hence, these petitions.
On May 11, 1978, the United Architects of the Philippines, the Association of
Civil Engineers, and the Philippine Institute of Architects filed with the Court a
motion to intervene as amicus curiae. They proposed to present a position
paper on the liability of architects when a building collapses and to submit
likewise a critical analysis with computations on the divergent views on the
design and plans as submitted by the experts procured by the parties. The
motion having been granted, the amicus curiae were granted a period of 60
days within which to submit their position.
After the parties had all filed their comments, We gave due course to the
petitions in Our Resolution of July 21, 1978.
The position papers of the amicus curiae (submitted on November 24, 1978)
were duly noted.
The amicus curiae gave the opinion that the plans and specifications of the
Nakpils were not defective. But the Commissioner, when asked by Us to
comment, reiterated his conclusion that the defects in the plans and
specifications indeed existed.
Using the same authorities availed of by the amicus curiae such as the
Manila Code (Ord. No. 4131) and the 1966 Asep Code, the Commissioner
added that even if it can be proved that the defects in the construction alone
(and not in the plans and design) caused the damage to the building, still the
deficiency in the original design and jack of specific provisions against torsion
in the original plans and the overload on the ground floor columns (found by
an the experts including the original designer) certainly contributed to the
damage which occurred. (Ibid, p. 174).
In their respective briefs petitioners, among others, raised the following
assignments of errors: Philippine Bar Association claimed that the measure
of damages should not be limited to P1,100,000.00 as estimated cost of
repairs or to the period of six (6) months for loss of rentals while United
Construction Co., Inc. and the Nakpils claimed that it was an act of God that
caused the failure of the building which should exempt them from
responsibility and not the defective construction, poor workmanship,
deviations from plans and specifications and other imperfections in the case
of United Construction Co., Inc. or the deficiencies in the design, plans and
specifications prepared by petitioners in the case of the Nakpils. Both UCCI
and the Nakpils object to the payment of the additional amount of
P200,000.00 imposed by the Court of Appeals. UCCI also claimed that it
should be reimbursed the expenses of shoring the building in the amount of
P13,661.28 while the Nakpils opposed the payment of damages jointly and
solidarity with UCCI.
The pivotal issue in this case is whether or not an act of God-an unusually
strong earthquake-which caused the failure of the building, exempts from
liability, parties who are otherwise liable because of their negligence.
The applicable law governing the rights and liabilities of the parties herein is
Article 1723 of the New Civil Code, which provides:
Art. 1723. The engineer or architect who drew up the plans
and specifications for a building is liable for damages if
within fifteen years from the completion of the structure the
same should collapse by reason of a defect in those plans
and specifications, or due to the defects in the ground. The
contractor is likewise responsible for the damage if the
edifice fags within the same period on account of defects in
64
 the construction or the use of materials of inferior quality
furnished by him, or due to any violation of the terms of the
contract. If the engineer or architect supervises the
construction, he shall be solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply
waiver of any of the causes of action by reason of any defect
mentioned in the preceding paragraph.
The action must be brought within ten years following the
collapse of the building.
On the other hand, the general rule is that no person shall be responsible for
events which could not be foreseen or which though foreseen, were
inevitable (Article 1174, New Civil Code).
An act of God has been defined as an accident, due directly and exclusively
to natural causes without human intervention, which by no amount of
foresight, pains or care, reasonably to have been expected, could have been
prevented. (1 Corpus Juris 1174).
There is no dispute that the earthquake of August 2, 1968 is a fortuitous
event or an act of God.
To exempt the obligor from liability under Article 1174 of the Civil Code, for a
breach of an obligation due to an "act of God," the following must concur: (a)
the cause of the breach of the obligation must be independent of the will of
the debtor; (b) the event must be either unforseeable or unavoidable; (c) the
event must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the creditor. (Vasquez v. Court
of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v.
Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring
Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there
concurs a corresponding fraud, negligence, delay or violation or
contravention in any manner of the tenor of the obligation as provided for in
Article 1170 of the Civil Code, which results in loss or damage, the obligor
cannot escape liability.
The principle embodied in the act of God doctrine strictly requires that the act
must be one occasioned exclusively by the violence of nature and all human
agencies are to be excluded from creating or entering into the cause of the
mischief. When the effect, the cause of which is to be considered, is found to
be in part the result of the participation of man, whether it be from active
intervention or neglect, or failure to act, the whole occurrence is thereby
humanized, as it were, and removed from the rules applicable to the acts of
God. (1 Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a person concurs with an
act of God in producing a loss, such person is not exempt from liability by
showing that the immediate cause of the damage was the act of God. To be
exempt from liability for loss because of an act of God, he must be free from
any previous negligence or misconduct by which that loss or damage may
have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129;
Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co.,
34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the third-party defendants petitioners
was established beyond dispute both in the lower court and in the
Intermediate Appellate Court. Defendant United Construction Co., Inc. was
found to have made substantial deviations from the plans and specifications.
and to have failed to observe the requisite workmanship in the construction
as well as to exercise the requisite degree of supervision; while the third-
party defendants were found to have inadequacies or defects in the plans
and specifications prepared by them. As correctly assessed by both courts,
the defects in the construction and in the plans and specifications were the
proximate causes that rendered the PBA building unable to withstand the
earthquake of August 2, 1968. For this reason the defendant and third-party
defendants cannot claim exemption from liability. (Decision, Court of
Appeals, pp. 30-31).
It is well settled that the findings of facts of the Court of Appeals are
conclusive on the parties and on this court (cases cited in Tolentino vs. de
Jesus, 56 SCRA 67; Cesar vs. Sandiganbayan, January 17, 1985, 134
SCRA 105, 121), unless (1) the conclusion is a finding grounded entirely on
speculation, surmise and conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on
misapprehension of facts; (5) the findings of fact are conflicting , (6) the Court
of Appeals went beyond the issues of the case and its findings are contrary
to the admissions of both appellant and appellees (Ramos vs. Pepsi-Cola
Bottling Co., February 8, 1967, 19 SCRA 289, 291-292; Roque vs. Buan,
Oct. 31, 1967, 21 SCRA 648, 651); (7) the findings of facts of the Court of
Appeals are contrary to those of the trial court; (8) said findings of facts are
65
conclusions without citation of specific evidence on which they are based; (9)
the facts set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondents (Garcia vs. CA, June 30, 1970, 33
SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA 322,
366); (10) the finding of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by evidence on record
(Salazar vs. Gutierrez, May 29, 1970, 33 SCRA 243, 247; Cited in G.R. No.
66497-98, Sacay v. Sandiganbayan, July 10, 1986).
It is evident that the case at bar does not fall under any of the exceptions
above-mentioned. On the contrary, the records show that the lower court
spared no effort in arriving at the correct appreciation of facts by the referral
of technical issues to a Commissioner chosen by the parties whose findings
and conclusions remained convincingly unrebutted by the intervenors/amicus
curiae who were allowed to intervene in the Supreme Court.
In any event, the relevant and logical observations of the trial court as
affirmed by the Court of Appeals that "while it is not possible to state with
certainty that the building would not have collapsed were those defects not
present, the fact remains that several buildings in the same area withstood
the earthquake to which the building of the plaintiff was similarly subjected,"
cannot be ignored.
The next issue to be resolved is the amount of damages to be awarded to
the PBA for the partial collapse (and eventual complete collapse) of its
building.
The Court of Appeals affirmed the finding of the trial court based on the
report of the Commissioner that the total amount required to repair the PBA
building and to restore it to tenantable condition was P900,000.00 inasmuch
as it was not initially a total loss. However, while the trial court awarded the
PBA said amount as damages, plus unrealized rental income for one-half
year, the Court of Appeals modified the amount by awarding in favor of PBA
an additional sum of P200,000.00 representing the damage suffered by the
PBA building as a result of another earthquake that occurred on April 7, 1970
(L-47896, Vol. I, p. 92).
