G.R. No.
128690 January 21, 1999 proposing to sell to ABS-CBN airing rights over this package of 52
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
HONORABLE COURT OF APPEALS, REPUBLIC BROADCASTING CORP,
VIVA PRODUCTION, INC., and VICENTE DEL ROSARIO, respondents.
DAVIDE, JR., CJ.:
In this petition for review on certiorari, petitioner ABS-CBN
Broadcasting Corp. (hereafter ABS-CBN) seeks to reverse and set
aside the decision 1 of 31 October 1996 and the resolution 2 of 10
March 1997 of the Court of Appeals in CA-G.R. CV No. 44125. The
former affirmed with modification the decision 3 of 28 April 1993 of
the Regional Trial Court (RTC) of Quezon City, Branch 80, in Civil Case
No. Q-92-12309. The latter denied the motion to reconsider the
decision of 31 October 1996.
The antecedents, as found by the RTC and adopted by the Court of
Appeals, are as follows:
In 1990, ABS-CBN and Viva executed a Film Exhibition Agreement
(Exh. "A") whereby Viva gave ABS-CBN an exclusive right to exhibit
some Viva films. Sometime in December 1991, in accordance with
paragraph 2.4 [sic] of said agreement stating that —.
1.4 ABS-CBN shall have the right of first refusal to the next twenty-
four (24) Viva films for TV telecast under such terms as may be
agreed upon by the parties hereto, provided, however, that such
right shall be exercised by ABS-CBN from the actual offer in writing.
Viva, through defendant Del Rosario, offered ABS-CBN, through its
vice-president Charo Santos-Concio, a list of three(3) film packages
(36 title) from which ABS-CBN may exercise its right of first refusal
under the afore-said agreement (Exhs. "1" par, 2, "2," "2-A'' and "2-
B"-Viva). ABS-CBN, however through Mrs. Concio, "can tick off only
ten (10) titles" (from the list) "we can purchase" (Exh. "3" - Viva) and
therefore did not accept said list (TSN, June 8, 1992, pp. 9-10). The
titles ticked off by Mrs. Concio are not the subject of the case at bar
except the film ''Maging Sino Ka Man."
For further enlightenment, this rejection letter dated January 06,
1992 (Exh "3" - Viva) is hereby quoted:
6 January 1992
Dear Vic,
This is not a very formal business letter I am writing to you as I
would like to express my difficulty in recommending the purchase of
the three film packages you are offering ABS-CBN.
From among the three packages I can only tick off 10 titles we can
purchase. Please see attached. I hope you will understand my
position. Most of the action pictures in the list do not have big
action stars in the cast. They are not for primetime. In line with this I
wish to mention that I have not scheduled for telecast several action
pictures in out very first contract because of the cheap production
value of these movies as well as the lack of big action stars. As a film
producer, I am sure you understand what I am trying to say as Viva
produces only big action pictures.
In fact, I would like to request two (2) additional runs for these
movies as I can only schedule them in our non-primetime slots. We
have to cover the amount that was paid for these movies because as
you very well know that non-primetime advertising rates are very
low. These are the unaired titles in the first contract.
1. Kontra Persa [sic].
2. Raider Platoon.
3. Underground guerillas
4. Tiger Command
5. Boy de Sabog
6. Lady Commando
7. Batang Matadero
8. Rebelyon
I hope you will consider this request of mine.
The other dramatic films have been offered to us before and have
been rejected because of the ruling of MTRCB to have them aired at
9:00 p.m. due to their very adult themes.
As for the 10 titles I have choosen [sic] from the 3 packages please
consider including all the other Viva movies produced last year. I
have quite an attractive offer to make.
Thanking you and with my warmest regards.
(Signed)
Charo Santos-Concio
On February 27, 1992, defendant Del Rosario approached ABS-CBN's
Ms. Concio, with a list consisting of 52 original movie titles (i.e. not
yet aired on television) including the 14 titles subject of the present
case, as well as 104 re-runs (previously aired on television) from
which ABS-CBN may choose another 52 titles, as a total of 156 titles,
originals and 52 re-runs for P60,000,000.00 of which P30,000,000.00
will be in cash and P30,000,000.00 worth of television spots (Exh.
"4" to "4-C" Viva; "9" -Viva).
On April 2, 1992, defendant Del Rosario and ABS-CBN general
manager, Eugenio Lopez III, met at the Tamarind Grill Restaurant in
Quezon City to discuss the package proposal of Viva. What
transpired in that lunch meeting is the subject of conflicting
versions. Mr. Lopez testified that he and Mr. Del Rosario allegedly
agreed that ABS-CRN was granted exclusive film rights to fourteen
(14) films for a total consideration of P36 million; that he allegedly
put this agreement as to the price and number of films in a "napkin''
and signed it and gave it to Mr. Del Rosario (Exh. D; TSN, pp. 24-26,
77-78, June 8, 1992). On the other hand, Del Rosario denied having
made any agreement with Lopez regarding the 14 Viva films; denied
the existence of a napkin in which Lopez wrote something; and
insisted that what he and Lopez discussed at the lunch meeting was
Viva's film package offer of 104 films (52 originals and 52 re-runs) for
a total price of P60 million. Mr. Lopez promising [sic]to make a
counter proposal which came in the form of a proposal contract
Annex "C" of the complaint (Exh. "1"·- Viva; Exh. "C" - ABS-CBN).
On April 06, 1992, Del Rosario and Mr. Graciano Gozon of RBS Senior
vice-president for Finance discussed the terms and conditions of
Viva's offer to sell the 104 films, after the rejection of the same
package by ABS-CBN.
On April 07, 1992, defendant Del Rosario received through his
secretary, a handwritten note from Ms. Concio, (Exh. "5" - Viva),
which reads: "Here's the draft of the contract. I hope you find
everything in order," to which was attached a draft exhibition
agreement (Exh. "C''- ABS-CBN; Exh. "9" - Viva, p. 3) a counter-
proposal covering 53 films, 52 of which came from the list sent by
defendant Del Rosario and one film was added by Ms. Concio, for a
consideration of P35 million. Exhibit "C" provides that ABS-CBN is
granted films right to 53 films and contains a right of first refusal to
"1992 Viva Films." The said counter proposal was however rejected
by Viva's Board of Directors [in the] evening of the same day, April 7,
1992, as Viva would not sell anything less than the package of 104
films for P60 million pesos (Exh. "9" - Viva), and such rejection was
relayed to Ms. Concio.
On April 29, 1992, after the rejection of ABS-CBN and following
several negotiations and meetings defendant Del Rosario and Viva's
President Teresita Cruz, in consideration of P60 million, signed a
letter of agreement dated April 24, 1992. granting RBS the exclusive
right to air 104 Viva-produced and/or acquired films (Exh. "7-A" -
RBS; Exh. "4" - RBS) including the fourteen (14) films subject of the
present case. 4
On 27 May 1992, ABS-CBN filed before the RTC a complaint for
specific performance with a prayer for a writ of preliminary
injunction and/or temporary restraining order against private
respondents Republic Broadcasting Corporation 5 (hereafter RBS ),
Viva Production (hereafter VIVA), and Vicente Del Rosario. The
complaint was docketed as Civil Case No. Q-92-12309.
On 27 May 1992, RTC issued a temporary restraining
order 6 enjoining private respondents from proceeding with the
airing, broadcasting, and televising of the fourteen VIVA films
subject of the controversy, starting with the film Maging Sino Ka
Man, which was scheduled to be shown on private respondents RBS'
channel 7 at seven o'clock in the evening of said date.
On 17 June 1992, after appropriate proceedings, the RTC issued an
order 7 directing the issuance of a writ of preliminary injunction
upon ABS-CBN's posting of P35 million bond. ABS-CBN moved for
the reduction of the bond, 8 while private respondents moved for
reconsideration of the order and offered to put up a
counterbound. 9
In the meantime, private respondents filed separate answers with
counterclaim. 10 RBS also set up a cross-claim against VIVA..
On 3 August 1992, the RTC issued an order 11 dissolving the writ of
preliminary injunction upon the posting by RBS of a P30 million
counterbond to answer for whatever damages ABS-CBN might suffer
by virtue of such dissolution. However, it reduced petitioner's
injunction bond to P15 million as a condition precedent for the
reinstatement of the writ of preliminary injunction should private
respondents be unable to post a counterbond.
At the pre-trial 12 on 6 August 1992, the parties, upon suggestion of
the court, agreed to explore the possibility of an amicable
settlement. In the meantime, RBS prayed for and was granted
reasonable time within which to put up a P30 million counterbond in
the event that no settlement would be reached.
As the parties failed to enter into an amicable settlement RBS
posted on 1 October 1992 a counterbond, which the RTC approved
in its Order of 15 October 1992. 13
On 19 October 1992, ABS-CBN filed a motion for
reconsideration 14 of the 3 August and 15 October 1992 Orders,
which RBS opposed. 15
On 29 October 1992, the RTC conducted a pre-trial. 16
Pending resolution of its motion for reconsideration, ABS-CBN filed
with the Court of Appeals a petition 17challenging the RTC's Orders
of 3 August and 15 October 1992 and praying for the issuance of a
writ of preliminary injunction to enjoin the RTC from enforcing said
orders. The case was docketed as CA-G.R. SP No. 29300.
On 3 November 1992, the Court of Appeals issued a temporary
restraining order 18 to enjoin the airing, broadcasting, and televising
of any or all of the films involved in the controversy.
On 18 December 1992, the Court of Appeals promulgated a
decision 19 dismissing the petition in CA -G.R. No. 29300 for being
premature. ABS-CBN challenged the dismissal in a petition for
review filed with this Court on 19 January 1993, which was docketed
as G.R. No. 108363.
In the meantime the RTC received the evidence for the parties in
Civil Case No. Q-192-1209. Thereafter, on 28 April 1993, it rendered
a decision 20 in favor of RBS and VIVA and against ABS-CBN disposing
as follows:
WHEREFORE, under cool reflection and prescinding from the
foregoing, judgments is rendered in favor of defendants and against
the plaintiff.
(1) The complaint is hereby dismissed;
(2) Plaintiff ABS-CBN is ordered to pay defendant RBS the following:
a) P107,727.00, the amount of premium paid by RBS to the surety
which issued defendant RBS's bond to lift the injunction;
b) P191,843.00 for the amount of print advertisement for "Maging
Sino Ka Man" in various newspapers;
c) Attorney's fees in the amount of P1 million;
d) P5 million as and by way of moral damages;
e) P5 million as and by way of exemplary damages;
(3) For defendant VIVA, plaintiff ABS-CBN is ordered to pay
P212,000.00 by way of reasonable attorney's fees.
(4) The cross-claim of defendant RBS against defendant VIVA is
dismissed.
(5) Plaintiff to pay the costs.
According to the RTC, there was no meeting of minds on the price
and terms of the offer. The alleged agreement between Lopez III and
Del Rosario was subject to the approval of the VIVA Board of
Directors, and said agreement was disapproved during the meeting
of the Board on 7 April 1992. Hence, there was no basis for ABS-
CBN's demand that VIVA signed the 1992 Film Exhibition Agreement.
Furthermore, the right of first refusal under the 1990 Film Exhibition
Agreement had previously been exercised per Ms. Concio's letter to
Del Rosario ticking off ten titles acceptable to them, which would
have made the 1992 agreement an entirely new contract.
On 21 June 1993, this Court denied 21 ABS-CBN's petition for review
in G.R. No. 108363, as no reversible error was committed by the
Court of Appeals in its challenged decision and the case had
"become moot and academic in view of the dismissal of the main
action by the court a quo in its decision" of 28 April 1993.
Aggrieved by the RTC's decision, ABS-CBN appealed to the Court of
Appeals claiming that there was a perfected contract between ABS-
CBN and VIVA granting ABS-CBN the exclusive right to exhibit the
subject films. Private respondents VIVA and Del Rosario also
appealed seeking moral and exemplary damages and additional
attorney's fees.
In its decision of 31 October 1996, the Court of Appeals agreed with
the RTC that the contract between ABS-CBN and VIVA had not been
perfected, absent the approval by the VIVA Board of Directors of
whatever Del Rosario, it's agent, might have agreed with Lopez III.
The appellate court did not even believe ABS-CBN's evidence that
Lopez III actually wrote down such an agreement on a "napkin," as
the same was never produced in court. It likewise rejected ABS-
CBN's insistence on its right of first refusal and ratiocinated as
follows:
As regards the matter of right of first refusal, it may be true that a
Film Exhibition Agreement was entered into between Appellant ABS-
CBN and appellant VIVA under Exhibit "A" in 1990, and that parag.
1.4 thereof provides:
1.4 ABS-CBN shall have the right of first refusal to the next twenty-
four (24) VIVA films for TV telecast under such terms as may be
agreed upon by the parties hereto, provided, however, that such
right shall be exercised by ABS-CBN within a period of fifteen (15)
days from the actual offer in writing (Records, p. 14).
[H]owever, it is very clear that said right of first refusal in favor of
ABS-CBN shall still be subject to such terms as may be agreed upon
by the parties thereto, and that the said right shall be exercised by
ABS-CBN within fifteen (15) days from the actual offer in writing.
Said parag. 1.4 of the agreement Exhibit "A" on the right of first
refusal did not fix the price of the film right to the twenty-four (24)
films, nor did it specify the terms thereof. The same are still left to
be agreed upon by the parties.
In the instant case, ABS-CBN's letter of rejection Exhibit 3 (Records,
p. 89) stated that it can only tick off ten (10) films, and the draft
contract Exhibit "C" accepted only fourteen (14) films, while parag.
1.4 of Exhibit "A'' speaks of the next twenty-four (24) films.
The offer of V1VA was sometime in December 1991 (Exhibits 2, 2-A.
2-B; Records, pp. 86-88; Decision, p. 11, Records, p. 1150), when the
first list of VIVA films was sent by Mr. Del Rosario to ABS-CBN. The
Vice President of ABS-CBN, Ms. Charo Santos-Concio, sent a letter
dated January 6, 1992 (Exhibit 3, Records, p. 89) where ABS-CBN
exercised its right of refusal by rejecting the offer of VIVA.. As aptly
observed by the trial court, with the said letter of Mrs. Concio of
January 6, 1992, ABS-CBN had lost its right of first refusal. And even
if We reckon the fifteen (15) day period from February 27, 1992
(Exhibit 4 to 4-C) when another list was sent to ABS-CBN after the
letter of Mrs. Concio, still the fifteen (15) day period within which
ABS-CBN shall exercise its right of first refusal has already expired.22
Accordingly, respondent court sustained the award of actual
damages consisting in the cost of print advertisements and the
premium payments for the counterbond, there being adequate
proof of the pecuniary loss which RBS had suffered as a result of the
filing of the complaint by ABS-CBN. As to the award of moral
damages, the Court of Appeals found reasonable basis therefor,
holding that RBS's reputation was debased by the filing of the
complaint in Civil Case No. Q-92-12309 and by the non-showing of
the film "Maging Sino Ka Man." Respondent court also held that
exemplary damages were correctly imposed by way of example or
correction for the public good in view of the filing of the complaint
despite petitioner's knowledge that the contract with VIVA had not
been perfected, It also upheld the award of attorney's fees,
reasoning that with ABS-CBN's act of instituting Civil Case No, Q-92-
1209, RBS was "unnecessarily forced to litigate." The appellate
court, however, reduced the awards of moral damages to P2 million,
exemplary damages to P2 million, and attorney's fees to P500,
000.00.
On the other hand, respondent Court of Appeals denied VIVA and
Del Rosario's appeal because it was "RBS and not VIVA which was
actually prejudiced when the complaint was filed by ABS-CBN."
Its motion for reconsideration having been denied, ABS-CBN filed
the petition in this case, contending that the Court of Appeals
gravely erred in
I
. . . RULING THAT THERE WAS NO PERFECTED CONTRACT BETWEEN
PETITIONER AND PRIVATE RESPONDENT VIVA NOTWITHSTANDING
PREPONDERANCE OF EVIDENCE ADDUCED BY PETITIONER TO THE
CONTRARY.
II
. . . IN AWARDING ACTUAL AND COMPENSATORY DAMAGES IN
FAVOR OF PRIVATE RESPONDENT RBS.
III
. . . IN AWARDING MORAL AND EXEMPLARY DAMAGES IN FAVOR OF
PRIVATE RESPONDENT RBS.
IV
. . . IN AWARDING ATTORNEY'S FEES IN FAVOR OF RBS.
ABS-CBN claims that it had yet to fully exercise its right of first
refusal over twenty-four titles under the 1990 Film Exhibition
Agreement, as it had chosen only ten titles from the first list. It
insists that we give credence to Lopez's testimony that he and Del
Rosario met at the Tamarind Grill Restaurant, discussed the terms
and conditions of the second list (the 1992 Film Exhibition
Agreement) and upon agreement thereon, wrote the same on a
paper napkin. It also asserts that the contract has already been
effective, as the elements thereof, namely, consent, object, and
consideration were established. It then concludes that the Court of
Appeals' pronouncements were not supported by law and
jurisprudence, as per our decision of 1 December 1995 in Limketkai
Sons Milling, Inc. v. Court of Appeals, 23 which cited Toyota Shaw,
Inc. v. Court of Appeals, 24 Ang Yu Asuncion v. Court of
Appeals, 25 and Villonco Realty Company v. Bormaheco. Inc. 26
Anent the actual damages awarded to RBS, ABS-CBN disavows
liability therefor. RBS spent for the premium on the counterbond of
its own volition in order to negate the injunction issued by the trial
court after the parties had ventilated their respective positions
during the hearings for the purpose. The filing of the counterbond
was an option available to RBS, but it can hardly be argued that ABS-
CBN compelled RBS to incur such expense. Besides, RBS had another
available option, i.e., move for the dissolution or the injunction; or if
it was determined to put up a counterbond, it could have presented
a cash bond. Furthermore under Article 2203 of the Civil Code, the
party suffering loss or injury is also required to exercise the diligence
of a good father of a family to minimize the damages resulting from
the act or omission. As regards the cost of print advertisements, RBS
had not convincingly established that this was a loss attributable to
the non showing "Maging Sino Ka Man"; on the contrary, it was
brought out during trial that with or without the case or the
injunction, RBS would have spent such an amount to generate
interest in the film.