The PBA in its brief insists that the proper award should be P1,830,000.00
representing the total value of the building (L-47896, PBA's No. 1
Assignment of Error, p. 19), while both the NAKPILS and UNITED question
the additional award of P200,000.00 in favor of the PBA (L- 47851, NAKPIL's
Brief as Petitioner, p. 6, UNITED's Brief as Petitioner, p. 25). The PBA further
urges that the unrealized rental income awarded to it should not be limited to
a period of one-half year but should be computed on a continuing basis at
the rate of P178,671.76 a year until the judgment for the principal amount
shall have been satisfied L- 47896, PBA's No. 11 Assignment of Errors, p.
19).
The collapse of the PBA building as a result of the August 2, 1968
earthquake was only partial and it is undisputed that the building could then
still be repaired and restored to its tenantable condition. The PBA, however,
in view of its lack of needed funding, was unable, thru no fault of its own, to
have the building repaired. UNITED, on the other hand, spent P13,661.28 to
shore up the building after the August 2, 1968 earthquake (L-47896, CA
Decision, p. 46). Because of the earthquake on April 7, 1970, the trial court
after the needed consultations, authorized the total demolition of the building
(L-47896, Vol. 1, pp. 53-54).
There should be no question that the NAKPILS and UNITED are liable for the
damage resulting from the partial and eventual collapse of the PBA building
as a result of the earthquakes.
We quote with approval the following from the erudite decision penned by
Justice Hugo E. Gutierrez (now an Associate Justice of the Supreme Court)
while still an Associate Justice of the Court of Appeals:
There is no question that an earthquake and other forces of
nature such as cyclones, drought, floods, lightning, and
perils of the sea are acts of God. It does not necessarily
follow, however, that specific losses and suffering resulting
from the occurrence of these natural force are also acts of
God. We are not convinced on the basis of the evidence on
record that from the thousands of structures in Manila, God
singled out the blameless PBA building in Intramuros and
around six or seven other buildings in various parts of the
city for collapse or severe damage and that God alone was
responsible for the damages and losses thus suffered.
The record is replete with evidence of defects and
deficiencies in the designs and plans, defective construction,
poor workmanship, deviation from plans and specifications
and other imperfections. These deficiencies are attributable
to negligent men and not to a perfect God.
The act-of-God arguments of the defendants- appellants and
third party defendants-appellants presented in their briefs
66
are premised on legal generalizations or speculations and on
theological fatalism both of which ignore the plain facts. The
lengthy discussion of United on ordinary earthquakes and
unusually strong earthquakes and on ordinary fortuitous
events and extraordinary fortuitous events leads to its
argument that the August 2, 1968 earthquake was of such
an overwhelming and destructive character that by its own
force and independent of the particular negligence alleged,
the injury would have been produced. If we follow this line of
speculative reasoning, we will be forced to conclude that
under such a situation scores of buildings in the vicinity and
in other parts of Manila would have toppled down. Following
the same line of reasoning, Nakpil and Sons alleges that the
designs were adequate in accordance with pre-August 2,
1968 knowledge and appear inadequate only in the light of
engineering information acquired after the earthquake. If this
were so, hundreds of ancient buildings which survived the
earthquake better than the two-year old PBA building must
have been designed and constructed by architects and
contractors whose knowledge and foresight were
unexplainably auspicious and prophetic. Fortunately, the
facts on record allow a more down to earth explanation of
the collapse. The failure of the PBA building, as a unique
and distinct construction with no reference or comparison to
other buildings, to weather the severe earthquake forces
was traced to design deficiencies and defective construction,
factors which are neither mysterious nor esoteric. The
theological allusion of appellant United that God acts in
mysterious ways His wonders to perform impresses us to be
inappropriate. The evidence reveals defects and deficiencies
in design and construction. There is no mystery about these
acts of negligence. The collapse of the PBA building was no
wonder performed by God. It was a result of the
imperfections in the work of the architects and the people in
the construction company. More relevant to our mind is the
lesson from the parable of the wise man in the Sermon on
the Mount "which built his house upon a rock; and the rain
descended and the floods came and the winds blew and
beat upon that house; and it fen not; for it was founded upon
a rock" and of the "foolish upon the sand. And the rain
descended and man which built his house the floods came,
and the winds blew, and beat upon that house; and it fell and
great was the fall of it. (St. Matthew 7: 24-27)." The
requirement that a building should withstand rains, floods,
winds, earthquakes, and natural forces is precisely the
reason why we have professional experts like architects, and
engineers. Designs and constructions vary under varying
circumstances and conditions but the requirement to design
and build well does not change.
The findings of the lower Court on the cause of the collapse
are more rational and accurate. Instead of laying the blame
solely on the motions and forces generated by the
earthquake, it also examined the ability of the PBA building,
as designed and constructed, to withstand and successfully
weather those forces.
The evidence sufficiently supports a conclusion that the
negligence and fault of both United and Nakpil and Sons, not
a mysterious act of an inscrutable God, were responsible for
the damages. The Report of the Commissioner, Plaintiff's
Objections to the Report, Third Party Defendants' Objections
to the Report, Defendants' Objections to the Report,
Commissioner's Answer to the various Objections, Plaintiffs'
Reply to the Commissioner's Answer, Defendants' Reply to
the Commissioner's Answer, Counter-Reply to Defendants'
Reply, and Third-Party Defendants' Reply to the
Commissioner's Report not to mention the exhibits and the
testimonies show that the main arguments raised on appeal
were already raised during the trial and fully considered by
the lower Court. A reiteration of these same arguments on
appeal fails to convince us that we should reverse or disturb
the lower Court's factual findings and its conclusions drawn
from the facts, among them:
The Commissioner also found merit in the allegations of the
defendants as to the physical evidence before and after the
earthquake showing the inadequacy of design, to wit:
Physical evidence before the earthquake providing (sic)
inadequacy of design;
1. inadequate design was the cause of the failure of the
building.
2. Sun-baffles on the two sides and in front of the building;
67
a. Increase the inertia forces that move the building laterally
toward the Manila Fire Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down spout on all
exterior columns reduces the cross-sectional area of each of
the columns and the strength thereof.
4. Two front corners, A7 and D7 columns were very much
less reinforced.
Physical Evidence After the Earthquake, Proving Inadequacy
of design;
1. Column A7 suffered the severest fracture and maximum
sagging. Also D7.
2. There are more damages in the front part of the building
than towards the rear, not only in columns but also in slabs.
3. Building leaned and sagged more on the front part of the
building.
4. Floors showed maximum sagging on the sides and toward
the front corner parts of the building.
5. There was a lateral displacement of the building of about
8", Maximum sagging occurs at the column A7 where the
floor is lower by 80 cm. than the highest slab level.
6. Slab at the corner column D7 sagged by 38 cm.
The Commissioner concluded that there were deficiencies or
defects in the design, plans and specifications of the PBA
building which involved appreciable risks with respect to the
accidental forces which may result from earthquake shocks.
He conceded, however, that the fact that those deficiencies
or defects may have arisen from an obsolete or not too
conservative code or even a code that does not require a
design for earthquake forces mitigates in a large measure
the responsibility or liability of the architect and engineer
designer.
The Third-party defendants, who are the most concerned
with this portion of the Commissioner's report, voiced
opposition to the same on the grounds that (a) the finding is
based on a basic erroneous conception as to the design
concept of the building, to wit, that the design is essentially
that of a heavy rectangular box on stilts with shear wan at
one end; (b) the finding that there were defects and a
deficiency in the design of the building would at best be
based on an approximation and, therefore, rightly belonged
to the realm of speculation, rather than of certainty and could
very possibly be outright error; (c) the Commissioner has
failed to back up or support his finding with extensive,
complex and highly specialized computations and analyzes
which he himself emphasizes are necessary in the
determination of such a highly technical question; and (d) the
Commissioner has analyzed the design of the PBA building
not in the light of existing and available earthquake
engineering knowledge at the time of the preparation of the
design, but in the light of recent and current standards.