ABS-CBN further contends that there was no clear basis for the
awards of moral and exemplary damages. The controversy involving
ABS-CBN and RBS did not in any way originate from business
transaction between them. The claims for such damages did not
arise from any contractual dealings or from specific acts committed
by ABS-CBN against RBS that may be characterized as wanton,
fraudulent, or reckless; they arose by virtue only of the filing of the
complaint, An award of moral and exemplary damages is not
warranted where the record is bereft of any proof that a party acted
maliciously or in bad faith in filing an action. 27 In any case, free
resort to courts for redress of wrongs is a matter of public policy.
The law recognizes the right of every one to sue for that which he
honestly believes to be his right without fear of standing trial for
damages where by lack of sufficient evidence, legal technicalities, or
a different interpretation of the laws on the matter, the case would
lose ground. 28 One who makes use of his own legal right does no
injury. 29 If damage results front the filing of the complaint, it
is damnum absque injuria. 30 Besides, moral damages are generally
not awarded in favor of a juridical person, unless it enjoys a good
reputation that was debased by the offending party resulting in
social humiliation. 31
As regards the award of attorney's fees, ABS-CBN maintains that the
same had no factual, legal, or equitable justification. In sustaining
the trial court's award, the Court of Appeals acted in clear disregard
of the doctrines laid down in Buan v. Camaganacan 32 that the text
of the decision should state the reason why attorney's fees are being
awarded; otherwise, the award should be disallowed. Besides, no
bad faith has been imputed on, much less proved as having been
committed by, ABS-CBN. It has been held that "where no sufficient
showing of bad faith would be reflected in a party' s persistence in a
case other than an erroneous conviction of the righteousness of his
cause, attorney's fees shall not be recovered as cost." 33
On the other hand, RBS asserts that there was no perfected contract
between ABS-CBN and VIVA absent any meeting of minds between
them regarding the object and consideration of the alleged contract.
It affirms that the ABS-CBN's claim of a right of first refusal was
correctly rejected by the trial court. RBS insist the premium it had
paid for the counterbond constituted a pecuniary loss upon which it
may recover. It was obliged to put up the counterbound due to the
injunction procured by ABS-CBN. Since the trial court found that
ABS-CBN had no cause of action or valid claim against RBS and,
therefore not entitled to the writ of injunction, RBS could recover
from ABS-CBN the premium paid on the counterbond. Contrary to
the claim of ABS-CBN, the cash bond would prove to be more
expensive, as the loss would be equivalent to the cost of money RBS
would forego in case the P30 million came from its funds or was
borrowed from banks.
RBS likewise asserts that it was entitled to the cost of
advertisements for the cancelled showing of the film "Maging Sino
Ka Man" because the print advertisements were put out to
announce the showing on a particular day and hour on Channel
7, i.e., in its entirety at one time, not a series to be shown on a
periodic basis. Hence, the print advertisement were good and
relevant for the particular date showing, and since the film could not
be shown on that particular date and hour because of the
injunction, the expenses for the advertisements had gone to waste.
As regards moral and exemplary damages, RBS asserts that ABS-CBN
filed the case and secured injunctions purely for the purpose of
harassing and prejudicing RBS. Pursuant then to Article 19 and 21 of
the Civil Code, ABS-CBN must be held liable for such
damages. Citing Tolentino, 34 damages may be awarded in cases of
abuse of rights even if the act done is not illicit and there is abuse of
rights were plaintiff institutes and action purely for the purpose of
harassing or prejudicing the defendant.
In support of its stand that a juridical entity can recover moral and
exemplary damages, private respondents RBS cited People
v. Manero, 35 where it was stated that such entity may recover moral
and exemplary damages if it has a good reputation that is debased
resulting in social humiliation. it then ratiocinates; thus:
There can be no doubt that RBS' reputation has been debased by
ABS-CBN's acts in this case. When RBS was not able to fulfill its
commitment to the viewing public to show the film "Maging Sino Ka
Man" on the scheduled dates and times (and on two occasions that
RBS advertised), it suffered serious embarrassment and social
humiliation. When the showing was canceled, late viewers called up
RBS' offices and subjected RBS to verbal abuse ("Announce kayo
nang announce, hindi ninyo naman ilalabas," "nanloloko yata kayo")
(Exh. 3-RBS, par. 3). This alone was not something RBS brought upon
itself. it was exactly what ABS-CBN had planned to happen.
The amount of moral and exemplary damages cannot be said to be
excessive. Two reasons justify the amount of the award.
The first is that the humiliation suffered by RBS is national extent.
RBS operations as a broadcasting company is [sic] nationwide. Its
clientele, like that of ABS-CBN, consists of those who own and watch
television. It is not an exaggeration to state, and it is a matter of
judicial notice that almost every other person in the country
watches television. The humiliation suffered by RBS is multiplied by
the number of televiewers who had anticipated the showing of the
film "Maging Sino Ka Man" on May 28 and November 3, 1992 but
did not see it owing to the cancellation. Added to this are the
advertisers who had placed commercial spots for the telecast and to
whom RBS had a commitment in consideration of the placement to
show the film in the dates and times specified.
The second is that it is a competitor that caused RBS to suffer the
humiliation. The humiliation and injury are far greater in degree
when caused by an entity whose ultimate business objective is to
lure customers (viewers in this case) away from the competition. 36
For their part, VIVA and Vicente del Rosario contend that the
findings of fact of the trial court and the Court of Appeals do not
support ABS-CBN's claim that there was a perfected contract. Such
factual findings can no longer be disturbed in this petition for review
under Rule 45, as only questions of law can be raised, not questions
of fact. On the issue of damages and attorneys fees, they adopted
the arguments of RBS.
The key issues for our consideration are (1) whether there was a
perfected contract between VIVA and ABS-CBN, and (2) whether RBS
is entitled to damages and attorney's fees. It may be noted that the
award of attorney's fees of P212,000 in favor of VIVA is not assigned
as another error.
I.
The first issue should be resolved against ABS-CBN. A contract is a
meeting of minds between two persons whereby one binds himself
to give something or to render some service to another 37 for a
consideration. there is no contract unless the following requisites
concur: (1) consent of the contracting parties; (2) object certain
which is the subject of the contract; and (3) cause of the obligation,
which is established. 38 A contract undergoes three stages:
(a) preparation, conception, or generation, which is the period of
negotiation and bargaining, ending at the moment of agreement of
the parties;
(b) perfection or birth of the contract, which is the moment when
the parties come to agree on the terms of the contract; and
(c) consummation or death, which is the fulfillment or performance
of the terms agreed upon in the contract. 39
Contracts that are consensual in nature are perfected upon mere
meeting of the minds, Once there is concurrence between the offer
and the acceptance upon the subject matter, consideration, and
terms of payment a contract is produced. The offer must be certain.
To convert the offer into a contract, the acceptance must be
absolute and must not qualify the terms of the offer; it must be
plain, unequivocal, unconditional, and without variance of any sort
from the proposal. A qualified acceptance, or one that involves a
new proposal, constitutes a counter-offer and is a rejection of the
original offer. Consequently, when something is desired which is not
exactly what is proposed in the offer, such acceptance is not
sufficient to generate consent because any modification or variation
from the terms of the offer annuls the offer. 40
When Mr. Del Rosario of VIVA met with Mr. Lopez of ABS-CBN at the
Tamarind Grill on 2 April 1992 to discuss the package of films, said
package of 104 VIVA films was VIVA's offer to ABS-CBN to enter into
a new Film Exhibition Agreement. But ABS-CBN, sent, through Ms.
Concio, a counter-proposal in the form of a draft contract proposing
exhibition of 53 films for a consideration of P35 million. This
counter-proposal could be nothing less than the counter-offer of Mr.
Lopez during his conference with Del Rosario at Tamarind Grill
Restaurant. Clearly, there was no acceptance of VIVA's offer, for it
was met by a counter-offer which substantially varied the terms of
the offer.
ABS-CBN's reliance in Limketkai Sons Milling, Inc. v. Court of
Appeals 41 and Villonco Realty Company v. Bormaheco, Inc., 42 is
misplaced. In these cases, it was held that an acceptance may
contain a request for certain changes in the terms of the offer and
yet be a binding acceptance as long as "it is clear that the meaning
of the acceptance is positively and unequivocally to accept the offer,
whether such request is granted or not." This ruling was, however,
reversed in the resolution of 29 March 1996, 43 which ruled that the
acceptance of all offer must be unqualified and absolute, i.e., it
"must be identical in all respects with that of the offer so as to
produce consent or meeting of the minds."
On the other hand, in Villonco, cited in Limketkai, the alleged
changes in the revised counter-offer were not material but merely
clarificatory of what had previously been agreed upon. It cited the
statement in Stuart v. Franklin Life Insurance Co. 44 that "a vendor's
change in a phrase of the offer to purchase, which change does not
essentially change the terms of the offer, does not amount to a
rejection of the offer and the tender of a counter-offer." 45 However,
when any of the elements of the contract is modified upon
acceptance, such alteration amounts to a counter-offer.
In the case at bar, ABS-CBN made no unqualified acceptance of
VIVA's offer. Hence, they underwent a period of bargaining. ABS-
CBN then formalized its counter-proposals or counter-offer in a draft
contract, VIVA through its Board of Directors, rejected such counter-
offer, Even if it be conceded arguendo that Del Rosario had accepted
the counter-offer, the acceptance did not bind VIVA, as there was no
proof whatsoever that Del Rosario had the specific authority to do
so.
Under Corporation Code, 46 unless otherwise provided by said Code,
corporate powers, such as the power; to enter into contracts; are
exercised by the Board of Directors. However, the Board may
delegate such powers to either an executive committee or officials
or contracted managers. The delegation, except for the executive
committee, must be for specific purposes, 47 Delegation to officers
makes the latter agents of the corporation; accordingly, the general
rules of agency as to the bindings effects of their acts would
apply. 48 For such officers to be deemed fully clothed by the
corporation to exercise a power of the Board, the latter must
specially authorize them to do so. That Del Rosario did not have the
authority to accept ABS-CBN's counter-offer was best evidenced by
his submission of the draft contract to VIVA's Board of Directors for
the latter's approval. In any event, there was between Del Rosario
and Lopez III no meeting of minds. The following findings of the trial
court are instructive:
A number of considerations militate against ABS-CBN's claim that a
contract was perfected at that lunch meeting on April 02, 1992 at
the Tamarind Grill.
FIRST, Mr. Lopez claimed that what was agreed upon at the
Tamarind Grill referred to the price and the number of films, which
he wrote on a napkin. However, Exhibit "C" contains numerous
provisions which, were not discussed at the Tamarind Grill, if Lopez
testimony was to be believed nor could they have been physically
written on a napkin. There was even doubt as to whether it was a
paper napkin or a cloth napkin. In short what were written in Exhibit
"C'' were not discussed, and therefore could not have been agreed
upon, by the parties. How then could this court compel the parties
to sign Exhibit "C" when the provisions thereof were not previously
agreed upon?
SECOND, Mr. Lopez claimed that what was agreed upon as the
subject matter of the contract was 14 films. The complaint in fact
prays for delivery of 14 films. But Exhibit "C" mentions 53 films as its
subject matter. Which is which If Exhibits "C" reflected the true
intent of the parties, then ABS-CBN's claim for 14 films in its
complaint is false or if what it alleged in the complaint is true, then
Exhibit "C" did not reflect what was agreed upon by the parties. This
underscores the fact that there was no meeting of the minds as to
the subject matter of the contracts, so as to preclude perfection
thereof. For settled is the rule that there can be no contract where
there is no object which is its subject matter (Art. 1318, NCC).
THIRD, Mr. Lopez [sic] answer to question 29 of his affidavit
testimony (Exh. "D") states:
We were able to reach an agreement. VIVA gave us the exclusive
license to show these fourteen (14) films, and we agreed to pay Viva
the amount of P16,050,000.00 as well as grant Viva commercial slots
worth P19,950,000.00. We had already earmarked this P16,
050,000.00.
which gives a total consideration of P36 million (P19,950,000.00 plus
P16,050,000.00. equals P36,000,000.00).
On cross-examination Mr. Lopez testified:
Q. What was written in this napkin?
A. The total price, the breakdown the known Viva movies, the 7
blockbuster movies and the other 7 Viva movies because the price
was broken down accordingly. The none [sic] Viva and the seven
other Viva movies and the sharing between the cash portion and the
concerned spot portion in the total amount of P35 million pesos.
Now, which is which? P36 million or P35 million? This weakens ABS-
CBN's claim.
FOURTH. Mrs. Concio, testifying for ABS-CBN stated that she
transmitted Exhibit "C" to Mr. Del Rosario with a handwritten note,
describing said Exhibit "C" as a "draft." (Exh. "5" - Viva; tsn pp. 23-24
June 08, 1992). The said draft has a well defined meaning.
Since Exhibit "C" is only a draft, or a tentative, provisional or
preparatory writing prepared for discussion, the terms and
conditions thereof could not have been previously agreed upon by
ABS-CBN and Viva Exhibit "C'' could not therefore legally bind Viva,
not having agreed thereto. In fact, Ms. Concio admitted that the
terms and conditions embodied in Exhibit "C" were prepared by
ABS-CBN's lawyers and there was no discussion on said terms and
conditions. . . .
As the parties had not yet discussed the proposed terms and
conditions in Exhibit "C," and there was no evidence whatsoever
that Viva agreed to the terms and conditions thereof, said document
cannot be a binding contract. The fact that Viva refused to sign
Exhibit "C" reveals only two [sic] well that it did not agree on its
terms and conditions, and this court has no authority to compel Viva
to agree thereto.
FIFTH. Mr. Lopez understand [sic] that what he and Mr. Del Rosario
agreed upon at the Tamarind Grill was only provisional, in the sense
that it was subject to approval by the Board of Directors of Viva. He
testified:
Q. Now, Mr. Witness, and after that Tamarind meeting ... the second
meeting wherein you claimed that you have the meeting of the
minds between you and Mr. Vic del Rosario, what happened?
A. Vic Del Rosario was supposed to call us up and tell us specifically
the result of the discussion with the Board of Directors.
Q. And you are referring to the so-called agreement which you
wrote in [sic] a piece of paper?
A. Yes, sir.
Q. So, he was going to forward that to the board of Directors for
approval?
A. Yes, sir. (Tsn, pp. 42-43, June 8, 1992)
Q. Did Mr. Del Rosario tell you that he will submit it to his Board for
approval?
A. Yes, sir. (Tsn, p. 69, June 8, 1992).
The above testimony of Mr. Lopez shows beyond doubt that he
knew Mr. Del Rosario had no authority to bind Viva to a contract
with ABS-CBN until and unless its Board of Directors approved it. The
complaint, in fact, alleges that Mr. Del Rosario "is the Executive
Producer of defendant Viva" which "is a corporation." (par. 2,
complaint). As a mere agent of Viva, Del Rosario could not bind Viva
unless what he did is ratified by its Board of Directors. (Vicente
vs. Geraldez, 52 SCRA 210; Arnold vs. Willets and Paterson, 44 Phil.
634). As a mere agent, recognized as such by plaintiff, Del Rosario
could not be held liable jointly and severally with Viva and his
inclusion as party defendant has no legal basis. (Salonga vs. Warner
Barner [sic] , COLTA , 88 Phil. 125; Salmon vs. Tan, 36 Phil. 556).
The testimony of Mr. Lopez and the allegations in the complaint are
clear admissions that what was supposed to have been agreed upon
at the Tamarind Grill between Mr. Lopez and Del Rosario was not a
binding agreement. It is as it should be because corporate power to
enter into a contract is lodged in the Board of Directors. (Sec. 23,
Corporation Code). Without such board approval by the Viva board,
whatever agreement Lopez and Del Rosario arrived at could not
ripen into a valid contract binding upon Viva (Yao Ka Sin Trading
vs. Court of Appeals, 209 SCRA 763). The evidence adduced shows
that the Board of Directors of Viva rejected Exhibit "C" and insisted
that the film package for 140 films be maintained (Exh. "7-1" - Viva
). 49
The contention that ABS-CBN had yet to fully exercise its right of
first refusal over twenty-four films under the 1990 Film Exhibition
Agreement and that the meeting between Lopez and Del Rosario
was a continuation of said previous contract is untenable. As
observed by the trial court, ABS-CBN right of first refusal had already
been exercised when Ms. Concio wrote to VIVA ticking off ten films,
Thus:
[T]he subsequent negotiation with ABS-CBN two (2) months after
this letter was sent, was for an entirely different package. Ms.
Concio herself admitted on cross-examination to having used or
exercised the right of first refusal. She stated that the list was not
acceptable and was indeed not accepted by ABS-CBN, (TSN, June 8,
1992, pp. 8-10). Even Mr. Lopez himself admitted that the right of
the first refusal may have been already exercised by Ms. Concio (as
she had). (TSN, June 8, 1992, pp. 71-75). Del Rosario himself knew
and understand [sic] that ABS-CBN has lost its rights of the first
refusal when his list of 36 titles were rejected (Tsn, June 9, 1992, pp.