The Commissioner answered the said objections alleging
that third-party defendants' objections were based on
estimates or exhibits not presented during the hearing that
the resort to engineering references posterior to the date of
the preparation of the plans was induced by the third-party
defendants themselves who submitted computations of the
third-party defendants are erroneous.
The issue presently considered is admittedly a technical one
of the highest degree. It involves questions not within the
ordinary competence of the bench and the bar to resolve by
themselves. Counsel for the third-party defendants has aptly
remarked that "engineering, although dealing in
mathematics, is not an exact science and that the present
knowledge as to the nature of earthquakes and the
behaviour of forces generated by them still leaves much to
be desired; so much so "that the experts of the different
parties, who are all engineers, cannot agree on what
equation to use, as to what earthquake co-efficients are, on
the codes to be used and even as to the type of structure
that the PBA building (is) was (p. 29, Memo, of third- party
68
defendants before the Commissioner).
The difficulty expected by the Court if tills technical matter
were to be tried and inquired into by the Court itself, coupled
with the intrinsic nature of the questions involved therein,
constituted the reason for the reference of the said issues to
a Commissioner whose qualifications and experience have
eminently qualified him for the task, and whose competence
had not been questioned by the parties until he submitted his
report. Within the pardonable limit of the Court's ability to
comprehend the meaning of the Commissioner's report on
this issue, and the objections voiced to the same, the Court
sees no compelling reasons to disturb the findings of the
Commissioner that there were defects and deficiencies in
the design, plans and specifications prepared by third-party
defendants, and that said defects and deficiencies involved
appreciable risks with respect to the accidental forces which
may result from earthquake shocks.
(2) (a) The deviations, if any, made by the defendants from
the plans and specifications, and how said deviations
contributed to the damage sustained by the building.
(b) The alleged failure of defendants to observe the requisite
quality of materials and workmanship in the construction of
the building.
These two issues, being interrelated with each other, will be
discussed together.
The findings of the Commissioner on these issues were as
follows:
We now turn to the construction of the PBA Building and the
alleged deficiencies or defects in the construction and
violations or deviations from the plans and specifications. All
these may be summarized as follows:
a. Summary of alleged defects as reported by Engineer
Mario M. Bundalian.
(1) Wrongful and defective placing of reinforcing bars.
(2) Absence of effective and desirable integration of the 3
bars in the cluster.
(3) Oversize coarse aggregates: 1-1/4 to 2" were used.
Specification requires no larger than 1 inch.
(4) Reinforcement assembly is not concentric with the
column, eccentricity being 3" off when on one face the main
bars are only 1 1/2' from the surface.
(5) Prevalence of honeycombs,
(6) Contraband construction joints,
(7) Absence, or omission, or over spacing of spiral hoops,
(8) Deliberate severance of spirals into semi-circles in noted
on Col. A-5, ground floor,
(9) Defective construction joints in Columns A-3, C-7, D-7
and D-4, ground floor,
(10) Undergraduate concrete is evident,
(11) Big cavity in core of Column 2A-4, second floor,
(12) Columns buckled at different planes. Columns buckled
worst where there are no spirals or where spirals are cut.
Columns suffered worst displacement where the eccentricity
of the columnar reinforcement assembly is more acute.
b. Summary of alleged defects as reported by Engr. Antonio
Avecilla.
Columns are first (or ground) floor, unless otherwise stated.