10-11) 50
IIHowever, we find for ABS-CBN on the issue of damages. We shall
first take up actual damages. Chapter 2, Title XVIII, Book IV of the
Civil Code is the specific law on actual or compensatory damages.
Except as provided by law or by stipulation, one is entitled to
compensation for actual damages only for such pecuniary loss
suffered by him as he has duly proved. 51 The indemnification shall
comprehend not only the value of the loss suffered, but also that of
the profits that the obligee failed to obtain. 52 In contracts and quasi-
contracts the damages which may be awarded are dependent on
whether the obligor acted with good faith or otherwise, It case of
good faith, the damages recoverable are those which are the natural
and probable consequences of the breach of the obligation and
which the parties have foreseen or could have reasonably foreseen
at the time of the constitution of the obligation. If the obligor acted
with fraud, bad faith, malice, or wanton attitude, he shall be
responsible for all damages which may be reasonably attributed to
the non-performance of the obligation. 53 In crimes and quasi-
delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission
complained of, whether or not such damages has been foreseen or
could have reasonably been foreseen by the defendant. 54
Actual damages may likewise be recovered for loss or impairment of
earning capacity in cases of temporary or permanent personal
injury, or for injury to the plaintiff's business standing or commercial
credit. 55
The claim of RBS for actual damages did not arise from contract,
quasi-contract, delict, or quasi-delict. It arose from the fact of filing
of the complaint despite ABS-CBN's alleged knowledge of lack of
cause of action. Thus paragraph 12 of RBS's Answer with
Counterclaim and Cross-claim under the heading COUNTERCLAIM
specifically alleges:
12. ABS-CBN filed the complaint knowing fully well that it has no
cause of action RBS. As a result thereof, RBS suffered actual
damages in the amount of P6,621,195.32. 56
Needless to state the award of actual damages cannot be
comprehended under the above law on actual damages. RBS could
only probably take refuge under Articles 19, 20, and 21 of the Civil
Code, which read as follows:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for tile same.
Art. 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
It may further be observed that in cases where a writ of preliminary
injunction is issued, the damages which the defendant may suffer by
reason of the writ are recoverable from the injunctive bond. 57 In
this case, ABS-CBN had not yet filed the required bond; as a matter
of fact, it asked for reduction of the bond and even went to the
Court of Appeals to challenge the order on the matter, Clearly then,
it was not necessary for RBS to file a counterbond. Hence, ABS-CBN
cannot be held responsible for the premium RBS paid for the
counterbond.
Neither could ABS-CBN be liable for the print advertisements for
"Maging Sino Ka Man" for lack of sufficient legal basis. The RTC
issued a temporary restraining order and later, a writ of preliminary
injunction on the basis of its determination that there existed
sufficient ground for the issuance thereof. Notably, the RTC did not
dissolve the injunction on the ground of lack of legal and factual
basis, but because of the plea of RBS that it be allowed to put up a
counterbond.
As regards attorney's fees, the law is clear that in the absence of
stipulation, attorney's fees may be recovered as actual or
compensatory damages under any of the circumstances provided for
in Article 2208 of the Civil Code. 58
The general rule is that attorney's fees cannot be recovered as part
of damages because of the policy that no premium should be placed
on the right to litigate. 59 They are not to be awarded every time a
party wins a suit. The power of the court to award attorney's fees
under Article 2208 demands factual, legal, and equitable
justification. 60 Even when claimant is compelled to litigate with third
persons or to incur expenses to protect his rights, still attorney's
fees may not be awarded where no sufficient showing of bad faith
could be reflected in a party's persistence in a case other than
erroneous conviction of the righteousness of his cause. 61
As to moral damages the law is Section 1, Chapter 3, Title XVIII, Book
IV of the Civil Code. Article 2217 thereof defines what are included
in moral damages, while Article 2219 enumerates the cases where
they may be recovered, Article 2220 provides that moral damages
may be recovered in breaches of contract where the defendant
acted fraudulently or in bad faith. RBS's claim for moral damages
could possibly fall only under item (10) of Article 2219, thereof
which reads:
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34, and 35.
Moral damages are in the category of an award designed to
compensate the claimant for actual injury suffered. and not to
impose a penalty on the wrongdoer. 62 The award is not meant to
enrich the complainant at the expense of the defendant, but to
enable the injured party to obtain means, diversion, or amusements
that will serve to obviate then moral suffering he has undergone. It
is aimed at the restoration, within the limits of the possible, of the
spiritual status quo ante, and should be proportionate to the
suffering inflicted. 63 Trial courts must then guard against the award
of exorbitant damages; they should exercise balanced restrained
and measured objectivity to avoid suspicion that it was due to
passion, prejudice, or corruption on the part of the trial court. 64
The award of moral damages cannot be granted in favor of a
corporation because, being an artificial person and having existence
only in legal contemplation, it has no feelings, no emotions, no
senses, It cannot, therefore, experience physical suffering and
mental anguish, which call be experienced only by one having a
nervous system. 65 The statement in People
v. Manero 66 and Mambulao Lumber Co. v. PNB 67 that a corporation
may recover moral damages if it "has a good reputation that is
debased, resulting in social humiliation" is an obiter dictum. On this
score alone the award for damages must be set aside, since RBS is a
corporation.
The basic law on exemplary damages is Section 5, Chapter 3, Title
XVIII, Book IV of the Civil Code. These are imposed by way of
example or correction for the public good, in addition to moral,
temperate, liquidated or compensatory damages. 68 They are
recoverable in criminal cases as part of the civil liability when the
crime was committed with one or more aggravating
circumstances; 69 in quasi-contracts, if the defendant acted with
gross negligence; 70 and in contracts and quasi-contracts, if the
defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner. 71
It may be reiterated that the claim of RBS against ABS-CBN is not
based on contract, quasi-contract, delict, or quasi-delict, Hence, the
claims for moral and exemplary damages can only be based on
Articles 19, 20, and 21 of the Civil Code.
The elements of abuse of right under Article 19 are the following: (1)
the existence of a legal right or duty, (2) which is exercised in bad
faith, and (3) for the sole intent of prejudicing or injuring another.
Article 20 speaks of the general sanction for all other provisions of
law which do not especially provide for their own sanction; while
Article 21 deals with acts contra bonus mores, and has the following
elements; (1) there is an act which is legal, (2) but which is contrary
to morals, good custom, public order, or public policy, and (3) and it
is done with intent to injure. 72
Verily then, malice or bad faith is at the core of Articles 19, 20, and
21. Malice or bad faith implies a conscious and intentional design to
do a wrongful act for a dishonest purpose or moral obliquity. 73 Such
must be substantiated by evidence. 74
There is no adequate proof that ABS-CBN was inspired by malice or
bad faith. It was honestly convinced of the merits of its cause after it
had undergone serious negotiations culminating in its formal
submission of a draft contract. Settled is the rule that the adverse
result of an action does not per se make the action wrongful and
subject the actor to damages, for the law could not have meant to
impose a penalty on the right to litigate. If damages result from a
person's exercise of a right, it is damnum absque injuria. 75
WHEREFORE, the instant petition is GRANTED. The challenged
decision of the Court of Appeals in CA-G.R. CV No, 44125 is hereby
REVERSED except as to unappealed award of attorney's fees in favor
of VIVA Productions, Inc.1âwphi1.nêt
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-9356 February 18, 1915
C. S. GILCHRIST, plaintiff-appellee,
vs.
E. A. CUDDY, ET AL., defendants.
JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.
C. Lozano for appellants.
Bruce, Lawrence, Ross and Block for appellee.
TRENT, J.:
An appeal by the defendants, Jose Fernandez Espejo and Mariano
Zaldarriaga, from a judgment of the Court of First Instance of Iloilo,
dismissing their cross-complaint upon the merits for damages
against the plaintiff for the alleged wrongful issuance of a
mandatory and a preliminary injunction.
Upon the application of the appellee an ex parte mandatory
injunction was issued on the 22d of May, 1913, directing the
defendant, E. A. Cuddy, to send to the appellee a certain
cinematograph film called "Zigomar" in compliance with an alleged
contract which had been entered into between these two parties,
and at the time an ex parte preliminary injunction was issued
restraining the appellants from receiving and exhibiting in their
theater the Zigomar until further orders of the court. On the 26th of
that month the appellants appeared and moved the court to
dissolve the preliminary injunction. When the case was called for
trial on August 6, the appellee moved for the dismissal of the
complaint "for the reason that there is no further necessity for the
maintenance of the injunction." The motion was granted without
objection as to Cuddy and denied as to the appellants in order to
give them an opportunity to prove that the injunction were
wrongfully issued and the amount of damages suffered by reason
thereof.
The pertinent part of the trial court's findings of fact in this case is as
follows:
It appears in this case that Cuddy was the owner of the film Zigomar
and that on the 24th of April he rented it to C. S. Gilchrist for a week
for P125, and it was to be delivered on the 26th of May, the week
beginning that day. A few days prior to this Cuddy sent the money
back to Gilchrist, which he had forwarded to him in Manila, saying
that he had made other arrangements with his film. The other
arrangements was the rental to these defendants Espejo and his
partner for P350 for the week and the injunction was asked by
Gilchrist against these parties from showing it for the week
beginning the 26th of May.
It appears from the testimony in this case, conclusively, that Cuddy
willfully violated his contract, he being the owner of the picture,
with Gilchrist because the defendants had offered him more for the
same period. Mr. Espejo at the trial on the permanent injunction on
the 26th of May admitted that he knew that Cuddy was the owner
of the film. He was trying to get it through his agents Pathe Brothers
in Manila. He is the agent of the same concern in Iloilo. There is in
evidence in this case on the trial today as well as on the 26th of May,
letters showing that the Pathe Brothers in Manila advised this man
on two different occasions not to contend for this film Zigomar
because the rental price was prohibitive and assured him also that
he could not get the film for about six weeks. The last of these letters
was written on the 26th of April, which showed conclusively that he
knew they had to get this film from Cuddy and from this letter that
the agent in Manila could not get it, but he made Cuddy an offer
himself and Cuddy accepted it because he was paying about three
times as much as he had contracted with Gilchrist for. Therefore, in
the opinion of this court, the defendants failed signally to show the
injunction against the defendant was wrongfully procured.
The appellants duly excepted to the order of the court denying their
motion for new trial on the ground that the evidence was
insufficient to justify the decision rendered. There is lacking from the
record before us the deposition of the defendant Cuddy, which
apparently throws light upon a contract entered into between him
and the plaintiff Gilchrist. The contents of this deposition are
discussed at length in the brief of the appellants and an endeavor is
made to show that no such contract was entered into. The trial
court, which had this deposition before it, found that there was a
contract between Cuddy and Gilchrist. Not having the deposition in
question before us, it is impossible to say how strongly it militates
against this findings of fact. By a series of decisions we have
construed section 143 and 497 (2) of the Code of Civil Procedure to
require the production of all the evidence in this court. This is the
duty of the appellant and, upon his failure to perform it, we decline
to proceed with a review of the evidence. In such cases we rely
entirely upon the pleadings and the findings of fact of the trial court
and examine only such assigned errors as raise questions of law.
(Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324; Valle vs. Galera, 10 Phil.
Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith,
Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236;
Olsen & Co. vs. Matson, Lord & Belser Co., 19 Phil. Rep., 102;
Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil.
Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20
Phil. Rep., 134.) It is true that some of the more recent of these
cases make exceptions to the general rule. Thus, in Olsen &
Co. vs. Matson, Lord & Belser Co., (19 Phil. Rep., 102), that portion
of the evidence before us tended to show that grave injustice might
result from a strict reliance upon the findings of fact contained in
the judgment appealed from. We, therefore, gave the appellant an
opportunity to explain the omission. But we required that such
explanation must show a satisfactory reason for the omission, and
that the missing portion of the evidence must be submitted within
sixty days or cause shown for failing to do so. The other cases
making exceptions to the rule are based upon peculiar
circumstances which will seldom arise in practice and need not here
be set forth, for the reason that they are wholly inapplicable to the
present case. The appellants would be entitled to indulgence only
under the doctrine of the Olsen case. But from that portion of the
record before us, we are not inclined to believe that the missing
deposition would be sufficient to justify us in reversing the findings
of fact of the trial court that the contract in question had been
made. There is in the record not only the positive and detailed
testimony of Gilchrist to this effect, but there is also a letter of
apology from Cuddy to Gilchrist in which the former enters into a
lengthy explanation of his reasons for leasing the film to another
party. The latter could only have been called forth by a broken
contract with Gilchrist to lease the film to him. We, therefore, fail to
find any reason for overlooking the omission of the defendants to
bring up the missing portion of the evidence and, adhering to the
general rule above referred to, proceed to examine the questions of
law raised by the appellants.
From the above-quoted findings of fact it is clear that Cuddy, a
resident of Manila, was the owner of the "Zigomar;" that Gilchrist
was the owner of a cinematograph theater in Iloilo; that in
accordance with the terms of the contract entered into between
Cuddy and Gilchrist the former leased to the latter the "Zigomar" for
exhibition in his (Gilchrist's) theater for the week beginning May 26,
1913; and that Cuddy willfully violate his contract in order that he
might accept the appellant's offer of P350 for the film for the same
period. Did the appellants know that they were inducing Cuddy to
violate his contract with a third party when they induced him to
accept the P350? Espejo admitted that he knew that Cuddy was the
owner of the film. He received a letter from his agents in Manila
dated April 26, assuring him that he could not get the film for about
six weeks. The arrangement between Cuddy and the appellants for
the exhibition of the film by the latter on the 26th of May were
perfected after April 26, so that the six weeks would include and
extend beyond May 26. The appellants must necessarily have known
at the time they made their offer to Cuddy that the latter had
booked or contracted the film for six weeks from April 26. Therefore,
the inevitable conclusion is that the appellants knowingly induced
Cuddy to violate his contract with another person. But there is no
specific finding that the appellants knew the identity of the other
party. So we must assume that they did not know that Gilchrist was
the person who had contracted for the film.
The appellants take the position that if the preliminary injunction
had not been issued against them they could have exhibited the film
in their theater for a number of days beginning May 26, and could
have also subleased it to other theater owners in the nearby towns
and, by so doing, could have cleared, during the life of their contract
with Cuddy, the amount claimed as damages. Taking this view of the
case, it will be unnecessary for us to inquire whether the mandatory
injunction against Cuddy was properly issued or not. No question is
raised with reference to the issuance of that injunction.
The right on the part of Gilchrist to enter into a contract with Cuddy
for the lease of the film must be fully recognized and admitted by
all. That Cuddy was liable in an action for damages for the breach of
that contract, there can be no doubt. Were the appellants likewise
liable for interfering with the contract between Gilchrist and Cuddy,
they not knowing at the time the identity of one of the contracting
parties? The appellants claim that they had a right to do what they
did. The ground upon which the appellants base this contention is,
that there was no valid and binding contract between Cuddy and
Gilchrist and that, therefore, they had a right to compete with
Gilchrist for the lease of the film, the right to compete being a
justification for their acts. If there had been no contract between
Cuddy and Gilchrist this defense would be tenable, but the mere
right to compete could not justify the appellants in intentionally
inducing Cuddy to take away the appellee's contractual rights.
Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said:
"Everyone has a right to enjoy the fruits and advantages of his own
enterprise, industry, skill and credit. He has no right to be free from
malicious and wanton interference, disturbance or annoyance. If
disturbance or loss come as a result of competition, or the exercise
of like rights by others, it is damnum absque injuria, unless some
superior right by contract or otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K.
B., 88), Darling, J., said: "I think the plaintiff has a cause of action
against the defendants, unless the court is satisfied that, when they
interfered with the contractual rights of plaintiff, the defendants had
a sufficient justification for their interference; . . . for it is not a
justification that `they acted bona fide in the best interests of the
society of masons,' i. e., in their own interests. Nor is it enough that
`they were not actuated by improper motives.' I think their sufficient
justification for interference with plaintiff's right must be an equal or
superior right in themselves, and that no one can legally excuse
himself to a man, of whose contract he has procured the breach, on
the ground that he acted on a wrong understanding of his own
rights, or without malice, or bona fide, or in the best interests of
himself, or even that he acted as an altruist, seeking only good of
another and careless of his own advantage." (Quoted with approval
in Beekman vs. Marsters, 195 Mass., 205.)
It is said that the ground on which the liability of a third party for
interfering with a contract between others rests, is that the
interference was malicious. The contrary view, however, is taken by
the Supreme Court of the United States in the case of
Angle vs. Railway Co. (151 U. S., 1). The only motive for interference
by the third party in that case was the desire to make a profit to the
injury of one of the parties of the contract. There was no malice in
the case beyond the desire to make an unlawful gain to the
detriment of one of the contracting parties.
In the case at bar the only motive for the interference with the
Gilchrist — Cuddy contract on the part of the appellants was a desire
to make a profit by exhibiting the film in their theater. There was no
malice beyond this desire; but this fact does not relieve them of the
legal liability for interfering with that contract and causing its
breach. It is, therefore, clear, under the above authorities, that they
were liable to Gilchrist for the damages caused by their acts, unless
they are relieved from such liability by reason of the fact that they
did not know at the time the identity of the original lessee (Gilchrist)
of the film.
The liability of the appellants arises from unlawful acts and not from
contractual obligations, as they were under no such obligations to
induce Cuddy to violate his contract with Gilchrist. So that if the
action of Gilchrist had been one for damages, it would be governed
by chapter 2, title 16, book 4 of the Civil Code. Article 1902 of that
code provides that a person who, by act or omission, causes
damages to another when there is fault or negligence, shall be
obliged to repair the damage do done. There is nothing in this article
which requires as a condition precedent to the liability of a tort-
feasor that he must know the identity of a person to whom he
causes damages. In fact, the chapter wherein this article is found
clearly shows that no such knowledge is required in order that the
injured party may recover for the damage suffered.
But the fact that the appellants' interference with the Gilchrist
contract was actionable did not of itself entitle Gilchrist to sue out
an injunction against them. The allowance of this remedy must be
justified under section 164 of the Code of Civil Procedure, which
specifies the circumstance under which an injunction may issue.
Upon the general doctrine of injunction we said in Devesa vs. Arbes
(13 Phil. Rep., 273):
An injunction is a "special remedy" adopted in that code (Act No.
190) from American practice, and originally borrowed from English
legal procedure, which was there issued by the authority and under
the seal of a court of equity, and limited, as in order cases where
equitable relief is sought, to cases where there is no "plain,
adequate, and complete remedy at law," which "will not be granted
while the rights between the parties are undetermined, except in
extraordinary cases where material and irreparable injury will be
done," which cannot be compensated in damages, and where there
will be no adequate remedy, and which will not, as a rule, be
granted, to take property out of the possession of one party and put
it into that of another whose title has not been established by law.
We subsequently affirmed the doctrine of the Devesa case in
Palafox vs. Madamba (19 Phil., Rep., 444), and we take this occasion
of again affirming it, believing, as we do, that the indiscriminate use
of injunctions should be discouraged.
Does the fact that the appellants did not know at the time the
identity of the original lessee of the film militate against Gilchrist's
right to a preliminary injunction, although the appellant's incurred
civil liability for damages for such interference? In the examination
of the adjudicated cases, where in injunctions have been issued to
restrain wrongful interference with contracts by strangers to such
contracts, we have been unable to find any case where this precise
question was involved, as in all of those cases which we have
examined, the identity of both of the contracting parties was known
to the tort-feasors. We might say, however, that this fact does not
seem to have a controlling feature in those cases. There is nothing in
section 164 of the Code of Civil Procedure which indicates, even
remotely, that before an injunction may issue restraining the
wrongful interference with contrast by strangers, the strangers must
know the identity of both parties. It would seem that this is not
essential, as injunctions frequently issue against municipal
corporations, public service corporations, public officers, and others
to restrain the commission of acts which would tend to injuriously
affect the rights of person whose identity the respondents could not
possibly have known beforehand. This court has held that in a
proper case injunction will issue at the instance of a private citizen
to restrain ultra vires acts of public officials. (Severino vs. Governor-
General, 16 Phil. Rep., 366.) So we proceed to the determination of
the main question of whether or not the preliminary injunction
ought to have been issued in this case.
As a rule, injunctions are denied to those who have an adequate
remedy at law. Where the choice is between the ordinary and the
extraordinary processes of law, and the former are sufficient, the
rule will not permit the use of the latter. (In re Debs, 158 U. S., 564.)
If the injury is irreparable, the ordinary process is inadequate. In
Wahle vs. Reinbach (76 Ill., 322), the supreme court of Illinois
approved a definition of the term "irreparable injury" in the
following language: "By `irreparable injury' is not meant such injury
as is beyond the possibility of repair, or beyond possible
compensation in damages, nor necessarily great injury or great
damage, but that species of injury, whether great or small, that
ought not to be submitted to on the one hand or inflicted on the
other; and, because it is so large on the one hand, or so small on the
other, is of such constant and frequent recurrence that no fair or
reasonable redress can be had therefor in a court of law." (Quoted
with approval in Nashville R. R. Co. vs. McConnell, 82 Fed., 65.)
The case at bar is somewhat novel, as the only contract which was
broken was that between Cuddy and Gilchrist, and the profits of the
appellee depended upon the patronage of the public, for which it is
conceded the appellants were at liberty to complete by all fair does
not deter the application of remarked in the case of the "ticket
scalpers" (82 Fed., 65), the novelty of the facts does not deter the
application of equitable principles. This court takes judicial notice of
the general character of a cinematograph or motion-picture theater.
It is a quite modern form of the play house, wherein, by means of an
apparatus known as a cinematograph or cinematograph, a series of
views representing closely successive phases of a moving object, are
exhibited in rapid sequence, giving a picture which, owing to the
persistence of vision, appears to the observer to be in continuous
motion. (The Encyclopedia Britanica, vol. 6, p. 374.) The subjects
which have lent themselves to the art of the photographer in this
manner have increased enormously in recent years, as well as have
the places where such exhibition are given. The attendance, and,
consequently, the receipts, at one of these cinematograph or
motion-picture theaters depends in no small degree upon the
excellence of the photographs, and it is quite common for the
proprietor of the theater to secure an especially attractive exhibit as
his "feature film" and advertise it as such in order to attract the
public. This feature film is depended upon to secure a larger
attendance that if its place on the program were filled by other films
of mediocre quality. It is evident that the failure to exhibit the
feature film will reduce the receipts of the theater.
Hence, Gilchrist was facing the immediate prospect of diminished
profits by reason of the fact that the appellants had induced Cuddy
to rent to them the film Gilchrist had counted upon as his feature
film. It is quite apparent that to estimate with any decree of
accuracy the damages which Gilchrist would likely suffer from such
an event would be quite difficult if not impossible. If he allowed the
appellants to exhibit the film in Iloilo, it would be useless for him to
exhibit it again, as the desire of the public to witness the production
would have been already satisfied. In this extremity, the appellee
applied for and was granted, as we have indicated, a mandatory
injunction against Cuddy requiring him to deliver the Zigomar to
Gilchrist, and a preliminary injunction against the appellants
restraining them from exhibiting that film in their theater during the
weeks he (Gilchrist) had a right to exhibit it. These injunction saved
the plaintiff harmless from damages due to the unwarranted
interference of the defendants, as well as the difficult task which
would have been set for the court of estimating them in case the
appellants had been allowed to carry out their illegal plans. As to
whether or not the mandatory injunction should have been issued,
we are not, as we have said, called upon to determine. So far as the
preliminary injunction issued against the appellants is concerned,
which prohibited them from exhibiting the Zigomar during the week
which Gilchrist desired to exhibit it, we are of the opinion that the
circumstances justified the issuance of that injunction in the
discretion of the court.
We are not lacking in authority to support our conclusion that the
court was justified in issuing the preliminary injunction against the
appellants. Upon the precise question as to whether injunction will
issue to restrain wrongful interference with contracts by strangers to
such contracts, it may be said that courts in the United States have
usually granted such relief where the profits of the injured person
are derived from his contractual relations with a large and indefinite
number of individuals, thus reducing him to the necessity of proving
in an action against the tort-feasor that the latter was responsible in
each case for the broken contract, or else obliging him to institute
individual suits against each contracting party and so exposing him
to a multiplicity of suits. Sperry & Hutchinson Co. vs. Mechanics'
Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis
Weber & Co. (161 Fed., 219); Sperry & Hutchinson Co. vs. Pommer
(199 Fed., 309); were all cases wherein the respondents were
inducing retail merchants to break their contracts with the company
for the sale of the latters' trading stamps. Injunction issued in each
case restraining the respondents from interfering with such
contracts.
In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the
court, among other things, said: "One who wrongfully interferes in a
contract between others, and, for the purpose of gain to himself
induces one of the parties to break it, is liable to the party injured
thereby; and his continued interference may be ground for an
injunction where the injuries resulting will be irreparable."
In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it
appears that the respondents were interfering in a contract for
prison labor, and the result would be, if they were successful, the
shutting down of the petitioner's plant for an indefinite time. The
court held that although there was no contention that the
respondents were insolvent, the trial court did not abuse its
discretion in granting a preliminary injunction against the
respondents.
In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained
from the Jamestown Hotel Corporation, conducting a hotel within
the grounds of the Jamestown Exposition, a contract whereby he
was made their exclusive agent for the New England States to solicit
patronage for the hotel. The defendant induced the hotel
corporation to break their contract with the plaintiff in order to
allow him to act also as their agent in the New England States. The
court held that an action for damages would not have afforded the
plaintiff adequate relief, and that an injunction was proper
compelling the defendant to desist from further interference with
the plaintiff's exclusive contract with the hotel company.
In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water
Power Co. (171 Fed., 553), the court, while admitting that there are
some authorities to the contrary, held that the current authority in
the United States and England is that:
The violation of a legal right committed knowingly is a cause of
action, and that it is a violation of a legal right to interfere with
contractual relations recognized by law, if there be no sufficient
justification for the interference. (Quinn vs. Leatham, supra, 510;
Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L.
Ed., 55; Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840;
Rice vs. Manley, 66 N. Y., 82; 23 Am. Rep., 30; Bitterman vs. L. & N.
R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L. Ed., 171;
Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N.
S.] 201; 122 Am. St. Rep., 232; South Wales Miners'
Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905, p. 239.)
See also Nims on Unfair Business Competition, pp. 351- 371.
In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the
proper remedy to prevent a wrongful interference with contract by
strangers to such contracts where the legal remedy is insufficient
and the resulting injury is irreparable. And where there is a malicious
interference with lawful and valid contracts a permanent injunction
will ordinarily issue without proof of express malice. So, an
injunction may be issued where the complainant to break their
contracts with him by agreeing to indemnify who breaks his
contracts of employment may be adjoined from including other
employees to break their contracts and enter into new contracts
with a new employer of the servant who first broke his contract. But
the remedy by injunction cannot be used to restrain a legitimate
competition, though such competition would involve the violation of
a contract. Nor will equity ordinarily enjoin employees who have
quit the service of their employer from attempting by proper
argument to persuade others from taking their places so long as
they do not resort to force or intimidations on obstruct the public
thoroughfares."
Beekman vs. Marster, supra, is practically on all fours with the case
at bar in that there was only one contract in question and the profits
of the injured person depended upon the patronage of the public.
Hamby & Toomer vs. Georgia Iron & Coal Co., supra, is also similar to
the case at bar in that there was only one contract, the interference
of which was stopped by injunction.
For the foregoing reasons the judgment is affirmed, with costs,
against the appellants.
G.R. No. 120639 September 25, 1998
BPI EXPRESS CARD CORPORATION, petitioner,
vs.
COURT OF APPEALS and RICARDO J. MARASIGAN, respondents.
KAPUNAN, J.:
The question before this Court is whether private respondent can
recover moral damages arising from the cancellation of his credit
card by petitioner credit card corporation.
The facts of the case are as stated in the decision of the respondent
court, 1 to wit:
The case arose from the dishonor of the credit card of the plaintiff
Atty. Ricardo J. Marasigan by Café Adriatico, a business
establishment accredited with the defendant-appellate BPI Express
Card Corporation (BECC for brevity), on December 8, 1989 when the
plaintiff entertained some guests thereat.
The records of this case show that plaintiff, who is a lawyer by
profession, was a complimentary member of BECC from February
1988 to February 1989 and was issued Credit Card No. 100-012-5534
with a credit limit of P3,000.00 and with a monthly billing every 27th
of the month (Exh. N), subject to the terms and conditions stipulated
in the contract (Exh. 1-b). His membership was renewed for another
year or until February 1990 and the credit limit was increased to
P5,000.00 (Exh. A). The plaintiffs oftentimes exceeded his credit
limits (Exhs. I, I-1 to I-12) but this was never taken against him by the
defendant and even his mode of paying his monthly bills in check
was tolerated. Their contractual relations went on smoothly until his
statement of account for October 1989 amounting to P8,987.84 was
not paid in due time. The plaintiff admitted having inadvertently
failed to pay his account for the said month because he was in
Quezon province attending to some professional and personal
commitments. He was informed by his secretary that defendant was
demanding immediate payment of his outstanding account, was
requiring him to issue a check for P15,000.00 which would include
his future bills, and was threatening to suspend his credit card.
Plaintiff issued Far East Bank and Trust Co. Check No. 494675 in the
amount of P15,000.00, postdated December 15, 1989 which was
received on November 23, 1989 by Tess Lorenzo, an employee of
the defendant (Exhs. J and J-1), who in turn gave the said check to
Jeng Angeles, a co-employee who handles the account of the
plaintiff. The check remained in the custody of Jeng Angeles. Mr.
Roberto Maniquiz, head of the collection department of defendant
was formally informed of the postdated check about a week later.
On November 28, 2989, defendant served plaintiff a letter by
ordinary mail informing him of the temporary suspension of the
privileges of his credit card and the inclusion of his account number
in their Caution List. He was also told to refrain from further use of
his credit card to avoid any inconvenience/embarrassment and that
unless he settles his outstanding account with the defendant within
5 days from receipt of the letter, his membership will be
permanently cancelled (Exh. 3). There is no showing that the plaintiff
received this letter before December 8, 1989. Confidential that he
had settled his account with the issuance of the postdated check,
plaintiff invited some guests on December 8, 1989 and entertained
them at Café Adriatico. When he presented his credit card to Café
Adriatico for the bill amounting to P735.32, said card was
dishonored. One of his guests, Mary Ellen Ringler, paid the bill by
using her own credit card a Unibankard (Exhs. M, M-1 and M-2).
In a letter addressed to the defendant dated December 12, 1989,
plaintiff requested that he be sent the exact billing due him as of
December 15, 1989, to withhold the deposit of his postdated check
and that said check be returned to him because he had already
instructed his bank to stop the payment thereof as the defendant
violated their agreement that the plaintiff issue the check to the
defendant to cover his account amounting to only P8,987.84 on the
condition that the defendant will not suspend the effectivity of the
card (Exh. D). A letter dated December 16, 1989 was sent by the
plaintiff to the manager of FEBTC, Ramada Branch, Manila
requesting the bank to stop the payment of the check (Exhs. E, E-1).
No reply was received by plaintiff from the defendant to his letter
dated December 12, 1989. Plaintiff sent defendant another letter
dated March 12, 1990 reminding the latter that he had long
rescinded and cancelled whatever arrangement he entered into with
defendant and requesting for his correct billing, less the improper
charges and penalties, and for an explanation within five (5) days
from receipt thereof why his card was dishonored on December 8,
1989 despite assurance to the contrary by defendant's personnel-in-
charge, otherwise the necessary court action shall be filed to hold
defendant responsible for the humiliation and embarrassment
suffered by him (Exh. F). Plaintiff alleged further that after a few
days, a certain Atty. Albano, representing himself to be working with
the office of Atty. Lopez, called him inquiring as to how the matter
can be threshed out extrajudicially but the latter said that such is a
serious matter cannot be discussed over the phone. The defendant
served its final demand to the plaintiff dated March 21, 1990
requiring him to pay in full his overdue account, including stipulated
fees and charges, within 5 days from receipt thereof or face court
action and also to replace the postdated check with cash within the
same period or face criminal suit for violation of Bouncing Check Law
(Exh. G/Exh. 13). The plaintiff in a reply letter dated April 5, 1990
(Exh. H), demanded defendant's compliance with his request in his
first letter dated March 12, 1990 within three (3) days from receipt,
otherwise the plaintiff will file a case against them, . . . . 2
Thus, on May 7, 1990 private respondent filed a complaint for
damages against petitioner before the Regional Trial Court of
Makati, Branch 150, docketed as Civil Case No. 90-1174.
After trial the trial court ruled for private respondent, finding that
herein petitioner abused its right in contravention of Article 19 of
the Civil Code. 3 The dispositive portion of the decision reads:
Wherefore, judgment is hereby rendered ordering the defendant to
pay plaintiff the following:
1. P 100,000.00 as moral damages;
2. P 50,000.00 as exemplary damages; and
3. P 20,000.00 by way of attorney's fees.
On the other hand, plaintiff is ordered to pay defendant its
outstanding obligation in the amount of P14,439.41, amount due as
of December 15, 1989. 4
The trial court's ruling was based on its findings and conclusions, to
wit:
There is no question that plaintiff had been in default in the
payment of his billings for more than two months, prompting
defendant to call him and reminded him of his obligation. Unable to
personally talk with him, this Court is convinced that somehow one
or another employee of defendant called him up more that once.
However, while it is true that as indicated in the terms and
conditions of the application for BPI credit card upon failure of the
cardholder to pay his outstanding obligation for more that thirty (30)
days, the defendant can automatically suspend or cancel the credit
card, that reserved right should not have been abused as it was in
fact abused, in plaintiff's case. What is more peculiar here is that
there have been admitted communications between plaintiff and
defendant prior to the suspension or cancellation of plaintiff's credit
card and his inclusion in the cautions list. However, nowhere in any
of these communications was there ever a hint given to plaintiff that
his card had already been suspended or cancelled. In fact, the Court
observed that while defendant was trying its best to persuade
plaintiff to update its account and pay its obligation, it had already
taken steps to suspend/cancel plaintiff's card and include him in the
caution list. While the Court admires defendant's diplomacy in
dealing with its clients, it cannot help but frown upon the
backhanded way defendant deal with plaintiff's case. For despite
Tess Lorenzo's denial, there is reason to believe that plaintiff was
indeed assured by defendant of the continued honoring of his credit
card so long as he pays his obligation of P15,000.00. Worst, upon
receipt of the postdated check, defendant kept the same until a few
days before it became due and said check was presented to the
head of the collection department, Mr. Maniquiz, to take steps
thereon, resulting to the embarrassing situations plaintiff found
himself in on December 8, 1989. Moreover, Mr. Maniquiz himself
admitted that his request for plaintiff to replace the check with cash
was not because it was a postdated check but merely to tally the
payment with the account due.
Likewise, the Court is not persuaded by the sweeping denials made
by Tess Lorenzo and her claim that her only participation was to
receive the subject check. Her immediate superior, Mr. Maniquiz
testified that he had instructed Lorenzo to communicate with
plaintiff once or twice to request the latter to replace the
questioned check with cash, thus giving support to the testimony of
plaintiff's witness, Dolores Quizon, that it was one Tess Lorenzo
whom she had talked over the phone regarding plaintiff's account
and plaintiff's own statement that it was this woman who assured
him that his card has not yet been and will not be
cancelled/suspended if he would pay defendant the sum of
P15,000.00.