(1) Column D4 — Spacing of spiral is changed from 2" to 5"
on centers,
(2) Column D5 — No spiral up to a height of 22" from the
ground floor,
69
(3) Column D6 — Spacing of spiral over 4 l/2,
(4) Column D7 — Lack of lateral ties,
(5) Column C7 — Absence of spiral to a height of 20" from
the ground level, Spirals are at 2" from the exterior column
face and 6" from the inner column face,
(6) Column B6 — Lack of spiral on 2 feet below the floor
beams,
(7) Column B5 — Lack of spirals at a distance of 26' below
the beam,
(8) Column B7 — Spirals not tied to vertical reinforcing bars,
Spirals are uneven 2" to 4",
(9) Column A3 — Lack of lateral ties,
(10) Column A4 — Spirals cut off and welded to two
separate clustered vertical bars,
(11) Column A4 — (second floor Column is completely
hollow to a height of 30"
(12) Column A5 — Spirals were cut from the floor level to the
bottom of the spandrel beam to a height of 6 feet,
(13) Column A6 — No spirals up to a height of 30' above the
ground floor level,
(14) Column A7— Lack of lateralties or spirals,
c. Summary of alleged defects as reported by the experts of
the Third-Party defendants.
Ground floor columns.
(1) Column A4 — Spirals are cut,
(2) Column A5 — Spirals are cut,
(3) Column A6 — At lower 18" spirals are absent,
(4) Column A7 — Ties are too far apart,
(5) Column B5 — At upper fourth of column spirals are either
absent or improperly spliced,
(6) Column B6 — At upper 2 feet spirals are absent,
(7) Column B7 — At upper fourth of column spirals missing
or improperly spliced.
(8) Column C7— Spirals are absent at lowest 18"
(9) Column D5 — At lowest 2 feet spirals are absent,
(10) Column D6 — Spirals are too far apart and apparently
improperly spliced,
(11) Column D7 — Lateral ties are too far apart, spaced 16"
on centers.
There is merit in many of these allegations. The explanations
given by the engineering experts for the defendants are
either contrary to general principles of engineering design for
reinforced concrete or not applicable to the requirements for
ductility and strength of reinforced concrete in earthquake-
resistant design and construction.
We shall first classify and consider defects which may have
appreciable bearing or relation to' the earthquake-resistant
property of the building.
As heretofore mentioned, details which insure ductility at or
near the connections between columns and girders are
desirable in earthquake resistant design and construction.
The omission of spirals and ties or hoops at the bottom
and/or tops of columns contributed greatly to the loss of
earthquake-resistant strength. The plans and specifications
required that these spirals and ties be carried from the floor
level to the bottom reinforcement of the deeper beam (p. 1,
Specifications, p. 970, Reference 11). There were several
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clear evidences where this was not done especially in some
of the ground floor columns which failed.
There were also unmistakable evidences that the spacings
of the spirals and ties in the columns were in many cases
greater than those called for in the plans and specifications
resulting again in loss of earthquake-resistant strength. The
assertion of the engineering experts for the defendants that
the improper spacings and the cutting of the spirals did not
result in loss of strength in the column cannot be maintained
and is certainly contrary to the general principles of column
design and construction. And even granting that there be no
loss in strength at the yield point (an assumption which is
very doubtful) the cutting or improper spacings of spirals will
certainly result in the loss of the plastic range or ductility in
the column and it is precisely this plastic range or ductility
which is desirable and needed for earthquake-resistant
strength.
There is no excuse for the cavity or hollow portion in the
column A4, second floor, and although this column did not
fail, this is certainly an evidence on the part of the contractor
of poor construction.
The effect of eccentricities in the columns which were
measured at about 2 1/2 inches maximum may be
approximated in relation to column loads and column and
beam moments. The main effect of eccentricity is to change
the beam or girder span. The effect on the measured
eccentricity of 2 inches, therefore, is to increase or diminish
the column load by a maximum of about 1% and to increase
or diminish the column or beam movements by about a
maximum of 2%. While these can certainly be absorbed
within the factor of safety, they nevertheless diminish said
factor of safety.
The cutting of the spirals in column A5, ground floor is the
subject of great contention between the parties and
deserves special consideration.