Now, on the issue of whether or not upon receipt of the subject
check defendant had agreed that the card shall remain effective the
Court takes note of the following:
1. An employee of defendant corporation unconditionally accepted
the subject check upon its delivery despite its being a postdated
one; and the amount did not tally with plaintiff's obligation;
2. Defendant did not deny nor controvert plaintiff's claim that all of
his payments were made in checks;
3. Defendant's main witness, Mr. Maniquiz, categorically stated that
the request for plaintiff to replace his postdated check with a cash
was merely for the purpose of tallying plaintiff's outstanding
obligation with his payment and not to question the postdated
check;
4. That the card was suspended almost a week after receipt of the
postdated check;
5. That despite the many instances that defendant could have
informed plaintiff over the phone of the cancellation or suspension
of his credit card, it did not do so, which could have prevented the
incident of December 8, 1989, the notice allegedly sent thru
ordinary mail is not only unreliable but takes a long time. Such
action as suspension of credit card must be immediately relayed to
the person affected so as to avoid embarrassing situations.
6. And that the postdated check was deposited on December 20,
1989.
In view of the foregoing observations, it is needless to say that there
was indeed an arrangement between plaintiff and the defendant, as
can be inferred from the acts of the defendant's employees, that the
subject credit card is still good and could still be used by the plaintiff
as it would be honored by the duly accredited establishment of
defendant.
Not satisfied with the Regional Trial Court's decision, petitioner
appealed to the Court of Appeals, which in a decision promulgated
on March 9, 1995 ruled in its dispositive portion.
WHEREFORE, premises considered the decision appealed from is
hereby AFFIRMED with the MODIFICATION that the defendant-
appellant shall pay the plaintiff-appellee the following: P50,000.00
as moral damages: P25,000.00 as exemplary damages; and
P10,000.00 by way of attorney's fees.
SO ORDERED. 6
Hence, the present petition on the following assignment of errors:
I
THE LOWER COURT ERRED IN DECLARING THAT THERE WAS INDEED
AN AGREEMENT OR ARRANGEMENT ENTERED INTO BETWEEN THE
PARTIES WHEREIN THE DEFENDANT REQUIRED THE PLAINTIFF TO
ISSUE A POSTDATED CHECK IN ITS FAVOR IN THE AMOUNT OF
P15,000.00 AS PAYMENT FOR HIS OVERDUE ACCOUNTS, WITH THE
CONDITION THAT THE PLAINTIFF'S CREDIT CARD WILL NOT BE
SUSPENDED OR CANCELLED.
II
THE LOWER COURT ERRED IN HOLDING DEFENDANT LIABLE FOR
DAMAGES AND ATTORNEY'S FEES ARISING OUT FROM THE
DISHONOR OF THE PLAINTIFF'S CREDIT CARD. 7
We find the petition meritorious.
The first issue to be resolved is whether petitioner had the right to
suspend the credit card of the private respondent.
Under the terms and conditions of the credit card, signed by the
private respondent, any card with outstanding balances after thirty
(30) days from original billing/statement shall automatically be
suspended, thus:
PAYMENT OF CHARGES — BECC shall furnish the Cardholder a
monthly statement of account made through the use of the CARD
and the Cardholder agrees that all charges made through the use of
the CARD shall be paid by the Cardholder on or before the last day
for payment, which is twenty (20) days from the date of the said
statement of account; and such payment due date may be changed
to an earlier date if the Cardholder's account is considered overdue
and/or with balances in excess of the approved credit limit; or to
such other date as may be deemed proper by the CARD issuer with
notice to the Cardholder on the same monthly statement of
account. If the last day for payment falls on a Saturday, Sunday or
Holiday, the last day for payment automatically becomes the last
working day prior to the said payment date. However,
notwithstanding the absence or lack of proof of service of the
statement of charges to the Cardholder, the latter shall pay any or
all charges made through the use of the CARD within thirty (30) days
from the date or dates thereof. Failure of Cardholder to pay any and
all charges made through the CARD within the payment period as
stated in the statement of charges or with in thirty (30) days from
actual date or dates whichever occur earlier, shall render him in
default without the necessity of demand from BECC, which the
Cardholder expressly waives. These charges or balance thereof
remaining unpaid after the payment due date indicated on the
monthly statement of account shall bear interest of 3% per month
and an additional penalty fee equivalent to another 3% of the
amount due for every month or a fraction of a month's
delay. PROVIDED, that if there occurs any changes on the prevailing
market rates BECC shall have the option to adjust the rate of interest
and/or penalty fee due on the outstanding obligation with prior
notice to the Cardholder.
xxx xxx xxx
Any CARD with outstanding balances unpaid after thirty (30) days
from original billing/statement date shall automatically be
suspended and those with accounts unpaid after sixty (60) days from
said original billing/statement date shall automatically be cancelled
without prejudice to BECC's right to suspend or cancel any CARD any
time and for whatever reason. In case of default in his obligation as
provided for in the preceding paragraph, Cardholder shall surrender
his CARD to BECC and shall in addition to the interest and penalty
charges aforementioned, pay the following liquidated damages
and/or fees (a) a collection fee of 25% of the amount due if the
account is referred to a collection agency or attorney; (b) a service
fee of P100 for every dishonored check issued by the Cardholder's in
payment of his account, without prejudice; however to BECC's right
of considering Cardholder's obligation unpaid; cable cost for
demanding payment or advising cancellation of membership shall
also be for Cardholder's account; and (c) a final fee equivalent to
25% of the unpaid balance, exclusive of litigation expenses and
judicial costs, if the payment of the account is enforced through
court action. 8
The aforequoted provision of the card cannot be any clearer. By his
own admission private respondent no payment within thirty days for
his billing/statement dated 27 September 1989. Neither did he make
payment for his original billing/statement dated 27 October 1989.
Consequently as early as 28 October 1989 thirty days from the non-
payment of his billing dated 27 September 1989, petitioner
corporation could automatically suspend his credit card.
The next issue is whether prior to the suspension of private
respondent's credit card on 28 November 1989 the parties entered
into an agreement whereby the card could still be used and would
be duly honored by duly accredited establishments.
We agree with the findings of the respondent court, that there was
an arrangement between the parties, wherein the petitioner
required the private respondent to issue a check worth P15,000.00
as payment for the latter's billings. However we find that the private
respondent was not able to comply with this obligation.
As the testimony of private respondent himself bears out, the
agreement was for the immediate payment of the outstanding
account:
Q In said statement of account that you are supposed to pay the
P8,974.84 the charge of interest and penalties, did you note that?
A Yes, sir I noted the date.
Q When?
A When I returned from the Quezon province, sir
Q When?
A I think November 22, sir.
Q So that before you used again the credit card you were not able to
pay immediately this P8,987.84 in cash?
A I paid P15,000.00, sir.
Q My question Mr. witness is, did you pay this P8,987.84 in charge
of interest and penalties immediately in cash?
A In cash no, but in check, sir.
Q You said that you noted the word "immediately" in bold letters in
your statement of accounts, why did not pay immediately?
A Because I received that late, sir.
Q Yes, on November 22 when you received from the secretary of the
defendant telling you to pay the principal amount of P8,987.84, why
did you not pay?
A There was a communication between me and the defendant, I was
required to pay P8,000.00 but I paid in check for P15,000.00, sir.
Q Do you have any evidence to show that the defendant required
you to pay in check for P15,000.00?
A Yes, sir.
Q Where is it?
A It was telecommunication, sir.
Q So there is no written communication between you and the
defendant?
A There was none, sir.
Q There is no written agreement which says that P8,987.84 should
be paid for P15,000.00 in check, there is none?
A Yes, no written agreement, sir.
Q And you as a lawyer you know that a check is not considered as
cash specially when it is postdated sent to the defendant?
A That is correct, sir.
Clearly the purpose of the arrangement between the parties on
November 22, 1989, was for the immediate payment of the private
respondent's outstanding account, in order that his credit card
would not be suspended.
As agreed upon by the parties, on the following day, private
respondent did issue a check for P15,000.00. However, the check
was postdated 15 December 1989. Settled is the doctrine that a
check is only a substitute for money and not money, the delivery of
such an instrument does not, by itself operate as payment. 9 This is
especially true in the case of a postdated check.
Thus, the issuance by the private respondent of the postdated check
was not effective payment. It did not comply with his obligation
under the arrangement with Miss Lorenzo. Petitioner corporation
was therefore justified in suspending his credit card.
Finally, we find no legal and factual basis for private respondent's
assertion that in canceling the credit card of the private respondent,
petitioner abused its right under the terms and conditions of the
contract.
To find the existence of an abuse of right Article 19 the following
elements must be present (1) There is a legal right or duty; (2) which
is exercised in bad faith; (3) for the sole intent of prejudicing or
injuring another. 10
Time and again this Court has held that good faith is presumed and
the burden of proving bad faith is on the party alleging it. 11 This
private respondent failed to do. In fact, the action of the petitioner
belies the existence of bad faith. As early as 28 October 1989,
petitioner could have suspended private respondent's card outright.
Instead, petitioner allowed private respondent to use his card for
several weeks. Petitioner had even notified private respondent of
the impending suspension of his credit card and made special
accommodations for him for setting his outstanding account. As
such, petitioner cannot be said to have capriciously and arbitrarily
canceled the private respondent's credit card.
We do not dispute the findings of the lower court that private
respondent suffered damages as a result of the cancellation of his
credit card. However, there is a material distinction between
damages and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt or harm which results from the injury; and
damages are the recompense or compensation awarded for the
damage suffered. Thus, there can be damage without injury in those
instances in which the loss or harm was not the results of a violation
of a legal duty. In such cases, the consequences must be borne by
the injured person alone, the law affords no remedy for damages
resulting from an act which does not amount to a legal injury or
wrong. These situations are often called damnum absque
injuria. 12
In other words, in order that the plaintiff may maintain an action for
the injuries of which he complaints, he must establish that such
injuries resulted from a breach of duty which the defendant owed to
the plaintiff a concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying basis for the
award of tort damages is the premise that an individual was injured
in contemplation of law. Thus, there must first be a breach of some
duty and the imposition of liability for that breach before damages
may be awarded; 13 and the breach of such duty should be the
proximate cause of the injury.
We therefore disagree with the ruling of the respondent court that
the dishonor of the credit card of the private respondent by Café
Adriatico is attributable to petitioner for its willful or gross neglect to
inform the private respondent of the suspension of his credit card,
the unfortunate consequence of which brought social humiliation
and embarrassment to the private respondent. 14
It was petitioner's failure to settle his obligation which caused the
suspension of his credit card and subsequent dishonor at Café
Adriatico. He can not now pass the blame to the petitioner for not
notifying him of the suspension of his card. As quoted earlier, the
application contained the stipulation that the petitioner could
automatically suspend a card whose billing has not been paid for
more than thirty days. Nowhere is it stated in the terms and
conditions of the application that there is a need of notice before
suspension may be affected as private respondent claims. 15
This notwithstanding on November 28, 1989, the day of the
suspension of private respondent's card, petitioner sent a letter by
ordinary mail notifying private respondent that his card had been
temporarily suspended. Under the Rules on Evidence, there is a
disputable presumption that letters duly directed and mailed were
received on the regular course of mail. 16 Aside from the private
respondent's bare denial he failed to present evidence to rebut the
presumption that he received said notice. In fact upon cross
examination private respondent admitted that he did receive the
letter notifying him of the cancellation:
Q Now you were saying that there was a first letter sent to you by
the defendant?
A Your letter, sir.
Q Was that the first letter that you received?
A Yes, sir.
Q It is that there was a communication first between you and the
defendant?
A There was none, sir. I received a cancellation notice but that was
after November 27. 17
As it was private respondent's own negligence which was the
proximate cause of his embarrassing and humiliating experience, we
find the award of damages by the respondent court clearly
unjustified. We take note of the fact that private respondent has not
yet paid his outstanding account with petitioner.
IN VIEW OF THE FOREGOING, the decision of the Court of Appeals
ordering petitioner to pay private respondent P100,000.00 as moral
damages P50,000.00 as exemplary damages and P20,000.00 as
attorney's fees, is SET ASIDE. Private respondent is DIRECTED to pay
his outstanding obligation with the petitioner in the amount of
P14,439.41.
SO ORDERED.
G.R. No. 160273 January 18, 2008
CEBU COUNTRY CLUB, INC., SABINO R. DAPAT, RUBEN D.
ALMENDRAS, JULIUS Z. NERI, DOUGLAS L. LUYM, CESAR T. LIBI,
RAMONTITO* E. GARCIA and JOSE B. SALA, petitioners,
vs.
RICARDO F. ELIZAGAQUE, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the Decision1 dated January 31, 2003 and
Resolution dated October 2, 2003 of the Court of Appeals in CA-G.R.
CV No. 71506.
The facts are:
Cebu Country Club, Inc. (CCCI), petitioner, is a domestic corporation
operating as a non-profit and non-stock private membership club,
having its principal place of business in Banilad, Cebu City.
Petitioners herein are members of its Board of Directors.
Sometime in 1987, San Miguel Corporation, a special company
proprietary member of CCCI, designated respondent Ricardo F.
Elizagaque, its Senior Vice President and Operations Manager for the
Visayas and Mindanao, as a special non-proprietary member. The
designation was thereafter approved by the CCCI’s Board of
Directors.
In 1996, respondent filed with CCCI an application for proprietary
membership. The application was indorsed by CCCI’s two (2)
proprietary members, namely: Edmundo T. Misa and Silvano Ludo.
As the price of a proprietary share was around the P5 million range,
Benito Unchuan, then president of CCCI, offered to sell respondent a
share for only P3.5 million. Respondent, however, purchased the
share of a certain Dr. Butalid for only P3 million. Consequently, on
September 6, 1996, CCCI issued Proprietary Ownership Certificate
No. 1446 to respondent.
During the meetings dated April 4, 1997 and May 30, 1997 of the
CCCI Board of Directors, action on respondent’s application for
proprietary membership was deferred. In another Board meeting
held on July 30, 1997, respondent’s application was voted upon.
Subsequently, or on August 1, 1997, respondent received a letter
from Julius Z. Neri, CCCI’s corporate secretary, informing him that
the Board disapproved his application for proprietary membership.
On August 6, 1997, Edmundo T. Misa, on behalf of respondent,
wrote CCCI a letter of reconsideration. As CCCI did not answer,
respondent, on October 7, 1997, wrote another letter of
reconsideration. Still, CCCI kept silent. On November 5, 1997,
respondent again sent CCCI a letter inquiring whether any member
of the Board objected to his application. Again, CCCI did not reply.
Consequently, on December 23, 1998, respondent filed with the
Regional Trial Court (RTC), Branch 71, Pasig City a complaint for
damages against petitioners, docketed as Civil Case No. 67190.
After trial, the RTC rendered its Decision dated February 14, 2001 in
favor of respondent, thus:
WHEREFORE, judgment is hereby rendered in favor of plaintiff:
1. Ordering defendants to pay, jointly and severally, plaintiff the
amount of P2,340,000.00 as actual or compensatory damages.
2. Ordering defendants to pay, jointly and severally, plaintiff the
amount of P5,000,000.00 as moral damages.
3. Ordering defendants to pay, jointly and severally, plaintiff the
amount of P1,000,000.00 as exemplary damages.
4. Ordering defendants to pay, jointly and severally, plaintiff the
amount of P1,000,000.00 as and by way of attorney’s fees
and P80,000.00 as litigation expenses.
5. Costs of suit.
Counterclaims are hereby DISMISSED for lack of merit.
SO ORDERED.2
On appeal by petitioners, the Court of Appeals, in its Decision dated
January 31, 2003, affirmed the trial court’s Decision with
modification, thus:
WHEREFORE, premises considered, the assailed Decision dated
February 14, 2001 of the Regional Trial Court, Branch 71, Pasig City
in Civil Case No. 67190 is hereby AFFIRMED with MODIFICATION as
follows:
1. Ordering defendants-appellants to pay, jointly and severally,
plaintiff-appellee the amount of P2,000,000.00 as moral damages;
2. Ordering defendants-appellants to pay, jointly and severally,
plaintiff-appellee the amount of P1,000,000.00 as exemplary
damages;
3. Ordering defendants-appellants to pay, jointly and severally,
plaintiff-appellee the mount of P500,000.00 as attorney’s fees
and P50,000.00 as litigation expenses; and
4. Costs of the suit.
The counterclaims are DISMISSED for lack of merit.
SO ORDERED.3
On March 3, 2003, petitioners filed a motion for reconsideration and
motion for leave to set the motion for oral arguments. In its
Resolution4 dated October 2, 2003, the appellate court denied the
motions for lack of merit.
Hence, the present petition.
The issue for our resolution is whether in disapproving respondent’s
application for proprietary membership with CCCI, petitioners are
liable to respondent for damages, and if so, whether their liability is
joint and several.
Petitioners contend, inter alia, that the Court of Appeals erred in
awarding exorbitant damages to respondent despite the lack of
evidence that they acted in bad faith in disapproving the latter’s
application; and in disregarding their defense of damnum absque
injuria.
For his part, respondent maintains that the petition lacks merit,
hence, should be denied.
CCCI’s Articles of Incorporation provide in part:
SEVENTH: That this is a non-stock corporation and membership
therein as well as the right of participation in its assets shall be
limited to qualified persons who are duly accredited owners of
Proprietary Ownership Certificates issued by the corporation in
accordance with its By-Laws.
Corollary, Section 3, Article 1 of CCCI’s Amended By-Laws provides:
SECTION 3. HOW MEMBERS ARE ELECTED – The procedure for the
admission of new members of the Club shall be as follows:
(a) Any proprietary member, seconded by another voting
proprietary member, shall submit to the Secretary a written
proposal for the admission of a candidate to the "Eligible-for-
Membership List";
(b) Such proposal shall be posted by the Secretary for a period of
thirty (30) days on the Club bulletin board during which time any
member may interpose objections to the admission of the applicant
by communicating the same to the Board of Directors;
(c) After the expiration of the aforesaid thirty (30) days, if no
objections have been filed or if there are, the Board considers the
objections unmeritorious, the candidate shall be qualified for
inclusion in the "Eligible-for-Membership List";
(d) Once included in the "Eligible-for-Membership List" and after the
candidate shall have acquired in his name a valid POC duly recorded
in the books of the corporation as his own, he shall become a
Proprietary Member, upon a non-refundable admission fee
of P1,000.00, provided that admission fees will only be collected
once from any person.
On March 1, 1978, Section 3(c) was amended to read as follows:
(c) After the expiration of the aforesaid thirty (30) days, the Board
may, by unanimous vote of all directors present at a regular or
special meeting, approve the inclusion of the candidate in the
"Eligible-for-Membership List".
As shown by the records, the Board adopted a secret balloting
known as the "black ball system" of voting wherein each member
will drop a ball in the ballot box. A white ball represents conformity
to the admission of an applicant, while a black ball means
disapproval. Pursuant to Section 3(c), as amended, cited above, a
unanimous vote of the directors is required. When respondent’s
application for proprietary membership was voted upon during the
Board meeting on July 30, 1997, the ballot box contained one (1)
black ball. Thus, for lack of unanimity, his application was
disapproved.
Obviously, the CCCI Board of Directors, under its Articles of
Incorporation, has the right to approve or disapprove an application
for proprietary membership. But such right should not be exercised
arbitrarily. Articles 19 and 21 of the Civil Code on the Chapter on
Human Relations provide restrictions, thus:
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
Article 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
In GF Equity, Inc. v. Valenzona,5 we expounded Article 19 and
correlated it with Article 21, thus:
This article, known to contain what is commonly referred to as the
principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights but also in the
performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty
and good faith. The law, therefore, recognizes a primordial
limitation on all rights; that in their exercise, the norms of human
conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is
exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be held
responsible. But while Article 19 lays down a rule of conduct for the
government of human relations and for the maintenance of social
order, it does not provide a remedy for its violation. Generally, an
action for damages under either Article 20 or Article 21 would be
proper. (Emphasis in the original)
In rejecting respondent’s application for proprietary membership,
we find that petitioners violated the rules governing human
relations, the basic principles to be observed for the rightful
relationship between human beings and for the stability of social
order. The trial court and the Court of Appeals aptly held that
petitioners committed fraud and evident bad faith in disapproving
respondent’s applications. This is contrary to morals, good custom
or public policy. Hence, petitioners are liable for damages pursuant
to Article 19 in relation to Article 21 of the same Code.
It bears stressing that the amendment to Section 3(c) of CCCI’s
Amended By-Laws requiring the unanimous vote of the directors
present at a special or regular meeting was not printed on the
application form respondent filled and submitted to CCCI. What was
printed thereon was the original provision of Section 3(c) which was
silent on the required number of votes needed for admission of an
applicant as a proprietary member.
Petitioners explained that the amendment was not printed on the
application form due to economic reasons. We find this excuse
flimsy and unconvincing. Such amendment, aside from being
extremely significant, was introduced way back in 1978 or almost
twenty (20) years before respondent filed his application. We cannot
fathom why such a prestigious and exclusive golf country club, like
the CCCI, whose members are all affluent, did not have enough
money to cause the printing of an updated application form.
It is thus clear that respondent was left groping in the dark
wondering why his application was disapproved. He was not even
informed that a unanimous vote of the Board members was
required. When he sent a letter for reconsideration and an inquiry
whether there was an objection to his application, petitioners
apparently ignored him. Certainly, respondent did not deserve this
kind of treatment. Having been designated by San Miguel
Corporation as a special non-proprietary member of CCCI, he should
have been treated by petitioners with courtesy and civility. At the
very least, they should have informed him why his application was
disapproved.
The exercise of a right, though legal by itself, must nonetheless be in
accordance with the proper norm. When the right is exercised
arbitrarily, unjustly or excessively and results in damage to another,
a legal wrong is committed for which the wrongdoer must be held
responsible.6 It bears reiterating that the trial court and the Court of
Appeals held that petitioners’ disapproval of respondent’s
application is characterized by bad faith.
As to petitioners’ reliance on the principle of damnum absque
injuria or damage without injury, suffice it to state that the same is
misplaced. In Amonoy v. Gutierrez,7 we held that this principle does
not apply when there is an abuse of a person’s right, as in this case.
As to the appellate court’s award to respondent of moral damages,
we find the same in order. Under Article 2219 of the New Civil Code,
moral damages may be recovered, among others, in acts and actions
referred to in Article 21. We believe respondent’s testimony that he
suffered mental anguish, social humiliation and wounded feelings as
a result of the arbitrary denial of his application. However, the
amount of P2,000,000.00 is excessive. While there is no hard-and-
fast rule in determining what would be a fair and reasonable amount
of moral damages, the same should not be palpably and
scandalously excessive. Moral damages are not intended to impose
a penalty to the wrongdoer, neither to enrich the claimant at the
expense of the defendant.8 Taking into consideration the attending
circumstances here, we hold that an award to respondent
of P50,000.00, instead of P2,000,000.00, as moral damages is
reasonable.
Anent the award of exemplary damages, Article 2229 allows it by
way of example or correction for the public good. Nonetheless, since
exemplary damages are imposed not to enrich one party or
impoverish another but to serve as a deterrent against or as a
negative incentive to curb socially deleterious actions,9 we reduce
the amount from P1,000,000.00 to P25,000.00 only.
On the matter of attorney’s fees and litigation expenses, Article
2208 of the same Code provides, among others, that attorney’s fees
and expenses of litigation may be recovered in cases when
exemplary damages are awarded and where the court deems it just
and equitable that attorney’s fees and expenses of litigation should
be recovered, as in this case. In any event, however, such award
must be reasonable, just and equitable. Thus, we reduce the amount
of attorney’s fees (P500,000.00) and litigation expenses (P50,000.00)
to P50,000.00 and P25,000.00, respectively.
Lastly, petitioners’ argument that they could not be held jointly and
severally liable for damages because only one (1) voted for the
disapproval of respondent’s application lacks merit.
Section 31 of the Corporation Code provides:
SEC. 31. Liability of directors, trustees or officers. — Directors or
trustees who willfully and knowingly vote for or assent to patently
unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict with their duty
as such directors, or trustees shall be liable jointly and severally for
all damages resulting therefrom suffered by the corporation, its
stockholders or members and other persons. (Emphasis ours)
WHEREFORE, we DENY the petition. The challenged Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 71506
are AFFIRMED with modification in the sense that (a) the award of
moral damages is reduced from P2,000,000.00 to P50,000.00; (b)
the award of exemplary damages is reduced from P1,000,000.00
to P25,000.00; and (c) the award of attorney’s fees and litigation
expenses is reduced from P500,000.00 and P50,000.00
to P50,000.00 and P25,000.00, respectively.
Costs against petitioners.
SO ORDERED.
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN,
represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the
Medina Transportation, operated by its owner defendant Mariano
Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular
chauffeur, Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe
Lara, sated to the right of Bataclan, another passenger apparently
from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated in the left side of the
driver, and a woman named Natalia Villanueva, seated just behind
the four last mentioned. At about 2:00 o'clock that same morning,
while the bus was running within the jurisdiction of Imus, Cavite,
one of the front tires burst and the vehicle began to zig-zag until it
fell into a canal or ditch on the right side of the road and turned
turtle. Some of the passengers managed to leave the bus the best
way they could, others had to be helped or pulled out, while the
three passengers seated beside the driver, named Bataclan, Lara and
the Visayan and the woman behind them named Natalia Villanueva,
could not get out of the overturned bus. Some of the passengers,
after they had clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from Bataclan and
Lara, who said they could not get out of the bus. There is nothing in
the evidence to show whether or not the passengers already free
from the wreck, including the driver and the conductor, made any
attempt to pull out or extricate and rescue the four passengers
trapped inside the vehicle, but calls or shouts for help were made to
the houses in the neighborhood. After half an hour, came about ten
men, one of them carrying a lighted torch made of bamboo with a
wick on one end, evidently fueled with petroleum. These men
presumably approach the overturned bus, and almost immediately,
a fierce fire started, burning and all but consuming the bus, including
the four passengers trapped inside it. It would appear that as the
bus overturned, gasoline began to leak and escape from the gasoline
tank on the side of the chassis, spreading over and permeating the
body of the bus and the ground under and around it, and that the
lighted torch brought by one of the men who answered the call for
help set it on fire.
That same day, the charred bodies of the four deemed passengers
inside the bus were removed and duly identified that of Juan
Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present
suit to recover from Mariano Medina compensatory, moral, and
exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the
value of the merchandise being carried by Bataclan to Pasay City for
sale and which was lost in the fire. The plaintiffs and the defendants
appealed the decision to the Court of Appeals, but the latter
endorsed the appeal to us because of the value involved in the claim
in the complaint.
Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference,
we are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7,
while the extra ordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease upon proof that
they exercised all the diligence of a good father of a family in the
selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family
could have prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of
contract of transportation for hire, the Medina Transportation
having undertaken to carry Bataclan safely to his destination, Pasay
City. We also agree with the trial court that there was negligence on
the part of the defendant, through his agent, the driver Saylon.
There is evidence to show that at the time of the blow out, the bus
was speeding, as testified to by one of the passengers, and as shown
by the fact that according to the testimony of the witnesses,
including that of the defense, from the point where one of the front
tires burst up to the canal where the bus overturned after zig-zaging,
there was a distance of about 150 meters. The chauffeur, after the
blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it fell
into the canal and turned turtle.
There is no question that under the circumstances, the defendant
carrier is liable. The only question is to what degree. The trial court
was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather, the fire that burned
the bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though he must
have suffered physical injuries, perhaps serious, was still alive, and
so damages were awarded, not for his death, but for the physical
injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American
jurisprudence, cited by plaintiffs-appellants in their brief. It is as
follows:
. . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through
some event, unexpected and extraordinary, the overturned bus is
set on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one
might still contend that the proximate cause of his death was the
fire and not the overturning of the vehicle. But in the present case
under the circumstances obtaining in the same, we do not hesitate
to hold that the proximate cause was the overturning of the bus, this
for the reason that when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was
not unnatural or unexpected; that the coming of the men with a
lighted torch was in response to the call for help, made not only by
the passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as
they did from a rural area where lanterns and flashlights were not
available; and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men
with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and
the call for outside help. What is more, the burning of the bus can
also in part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and
the conductor were on the road walking back and forth. They, or at
least, the driver should and must have known that in the position in
which the overturned bus was, gasoline could and must have leaked
from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially over a
large area, can be smelt and directed even from a distance, and yet
neither the driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers not to bring the
lighted torch too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering
the earning capacity of the deceased, as well as the other elements
entering into a damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other
damages. We also believe that plaintiffs are entitled to attorney's
fees, and assessing the legal services rendered by plaintiffs'
attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS
for the loss of merchandise carried by the deceased in the bus, is
adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of
the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in
the course of his visit, she overheard him speaking to one of his bus
inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of
fact, he had been telling the driver to change the said tires, but that
the driver did not follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and had not taken the
necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all,
there is reason to believe that the driver operated and drove his
vehicle negligently, resulting in the death of four of his passengers,
physical injuries to others, and the complete loss and destruction of
their goods, and yet the criminal case against him, on motion of the
fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was
banking to support the complaint, either failed or appear or were
reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and
unhesitatingly testified in court to the effect of the said driver was
negligent. In the public interest the prosecution of said erring driver
should be pursued, this, not only as a matter of justice, but for the
promotion of the safety of passengers on public utility buses. Let a
copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages
awarded by the trial court are increased from ONE THOUSAND
(P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death
of Bataclan and for the attorney's fees, respectively, the decision
appealed is from hereby affirmed, with costs.
G.R. No. L-15688 November 19, 1921
REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Orense & Vera for appellant.
Domingo Imperial for appellees.
STREET, J.:
This action was instituted jointly by Remigio Rodrigueza and three
others in the Court of First Instance of the Province of Albay to
recover a sum of money of the Manila Railroad Company as
damages resulting from a fire kindled by sparks from a locomotive
engine under the circumstances set out below. Upon hearing the
cause upon the complaint, answer and an agreed statement of facts,
the trial judge rendered judgment against the defendant company in
favor of the plaintiffs and awarded to them the following sums
respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000;
(2) to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to
Perfecta Losantas, P150; all with lawful interest from March 21,
1919. From this judgment the defendant appealed.
The facts as appearing from the agreed statement, in relation with
the complaint, are to the effect that the defendant Railroad
Company operates a line through the district of Daraga in the
municipality of Albay; that on January 29, 1918, as one of its trains
passed over said line, a great quantity of sparks were emitted from
the smokestack of the locomotive, and fire was thereby
communicated to four houses nearby belonging to the four plaintiffs
respectively, and the same were entirely consumed. All of these
houses were of light construction with the exception of the house of
Remigio Rodrigueza, which was of strong materials, though the roof
was covered with nipa and cogon. The fire occurred immediately
after the passage of the train, and a strong wind was blowing at the
time. It does not appear either in the complaint or in the agreed
statement whose house caught fire first, though it is stated in the
appellant's brief that the fire was first communicated to the house
of Remigio Rodrigueza, from whence it spread to the others.
In the fourth paragraph of the complaint — which is admitted to be
true — it is alleged that the defendant Railroad Company was
conspicuously negligent in relation to the origin of said fire, in the
following respects, namely, first, in failing to exercise proper
supervision over the employees in charge of the locomotive;
secondly, in allowing the locomotive which emitted these sparks to
be operated without having the smokestack protected by some
device for arresting sparks; thirdly, in using in its locomotive upon
this occasion Bataan coal, a fuel of known inferior quality which,
upon combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house
of Remigio Rodrigueza stood partly within the limits of the land
owned by the defendant company, though exactly how far away
from the company's track does not appear. It further appears that,
after the railroad track was laid, the company notified Rodrigueza to
get his house off the land of the company and to remove it from its
exposed position. Rodrigueza did not comply with this suggestion,
though he promised to put an iron roof on his house, which he never
did. Instead, he changed the materials of the main roof to nipa,
leaving the kitchen and media-aguas covered with cogon. Upon this
fact it is contended for the defense that there was contributory
negligence on the part of Remigio Rodrigueza in having his house
partly on the premises of the Railroad Company, and that for this
reason the company is not liable. This position is in our opinion
untenable for the reasons which we shall proceed to state.
In the first place, it will be noted that the fact suggested as
constituting a defense to this action could not in any view of the
case operate as a bar to recovery by the three plaintiffs other than
Remigio Rodrigueza, even assuming that the fire was first
communicated to his house; for said three plaintiffs are in nowise
implicated in the act which supposedly constitutes the defense. In
this connection it will be observed that the right of action of each of
these plaintiffs is totally distinct from that of his co-plaintiff, so much
so that each might have sued separately, and the defendant if it had
seen fit to do so, might in this case have demurred successfully to
the complaint for misjoinder of parties plaintiff. The fact that the
several rights of action of the different plaintiffs arose
simultaneously out of one act of the defendant is not sufficient of
itself to require, or even permit, the joinder of such parties as
coplaintiffs in a single action (30 Cyc., 114) if objection had been
made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta
Losantas are therefore entitled to recover upon the admitted fact
that this fire originated in the negligent acts of the defendant; and
the circumstance that the fire may have been communicated to
their houses through the house of Remegio Rodrigueza, instead of
having been directly communicated from the locomotive, is
immaterial. (See 38 Am. Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas
City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81 Pennsylvania Railroad
Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred
that his house stood upon this ground before the Railroad Company
laid its line over this course; and at any rate there is no proof that
this plaintiff had unlawfully intruded upon the railroad's property in
the act of building his house. What really occurred undoubtedly is
that the company, upon making this extension, had acquired the
land only, leaving the owner of the house free to remove it. Hence
he cannot be considered to have been a trespasser in the beginning.
Rather, he was there at the sufferance of the defendant company,
and so long as his house remained in this exposed position, he
undoubtedly assumed the risk of any loss that might have resulted
from fires occasioned by the defendant's locomotives if operated
and managed with ordinary care. But he cannot be held to have
assumed the risk of any damage that might result from the unlawful
negligence acts of the defendant. Nobody is bound to anticipate and
defend himself against the possible negligence of another. Rather he
has a right to assume that the other will use the care of the ordinary
prudent man. (Philadelphia and Reading Railroad
Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the proximate and only
cause of the damage that occurred was the negligent act of the
defendant in causing this fire. The circumstance that Remigio
Rodrigueza's house was partly on the property of the defendant
company and therefore in dangerous proximity to passing
locomotives was an antecedent condition that may in fact have
made the disaster possible, but that circumstance cannot be
imputed to him as contributory negligence destructive of his right of
action, because, first, that condition was not created by himself;
secondly, because his house remained on this ground by the
toleration, and therefore with the consent of the Railroad Company;
and thirdly, because even supposing the house to be improperly
there, this fact would not justify the defendant in negligently
destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U.