The proper placing of the main reinforcements and spirals in
column A5, ground floor, is the responsibility of the general
contractor which is the UCCI. The burden of proof, therefore,
that this cutting was done by others is upon the defendants.
Other than a strong allegation and assertion that it is the
plumber or his men who may have done the cutting (and this
was flatly denied by the plumber) no conclusive proof was
presented. The engineering experts for the defendants
asserted that they could have no motivation for cutting the
bar because they can simply replace the spirals by wrapping
around a new set of spirals. This is not quite correct. There
is evidence to show that the pouring of concrete for columns
was sometimes done through the beam and girder
reinforcements which were already in place as in the case of
column A4 second floor. If the reinforcement for the girder
and column is to subsequently wrap around the spirals, this
would not do for the elasticity of steel would prevent the
making of tight column spirals and loose or improper spirals
would result. The proper way is to produce correct spirals
down from the top of the main column bars, a procedure
which can not be done if either the beam or girder
reinforcement is already in place. The engineering experts
for the defendants strongly assert and apparently believe
that the cutting of the spirals did not materially diminish the
strength of the column. This belief together with the difficulty
of slipping the spirals on the top of the column once the
beam reinforcement is in place may be a sufficient
motivation for the cutting of the spirals themselves. The
defendants, therefore, should be held responsible for the
consequences arising from the loss of strength or ductility in
column A5 which may have contributed to the damages
sustained by the building.
The lack of proper length of splicing of spirals was also
proven in the visible spirals of the columns where spalling of
the concrete cover had taken place. This lack of proper
splicing contributed in a small measure to the loss of
strength.
The effects of all the other proven and visible defects
although nor can certainly be accumulated so that they can
contribute to an appreciable loss in earthquake-resistant
strength. The engineering experts for the defendants
submitted an estimate on some of these defects in the
amount of a few percent. If accumulated, therefore, including
the effect of eccentricity in the column the loss in strength
due to these minor defects may run to as much as ten
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 percent.
To recapitulate: the omission or lack of spirals and ties at the
bottom and/or at the top of some of the ground floor columns
contributed greatly to the collapse of the PBA building since
it is at these points where the greater part of the failure
occurred. The liability for the cutting of the spirals in column
A5, ground floor, in the considered opinion of the
Commissioner rests on the shoulders of the defendants and
the loss of strength in this column contributed to the damage
which occurred.
It is reasonable to conclude, therefore, that the proven
defects, deficiencies and violations of the plans and
specifications of the PBA building contributed to the
damages which resulted during the earthquake of August 2,
1968 and the vice of these defects and deficiencies is that
they not only increase but also aggravate the weakness
mentioned in the design of the structure. In other words,
these defects and deficiencies not only tend to add but also
to multiply the effects of the shortcomings in the design of
the building. We may say, therefore, that the defects and
deficiencies in the construction contributed greatly to the
damage which occurred.
Since the execution and supervision of the construction work
in the hands of the contractor is direct and positive, the
presence of existence of all the major defects and
deficiencies noted and proven manifests an element of
negligence which may amount to imprudence in the
construction work. (pp. 42-49, Commissioners Report).
As the parties most directly concerned with this portion of the
Commissioner's report, the defendants voiced their objections to the same on
the grounds that the Commissioner should have specified the defects found
by him to be "meritorious"; that the Commissioner failed to indicate the
number of cases where the spirals and ties were not carried from the floor
level to the bottom reinforcement of the deeper beam, or where the spacing
of the spirals and ties in the columns were greater than that called for in the
specifications; that the hollow in column A4, second floor, the eccentricities in
the columns, the lack of proper length of splicing of spirals, and the cut in the
spirals in column A5, ground floor, did not aggravate or contribute to the
damage suffered by the building; that the defects in the construction were
within the tolerable margin of safety; and that the cutting of the spirals in
column A5, ground floor, was done by the plumber or his men, and not by the
defendants.