S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345,
350.)lawphil.net
The circumstance that the defendant company, upon planting its
line near Remigio Rodrigueza's house, had requested or directed
him to remove it, did not convert his occupancy into a trespass, or
impose upon him any additional responsibility over and above what
the law itself imposes in such situation. In this connection it must be
remembered that the company could at any time have removed said
house in the exercise of the power of eminent domain, but it elected
not to do so.
Questions similar to that now before us have been under the
consideration of American courts many times, and their decisions
are found to be uniformly favorable to recovery where the property
destroyed has been placed in whole or in part on the right of way of
the railroad company with its express or implied consent. (L. R.
Martin Timber Co. vs. Great Northern Railway Co., 123 Minn., 423;
Ann. Cas., 1915A, p. 496, note; Burroughs vs. Housatonic R.R. Co., 15
Conn., 124; 38 Am. Dec., 64; 74; Southern Ry. Co. vs. Patterson, 105
Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff is apparently
stronger where the company constructs its line in proximity to a
house already built and fails to condemn it and remove it from its
right of way.
From what has been said it is apparent that the judgment appealed
from is in all respect in conformity with the law, and the same is
accordingly affirmed, with costs. So ordered.
G.R. No. 161151
BJDC CONSTRUCTION, REPRESENTED BY ITS
MANAGER/PROPRIETOR JANET S. DELA CRUZ, Petitioner,
vs.
NENA E. LANUZO, CLAUDETTE E. LANUZO, JANET E. LANUZO, JOAN
BERNABE E. LANUZO, and RYAN JOSEE. LANUZO, Respondent.
DECISION
BERSAMIN, J.:
The party alleging the negligence of the other as the cause of injury
has the burden to establish the allegation with competent evidence.
If the action based on negligence is civil in nature, the proof required
is preponderance of evidence.
This case involves a claim for damages arising from the death of a
motorcycle rider in a nighttime accident due to the supposed
negligence of a construction company then undertaking re-blocking
work on a national highway. The plaintiffs insisted that the accident
happened because the construction company did not provide
adequate lighting on the site, but the latter countered that the fatal
accident was caused by the negligence of the motorcycle rider
himself. The trial court decided in favor of the construction
company, but the Court of Appeals (CA) reversed the decision and
ruled for the plaintiffs.
Hence, this appeal.
Antecedents
On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for
damages1 against BJDC Construction (company), a single
proprietorship engaged in the construction business under its
Manager/Proprietor Janet S. de la Cruz. The company was the
contractor of the re-blocking project to repair the damaged portion
of one lane of the national highway at San Agustin, Pili, Camarines
Sur from September 1997to November 1997.
Nena alleged that she was the surviving spouse of the late Balbino
Los Baños Lanuzo (Balbino) who figured in the accident that
transpired at the site of the re-blocking work at about 6:30 p.m. on
October 30, 1997; that Balbino’s Honda motorcycle sideswiped the
road barricade placed by the company in the right lane portion of
the road, causing him to lose control of his motorcycle and to crash
on the newly cemented road, resulting in his instant death; and that
the company’s failure to place illuminated warning signs on the site
of the project, especially during night time, was the proximate cause
of the death of Balbino. She prayed that the company be held liable
for damages, to wit: (a) P5,000.00 as the actual damage to Balbino’s
motorcycle; (b) P100,000.00 as funeral and burial expenses; (c)
P559,786.00 representing the "unearned income in expectancy" of
Balbino; (d) P100,000.00 as moral damages; (e) P75,000.00 as
attorney’s fees, plus P1,500.00 per court appearance; and (f)
P20,000.00 as litigation costs and other incidental expenses.
In its answer,2 the company denied Nena’s allegations of negligence,
insisting that it had installed warning signs and lights along the
highway and on the barricades of the project; that at the time of the
incident, the lights were working and switched on; that its project
was duly inspected by the Department of Public Works and
Highways (DPWH), the Office of the Mayor of Pili, and the Pili
Municipal Police Station; and that it was found to have satisfactorily
taken measures to ensure the safety of motorists.
The company further alleged that since the start of the project in
September 1997, it installed several warning signs, namely: (a) big
overhead streamers containing the words SLOW DOWN ROAD
UNDER REPAIR AHEAD hung approximately 100 meters before the
re-blocking site, one facing the Pili-bound motorists and another
facing the Naga-bound motorists; (b) road signs containing the
words SLOW DOWN ROAD UNDER REPAIR 100 METERS AHEAD
placed on the road shoulders below the streamers; (c) road signs
with the words SLOW DOWN ROAD UNDER REPAIR 50 METERS
AHEAD placed 50 meters before the project site; (d) barricades
surrounded the affected portion of the highway, and a series of 50-
watt light bulbs were installed and switched on daily from 6:00 p.m.
until the following morning; (e) big warning signs containing the
words SLOW DOWN ROAD UNDER REPAIR and SLOW DOWN MEN
WORKING were displayed at both ends of the affected portion of the
highway with illumination from two 50-watt bulbs from 6:00 p.m.
until the following morning; and (f) the unaffected portion of the
highway was temporarily widened in the adjacent road shoulder to
allow two-way vehicular traffic.
The company insisted that the death of Balbino was an accident
brought about by his own negligence, as confirmed by the police
investigation report that stated, among others, that Balbino was not
wearing any helmet at that time, and the accident occurred while
Balbino was overtaking another motorcycle; and that the police
report also stated that the road sign/barricade installed on the road
had a light. Thus, it sought the dismissal of the complaint and
prayed, by way of counterclaim, that the Nena be ordered to pay
P100,000.00 as attorney’s fees, as well as moral damages to be
proven in the course of trial.
The RTC subsequently directed the amendment of the complaint to
include the children of Nena and Balbino as co-plaintiffs, namely:
Janet, Claudette, Joan Bernabe and Ryan Jose, all surnamed Lanuzo.
Hence, the plaintiffs are hereinafter be referred to as the Lanuzo
heirs.
Decision of the RTC
On October 8, 2001, the RTC rendered judgment in favor of the
company, as follows:
Plaintiffs are the survivors of Balbino Los Baños Lanuzo who met a
traumatic death on 30 October, 1997 at about 6:30 p.m., when he
bumped his motorcycle on a barricade that was lighted with an
electric bulb, protecting from traffic the newly-reblocked cement
road between San Agustin and San Jose, Pili, Camarines Sur; they
claim defendant’s OMISSION in lighting up the barricaded portion of
the reblocking project being undertaken by defendant was the
proximate cause of the accident, leaving them bereaved and causing
them actual and moral damages.
Defendant DENIED the claim of plaintiffs; both parties offered
testimonial and documentary evidence, from which this Court,
FINDS
that: plaintiff DID NOT present an eyewitness account of the death
of their decedent; on the contrary, the flagman of defendant was
present when the accident occurred, which was caused by the
decedent having overtaken a motorcycle ahead of [him] and on
swerving, to avoid the barricade, hit it, instead, breaking the lighted
electric bulb on top of the barricade, resulting in the fall of the
decedent about 18 paces from where his motorcycle fell on the
reblocked pavement; the police investigator, policeman Corporal, by
Exh. 1, confirmed the tale of the flagman, aside from confirming the
presence of the warning devices placed not only on the premises but
at places calculated to warn motorists of the ongoing reblocking
project.
OPINION
From the foregoing findings, it is the opinion of this Court that the
plaintiffs were unable to make out a case for damages, with a
preponderance of evidence.
WHEREFORE, Judgment is hereby rendered, DISMISSING the
complaint.3
Decision of the CA
The Lanuzo heirs appealed to the CA.
On August 11, 2003, the CA promulgated its decision declaring that
the issue was whether the company had installed adequate lighting
in the project so that motorists could clearly see the barricade
placed on the newly cemented lane that was then still closed to
vehicular traffic,4 thereby reversing the judgment of the RTC, and
holding thusly:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED and the decision appealed from in Civil Case No. P-2117 is
hereby REVERSED and SET ASIDE. A new judgment is hereby entered
ordering the defendant-appellee to pay the plaintiff-appellants,
heirs of the victim Balbino L. B. Lanuzo, the sums of P50,000.00 as
death indemnity, P20,000.00 by way of temperate damages and
P939,736.50 as loss of earning capacity of the deceased Balbino L. B.
Lanuzo.
SO ORDERED.5
The CA ruled that the following elements for the application of the
doctrine of res ipsa loquitur were present, namely: (1) the accident
was of such character as to warrant an inference that it would not
have happened except for the defendant’s negligence; (2) the
accident must have been caused by an agency or instrumentality
within the exclusive management or control of the person charged
with the negligence complained of; and (3) the accident must not
have been due to any voluntary action or contribution on the part of
the person injured.
The CA regarded as self-serving the testimony of Eduardo Zamora,
an employee of the company who testified that there was an
electric bulb placed on top of the barricade on the area of the
accident. It held that Zamora’s statement was negated by the
statements of Ernesto Alto and Asuncion Sandia to the effect that
they had passed by the area immediately before the accident and
had seen the road to be dark and lit only by a gas lamp. It noted that
SPO1 Corporal, the police investigator, had noticed the presence of
lighted electric bulbs in the area, but the same had been installed on
the other side of the street opposite the barricade.
The CA ruled that the placing of road signs and streamers alone did
not prove that the electric bulbs were in fact switched on at the time
of the accident as to sufficiently light up the newly re-blocked
portion of the highway. It opined that "[t]he trial court gave undue
weight to the self- serving statement of appellee’s employee,
Eduardo Zamora, which was supposedly corroborated by SPO1
Pedro Corporal. SPO1 Corporal arrived at the scene only after the
accident occurred, and thus the electric bulbs could have already
been switched on by Zamora who was at the area of the project." It
concluded that the negligence of the company was the proximate
cause of Balbino’s death; hence, the company was liable for
damages.
The company filed a motion for reconsideration,6 but the CA denied
the motion in the resolution promulgated on November 13, 2003.
Issues
In this appeal, the company submits the following issues, namely:
I. The application by the Honorable Court of Appeals of the doctrine
of res ipsa loquitur to the case at bar, despite and contrary to the
finding, among others, by the trial court that the proximate cause of
the accident is the victim’s own negligence, is "not in accord with
the law or with the applicable decisions of the Supreme Court" [Sec.
6 (a), Rule 45, Rules of Court].
II. The Honorable Court of Appeals, by substituting its own findings
of fact and conclusion with those of the trial court despite the lack of
"strong or cogent reasons" therefor, "has so far departed from the
accepted and usual course of judicial proceedings ... as to call for an
exercise of the power of supervision" by this Honorable Supreme
Court [Sec. 6 (b), Ibid.].
III. The findings by the Honorable Court of Appeals that respondents
(appellants therein) "had satisfactorily presented a prima facie case
of negligence which the appellee (petitioner herein) had not
overcome with an adequate explanation" and which alleged
negligence is "the proximate cause of death of Lanuzo" are
manifestations of grave abuse of discretion in the appreciation of
facts, and constitute a judgment based on a misinterpretation of
facts, which justify a review by this Honorable Supreme Court.7
The company reiterates the categorical finding of the RTC that the
proximate cause of the accident was Balbino’s own negligence, and
that such finding was based on the conclusion stated by SPO1
Corporal in his investigation report to the effect that the incident
was "purely self accident," and on the unrebutted testimony of
Zamora to the effect that Balbino was driving his motorcycle at a
fast speed trying to overtake another motorcycle rider before hitting
the barricade. On the other hand, it insists that its documentary and
testimonial evidence proved its exercise of due care and observance
of the legally prescribed safety requirements for contractors.
The company maintains that Balbino was familiar with the re-
blocking project that had been going on for months because he had
been passing the area at least four times a day during weekdays in
going to and from his place of work in the morning and in the
afternoon; and that he could have avoided the accident had he
exercised reasonable care and prudence.
The company assails the application of the doctrine of res ipsa
loquitur, positing that the Lanuzo heirs did not establish all the
requisites for the doctrine to apply.
Anent the first requisite, the company states that the Lanuzo heirs
did not successfully counter its documentary and testimonial
evidence showing that Balbino’s own negligence had caused the
accident. It cites the fact that Balbino was familiar with the road
conditions and the re-blocking project because he had been passing
there daily; and that Balbino had been driving too fast and not
wearing the required helmet for motorcycle drivers, which were
immediately evident because he had been thrown from his
motorcycle and had landed "18 paces away" from the barricade that
he had hit.
On the second requisite, the company argues that Balbino’s driving
and operation of his motorcycle on the day of the accident indicated
that the accident was not within its exclusive management and
control; and that as to the matters that were within its control, it
sufficiently showed its observance of due and reasonable care and
its compliance with the legally prescribed safety requirements.
Regarding the third requisite, the company reminds that Zamora and
SPO1 Corporal revealed that Balbino was overtaking another
motorcycle rider before hitting the barricade. The credibility of said
witnesses was not challenged, and their testimonies not rebutted;
hence, the CA erred in relying on the recollections of Asuncion
Sandia and Ernesto Alto who were not present when the incident
took place. Sandia and Alto’s testimonies could not be accorded
more weight than Zamora’s eyewitness account, considering that
the latter was believed by the trial judge who had the first-hand
opportunity to observe the demeanor of the witnesses.
Whose negligence was the proximate cause of the death of Balbino?
Ruling of the Court
Inasmuch as the RTC and the CA arrived at conflicting findings of fact
on who was the negligent party, the Court holds that an examination
of the evidence of the parties needs to be undertaken to properly
determine the issue.8The Court must ascertain whose evidence was
preponderant, for Section 1, Rule 133 of the Rules of Court
mandates that in civil cases, like this one, the party having the
burden of proof must establish his case by a preponderance of
evidence.9
Burden of proof is the duty of a party to present evidence on the
facts in issue necessary to establish his claim or defense by the
amount of evidence required by law.10 It is basic that whoever
alleges a fact has the burden of proving it because a mere allegation
is not evidence.11 Generally, the party who denies has no burden to
prove.12 In civil cases, the burden of proof is on the party who would
be defeated if no evidence is given on either side.13 The burden of
proof is on the plaintiff if the defendant denies the factual
allegations of the complaint in the manner required by the Rules of
Court, but it may rest on the defendant if he admits expressly or
impliedly the essential allegations but raises affirmative defense or
defenses, which if proved, will exculpate him from liability.14
By preponderance of evidence, according to Raymundo v. Lunaria: 15
x x x is meant that the evidence as a whole adduced by one side is
superior to that of the other. It refers to the weight, credit and value
of the aggregate evidence on either side and is usually considered to
be synonymous with the term "greater weight of evidence" or
"greater weight of the credible evidence." It is evidence which is
more convincing to the court as worthy of belief than that which is
offered in opposition thereto.
In addition, according to United Airlines, Inc. v. Court of
Appeals,16 the plaintiff must rely on the strength of his own evidence
and not upon the weakness of the defendant’s.
Upon a review of the records, the Court affirms the findings of the
RTC, and rules that the Lanuzo heirs, the parties carrying the burden
of proof, did not establish by preponderance of evidence that the
negligence on the part of the company was the proximate cause of
the fatal accident of Balbino.
Negligence, the Court said in Layugan v. Intermediate Appellate
Court,17 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, 18 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.’"19 In order that a party may be held
liable for damages for any injury brought about by the negligence of
another, the claimant must prove that the negligence was the
immediate and proximate cause of the injury. Proximate cause is
defined as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and
without which the result would not have occurred."20
The test by which the existence of negligence in a particular case is
determined is aptly stated in the leading case of Picart v. Smith,21 as
follows:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability
by that.
The question as to what would constitute the conduct of a prudent
man in a given situation must of course be always determined in the
light of human experience and in view of the facts involved in the
particular case. Abstract speculation cannot here be of much value
but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born of
this 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 the conduct or
guarding against its consequences.
First of all, we note that the Lanuzo heirs argued in the trial and
appellate courts that there was a total omission on the part of the
company to place illuminated warning signs on the site of the
project, especially during night time, in order to warn motorists of
the project. They claim that the omission was the proximate cause
of the death of Balbino.22 In this appeal, however, they contend that
the negligence of the company consisted in its omission to put up
adequate lighting and the required signs to warn motorists of the
project, abandoning their previous argument of a total omission to
illuminate the project site.
During the trial, the Lanuzo heirs attempted to prove inadequacy of
illumination instead of the total omission of illumination. Their first
witness was Cesar Palmero, who recalled that lights had been
actually installed in the site of the project. The next witness was
Ernesto Alto, who stated that he had seen three light bulbs installed
in the site, placed at intervals along the stretch of the road covered
by the project. Alto further stated that he had passed the site on
board his tricycle on October 30, 1997 prior to the accident, and had
seen only a gas lamp, not light bulbs, on his approach. Another
witness of the plaintiffs, Asuncion Sandia, claimed that she had also
passed the site on board a bus on the night just prior to the
accident, and had seen the site to be dark, with only one lane open
to traffic, with no light at all. Obviously, the witnesses of the
plaintiffs were not consistent on their recollections of the significant
detail of the illumination of the site.
In contrast, the company credibly refuted the allegation of
inadequate illumination. Zamora, its flagman in the project,
rendered an eyewitness account of the accident by stating that the
site had been illuminated by light bulbs and gas lamps, and that
Balbino had been in the process of overtaking another motorcycle
rider at a fast speed when he hit the barricade placed on the newly
cemented road. On his part, SPO1 Corporal, the police investigator
who arrived at the scene of the accident on October 30, 1997,
recalled that there were light bulbs on the other side of the
barricade on the lane coming from Naga City; and that the light bulb
on the lane where the accident had occurred was broken because it
had been hit by the victim’s motorcycle. Witnesses Gerry Alejo and
Engr. Victorino del Socorro remembered that light bulbs and gas
lamps had been installed in the area of the project.