Answering the said objections, the Commissioner stated that, since many of
the defects were minor only the totality of the defects was considered. As
regards the objection as to failure to state the number of cases where the
spirals and ties were not carried from the floor level to the bottom
reinforcement, the Commissioner specified groundfloor columns B-6 and C-5
the first one without spirals for 03 inches at the top, and in the latter, there
were no spirals for 10 inches at the bottom. The Commissioner likewise
specified the first storey columns where the spacings were greater than that
called for in the specifications to be columns B-5, B-6, C-7, C-6, C-5, D-5 and
B-7. The objection to the failure of the Commissioner to specify the number
of columns where there was lack of proper length of splicing of spirals, the
Commissioner mentioned groundfloor columns B-6 and B-5 where all the
splices were less than 1-1/2 turns and were not welded, resulting in some
loss of strength which could be critical near the ends of the columns. He
answered the supposition of the defendants that the spirals and the ties must
have been looted, by calling attention to the fact that the missing spirals and
ties were only in two out of the 25 columns, which rendered said supposition
to be improbable.
The Commissioner conceded that the hollow in column A-4, second floor, did
not aggravate or contribute to the damage, but averred that it is "evidence of
poor construction." On the claim that the eccentricity could be absorbed
within the factor of safety, the Commissioner answered that, while the same
may be true, it also contributed to or aggravated the damage suffered by the
building.
The objection regarding the cutting of the spirals in Column A-5, groundfloor,
was answered by the Commissioner by reiterating the observation in his
report that irrespective of who did the cutting of the spirals, the defendants
should be held liable for the same as the general contractor of the building.
The Commissioner further stated that the loss of strength of the cut spirals
and inelastic deflections of the supposed lattice work defeated the purpose of
the spiral containment in the column and resulted in the loss of strength, as
evidenced by the actual failure of this column.
Again, the Court concurs in the findings of the Commissioner on these issues
and fails to find any sufficient cause to disregard or modify the same. As
found by the Commissioner, the "deviations made by the defendants from the
plans and specifications caused indirectly the damage sustained and that
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those deviations not only added but also aggravated the damage caused by
the defects in the plans and specifications prepared by third-party
defendants. (Rollo, Vol. I, pp. 128-142)

The afore-mentioned facts clearly indicate the wanton negligence of both the
defendant and the third-party defendants in effecting the plans, designs,
specifications, and construction of the PBA building and We hold such
negligence as equivalent to bad faith in the performance of their respective
tasks.

Relative thereto, the ruling of the Supreme Court in Tucker v. Milan (49 O.G.
4379, 4380) which may be in point in this case reads:

One who negligently creates a dangerous condition cannot escape liability

for the natural and probable consequences thereof, although the act of a
third person, or an act of God for which he is not responsible, intervenes to
precipitate the loss.

As already discussed, the destruction was not purely an act of God. Truth to
tell hundreds of ancient buildings in the vicinity were hardly affected by the
earthquake. Only one thing spells out the fatal difference; gross negligence
and evident bad faith, without which the damage would not have occurred.

WHEREFORE, the decision appealed from is hereby MODIFIED and

considering the special and environmental circumstances of this case, We
deem it reasonable to render a decision imposing, as We do hereby impose,
upon the defendant and the third-party defendants (with the exception of
Roman Ozaeta) a solidary (Art. 1723, Civil Code, Supra, p. 10) indemnity in
favor of the Philippine Bar Association of FIVE MILLION (P5,000,000.00)
Pesos to cover all damages (with the exception of attorney's fees)
occasioned by the loss of the building (including interest charges and lost
rentals) and an additional ONE HUNDRED THOUSAND (P100,000.00)
Pesos as and for attorney's fees, the total sum being payable upon the
finality of this decision. Upon failure to pay on such finality, twelve (12%) per
cent interest per annum shall be imposed upon afore-mentioned amounts
from finality until paid. Solidary costs against the defendant and third-party
defendants (except Roman Ozaeta).

SO ORDERED.

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