Secondly, the company presented as its documentary evidence the
investigation report dated December 3, 1997 of SPO1 Corporal
(Annex 1), the relevant portions of which indicated the finding of the
police investigator on the presence of illumination at the project
site, viz:
SUBJECT: Investigation Report Re: Homicide Thru Reckless
Imprudence
(Self Accident)
xxxx
II.MATTERS INVESTIGATED:
1.To determine how the incident happened.
2.To determine the vehicle involved.
III. FACTS OF THE CASE:
3.At 6:45 P.M. October 30, 1997, Elements of Pili Municipal Police
Station led by SPO2 Melchor Estallo, SPO2 Cesar Pillarda, both
members of the patrol section and SPO1 Pedro D. Corporal,
investigator reported having conducted an on the spot investigation
re: vehicular incident (Self Accident) that happened on or about 6:30
o’clock in the evening of October 30, 1997 along national highway,
San Agustin, Pili, Camarines Sur, wherein one Balbino Lanuzo y Doe,
of legal age, married, a public school teacher, a resident of San Jose,
Pili, Camarines Sur while driving his Honda motorcycle 110 CC
enroute to San Jose, Pili, Camarines Sur from Poblacion, this
municipality and upon reaching at road re: blocking portion of the
national highway at barangay San Agustin, Pili, Camarines Sur and
while overtaking another motorcycle ahead incidentally side-swiped
a road sign/barricade installed at the lane road re: blocking of the
national highway, causing said motorcycle rider to swerved his
ridden motorcycle to the right and stumble down and fell to the
concrete cemented road. Victim was rushed to Bicol Medical Center,
Naga City for treatment but was pronounced dead on arrival.
4.That upon arrival at the scene of the incident it was noted that
road sign/barricade installed on the road has a light.
5.That said road was under repair for almost a month which one
lane portion of the national highway is possible of all passing
vehicles from south and north bound.6.That said motorcycle
stumble down on the newly repair portion of the national highway
and the driver lying down beside the motorcycle.x x x x8.That one of
the passerby revealed that the victim possibly be miscalculated the
road block that made him to tumble down when he applied sudden
brake.IV. FINDINGS/DISCUSSION:9.The time of the incident was at
about 6:30 o’clock in the evening a time wherein dark of the night is
approaching the vision of the driver is affected with the changing
condition and it is all the time when driver should lights his driven
vehicle, as to this case, the driver Balbino Lanuzo y Doe (victim has
exercise all precautionary measures to avoid accident but due to self
accident he incidentally sideswiped the road sign/barricade of the
re: Blocking portion of the national highway resulting him to stumble
down his motorcycle and fell down to the concrete cement road.
10.The driver/victim met unexpectedly (sic) along that one lane
potion of the re: blocking and considering it was night time,
confusion overthrew him and because of sudden impulse, he lost
control on the motorcycle he was driving.
11.That the driver/victim has no crush (sic) helmet at the time of the
incident considering that it should be a basic requirement as to
prevent from any accident.V. RECOMMENDATION:12.Basing on the
above discussion and facts surroundings the case was purely self
accident resulting to Homicide Thru Reckless Imprudence and the
case must be closed. (Emphasis ours.)23Additionally, the company
submitted the application for lighting permit covering the project
site (Annex 7) to prove the fact of installation of the electric light
bulbs in the project site.In our view, the RTC properly gave more
weight to the testimonies of Zamora and SPO1 Corporal than to
those of the witnesses for the Lanuzo heirs.1âwphi1 There was
justification for doing so, because the greater probability pertained
to the former. Moreover, the trial court’s assessment of the
credibility of the witnesses and of their testimonies is preferred to
that of the appellate court’s because of the trial court’s unique first-
hand opportunity to observe the witnesses and their demeanor as
such. The Court said in Cang v. Cullen:24The findings of the trial court
on the credibility of witnesses are accorded great weight and
respect - even considered as conclusive and binding on this Court -
since the trial judge had the unique opportunity to observe the
witness firsthand and note his demeanor, conduct and attitude
under grueling examination. Only the trial judge can observe the
furtive glance, blush of conscious shame, hesitation, flippant or
sneering tone, calmness, sigh of a witness, or his scant or full
realization of an oath - all of which are useful aids for an accurate
determination of a witness' honesty and sincerity. He can thus be
expected to determine with reasonable discretion which testimony
is acceptable and which witness is worthy of belief.Absent any
showing that the trial court's calibration of the credibility of the
witnesses was flawed, we are bound by its assessment. This Court
will sustain such findings unless it can be shown that the trial court
ignored, overlooked, misunderstood, misappreciated, or misapplied
substantial facts and circumstances, which, if considered, would
materially affect the result of the case.25The Court observes, too,
that SPO1 Corporal, a veteran police officer detailed for more than
17 years at the Pili Police Station, enjoyed the presumption of
regularity in the performance of his official duties.26 The
presumption, although rebuttable, stands because the Lanuzo heirs
did not adduce evidence to show any deficiency or irregularity in the
performance of his official duty as the police investigator of the
accident. They also did not show that he was impelled by any ill
motive or bias to testify falsely.
Thirdly, the CA unreasonably branded the testimonies of Zamora
and SPO1 Corporal as "self-serving." They were not. Self-serving
evidence refers to out-of-court statements that favor the declarant’s
interest;27 it is disfavored mainly because the adverse party is given
no opportunity to dispute the statement and their admission would
encourage fabrication of testimony.28 But court declarations are not
self-serving considering that the adverse party is accorded the
opportunity to test the veracity of the declarations by cross-
examination and other methods.There is no question that Zamora
and SPO1 Corporal were thoroughly cross-examined by the counsel
for the Lanuzo heirs. Their recollections remained unchallenged by
superior contrary evidence from the Lanuzo heirs.Fourthly, the
doctrine of res ipsa loquitur had no application here. In Tan v. JAM
Transit, Inc.,29 the Court has discussed the doctrine thusly:
Res ipsa loquitur is a Latin phrase that literally means "the thing or
the transaction speaks for itself." It is a maxim for the rule that the
fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff's prima facie case, and present a
question of fact for defendant to meet with an explanation. Where
the thing that caused the injury complained of is shown to be under
the management of the defendant or his servants; and the accident,
in the ordinary course of things, would not happen if those who had
management or control used proper care, it affords reasonable
evidence — in the absence of a sufficient, reasonable and logical
explanation by defendant — that the accident arose from or was
caused by the defendant's want of care. This rule is grounded on the
superior logic of ordinary human experience, and it is on the basis of
such experience or common knowledge that negligence may be
deduced from the mere occurrence of the accident itself. Hence, the
rule is applied in conjunction with the doctrine of common
knowledge.For the doctrine to apply, the following requirements
must be shown to exist, namely: (a) the accident is of a kind that
ordinarily does not occur in the absence of someone’s negligence;
(b) it is caused by an instrumentality within the exclusive control of
the defendant or defendants; and (c) the possibility of contributing
conduct that would make the plaintiff responsible is eliminated.30
The Court has warned in Reyes v. Sisters of Mercy
Hospital,31 however, that "res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case."
Based on the evidence adduced by the Lanuzo heirs, negligence
cannot be fairly ascribed to the company considering that it has
shown its installation of the necessary warning signs and lights in the
project site. In that context, the fatal accident was not caused by any
instrumentality within the exclusive control of the company. In
contrast, Balbino had the exclusive control of how he operated and
managed his motorcycle. The records disclose that he himself did
not take the necessary precautions. As Zamora declared, Balbino
overtook another motorcycle rider at a fast speed, and in the
process could not avoid hitting a barricade at the site, causing him to
be thrown off his motorcycle onto the newly cemented road. SPO1
Corporal’s investigation report corroborated Zamora’s declaration.
This causation of the fatal injury went uncontroverted by the Lanuzo
heirs.Moreover, by the time of the accident, the project, which had
commenced in September 1997, had been going on for more than a
month and was already in the completion stage. Balbino, who had
passed there on a daily basis in going to and from his residence and
the school where he then worked as the principal, was thus very
familiar with the risks at the project site. Nor could the Lanuzo heirs
justly posit that the illumination was not adequate, for it cannot be
denied that Balbino’s motorcycle was equipped with headlights that
would have enabled him at dusk or night time to see the condition
of the road ahead. That the accident still occurred surely indicated
that he himself did not exercise the degree of care expected of him
as a prudent motorist.According to Dr. Abilay, the cause of death of
Balbino was the fatal depressed fracture at the back of his head, an
injury that Dr. Abilay opined to be attributable to his head landing
on the cemented road after being thrown off his motorcycle.
Considering that it was shown that Balbino was not wearing any
protective head gear or helmet at the time of the accident, he was
guilty of negligence in that respect. Had he worn the protective head
gear or helmet, his untimely death would not have occurred.
The RTC was correct on its conclusions and findings that the
company was not negligent in ensuring safety at the project site. All
the established circumstances showed that the proximate and
immediate cause of the death of Balbino was his own negligence.
Hence, the Lanuzo heirs could not recover damages. 32
WHEREFORE, the Court GRANTS the petition for review on
certiorari; REVERSES and SETS ASIDE the decision promulgated on
August 11, 2003 by the Court of Appeals; REINSTATES the decision
rendered on October 8, 2001 by the Regional Trial Court, Branch 32,
in Pili, Camarines Sur dismissing the complaint; and MAKES no
pronouncements on costs of suit.
SO ORDERED.
G.R. No. 198342 August 13, 2014
REMEDIOS O. YAP, Petitioner,
vs.
ROVER MARITIME SERVICES CORPORATION, MR. RUEL BENISANO
and/or UCO MARINE CONTRACTING W.L.L., Respondents.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45
of the Rules of Court seeking to reverse and set aside the
Decision1 and Resolution,2 dated June 6, 2011 and August 23, 2011,
respectively, of the Court of Appeals (CA) in CA-G.R. SP No. 114417
which reversed the Decision3 and Resolution,4 dated January 29,
2010 and March 25, 2010, respectively, of the National Labor
Relations Commission (NLRC) in NLRC LAC No. (OFW-M) 04-000292-
08.
The antecedent facts are as follows:
The deceased, Dovee M. Yap, was a seafarer who had been
employed by respondents Rover Maritime Services Corporation, its
foreign principal, UCO-Marine Contracting W. L. L., and Ruel
Benisano, in various capacities under different contracts of
employmentcontinuously for a period of ten (10) years. 5 In his last
contract with respondents, dated July 15, 2005, he was hired as
Third Mate on board vessel UCO XX for a period of one (1) year with
a basic monthly salary of Six Hundred Dollars (US$600.00).6 He
boarded the vessel on July 23, 2005.
On July 23, 2006, the last day ofDovee Yap’s contract, he met an
accident. While inspecting a lifeboat, heslipped and hit his back on
the steel lifeboat ladder.7 He was brought to a hospital in Bahrain
and was confined thereat for two (2) weeks.8
On August 17, 2006, Dovee Yap was repatriated to the Philippines.
On August 19, 2006, he was admitted at the Doctors Medical Center
in Iloilo City for three (3) weeks for further treatment. Sometime
later, Dovee Yap was again confined at the (Iloilo) Western Visayas
Medical Center, with the diagnosis of "squamous cell carcinoma
ofthe lungs with metastasis to the spine and probably the brain."9
On July 17, 2007, Dovee Yap filed against respondents a complaint
for permanent disability benefits, sickwages, reimbursement of
hospital, medical, and doctor’s expenses, actual, moral and
exemplary damages, and attorney’s fees.10
On August 19, 2007 or during the pendency of the case, Dovee Yap
died of "Multiple Organ Failure Secondary To Pulmonary Squamous
Cell CA With Distant Metastasis (Brain and Bone) And Obstructive
Pneumonia Secondary To Electrolyte Imbalance Secondary To
Gastric Ulcer Secondary To S/P Radio Therapy." His widow,
Remedios O. Yap, substituted him as party-complainant and the
claim for disability benefits was then converted into a claim for
death benefits.11
On February 28, 2008, the Labor Arbiter dismissed the Complaint for
lack of merit in the following manner:
Be that as it may, it is clear thatDovee M. Yap did not die due to an
illness which is the consequence of his slipping on the steel ladder
but died of totally different diseases which are diagnosed as Pott’s
disease/tuberculosis, pneumonia and squamous cell carcinoma,
which did not manifest during his employment with the
Respondents.
xxxx
It appears in this case that the injury suffered by Dovee M. Yap was
not the proximate cause of his death, therefore, not work-related
and that the death did not arise during the term of the contract of
Dovee M. Yap, but more than one (1) year after.
In order to be compensable, itis not necessary that the death
occurred during the effectivity of the contract provided the death
was a natural result of an illness or injury that the seafarer incurred
while on board the vessel, and during the effectivity of his contract.
These circumstances are not obtaining in the instant case, Dovee M.
Yap was repatriated on a finished contract and not on medical
grounds as there was no recommendation by the doctors in Bahrain
who treated him when he slipped on the ladder that he would
undergo further treatment due to his fall.12
In its Decision13 dated January 29, 2010, however, the NLRC
reversed the Labor Arbiter’s Decision and ordered respondents to
pay petitioner the death benefits she claimed. According to the
NLRC, the accident that Dovee Yap encountered was the proximate
cause of his death, to wit:
We agree with the Complainant that the accident of her husband
Dovee Yap on July 23, 2006 was the proximate cause of his illness
and eventual death. It was not disputed that Yap, prior to his last
deployment in July 2005, passed through the required pre-medical
examination and was declared fit to work. In his ten years of
employment with Respondents, there was no showing that he was
afflicted with T.B. or any other illness as he passed all the required
pre-medical examinations. We conclude, therefore, that the injuryhe
sustained in the July 23, 2006 accident triggered his pulmonary
illness and, therefore, his death should be compensable following
the liberal interpretation of the employment contracts that all
doubts shall beresolved in favor of labor.14
Upon denial by the NLRC of itsMotion for Reconsideration,
respondents appealed to the CA via Petition for Certiorarialleging
that the NLRC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in awarding the death benefitsto
petitioner. On June 6, 2011, the CA reversed the ruling ofthe NLRC in
its Decision,15the pertinent portions of which read:
In the instant case, it is undisputed that the death of Dovee Yap
occurred when he was no longer in the employ of petitioners. His
one-year contract of employment expired on 23 July 2006. Bethat as
it may, it can also be said that his employmentceased upon his
repatriation to the Philippines on 17 August 2006. Consequently,
when Dovee Yap died on 19 August 2007, more than a year had
already lapsed from the expiration of his contract of employment;
thus, it can no longer be said that Dovee Yap was an employee of
petitioners. Accordingly, his beneficiaries are not entitled to the
death benefits under the Standard Employment Contract for
Seafarers.
xxxx
x x x In this case, private respondentfailed to adduce substantial
evidence that the injury sustained by her deceased husband was the
proximate cause of his death. x x x Verily, We find no causal
connection between this illness and the accidental slip. Absent a
post-medical examination or its equivalent to show that the disease
of which Dovee Yap died was contracted during his employment or
that his working conditions increased the risk of contracting the
aforesaid ailment, the petitioners cannot be made liable for death
compensation.
Aggrieved, petitioner filed a Motion for Reconsideration reiterating
the argument that Dovee Yap can still beconsidered "in the
employment of the company at the time of his death" pursuant to
Article 26.3, in relation to Articles 22 and 23 of their Collective
Bargaining Agreement (CBA),16 which provides:
26.3 For the purpose of this clause, a seafarer shall be regarded as
"in the employment of the company" for as long as the provisions of
Articles 22 and 23 applyand provided the death is directly
attributable to sickness or injury that caused the seafarer’s
employment to be terminatedin accordance with Article 19.1 b).
xxxx
Article 22: Medical Attention
22.1 A seafarer shall be entitled to immediate medical attention
when required.
22.2 A seafarer who is hospitalized abroad owing to sickness or
injury shall be entitled to medical attention (including
hospitalization) at the Company’s expense for as long as such
attention is required or until the seafarer is repatriatedto the port of
engagement, whichever is the earlier.
22.3 A seafarer repatriated to their port of engagement, unfit as a
result of sickness or injury, shall be entitled to medical attention
(including hospitalization) at the Company’s expense.
a. In the case of sickness, for up to 130 days after repatriation,
subject to the submission of satisfactory medical reports.
b. In the case of injury, for as long as medical attention is required or
untila medical determination is made in accordance with clause 25.2
concerning permanent disability.
22.4 Proof of continued entitlement to medical attention shall be by
submission of satisfactory medical reports, endorsed.
Article 23: Sick Pay
23.1 When a seafarer is landed at any port because of sickness or
injury payment of their basic wages shall continue until they have
been repatriatedat the Company’s expense asspecified in Article 20.
23.2 Thereafter the seafarers shall beentitled to sick pay at the rate
equivalent to their basic wage while they remain sick up to a
maximum of 130 days.
23.3 However, in the event of incapacity due to an accident the
basic wages shall be paid until the injured seafarer has been cured
or until a medical examination is made in accordance with clause
25.2 concerning permanent disability.
23.4 Proof of continued entitlement to sick pay shall be by
submission of satisfactory medical reports, endorsed, where
necessary, by a Company-appointed doctor.If a doctor appointed by
or on behalf of the seafarer disagrees with the assessment, a third
doctor may be nominated jointly between the Company and the
Union and the decision of this doctor shall be final and binding on
the parties.17
The CA, however, rejectedthis view considering that Dovee Yap’s
death resulting from cancer of the lungs with metastasis to the spine
and brain cannot be said to have been directly attributable to his
accident on the ship.18 In addition, the applicability of Articles 22 and
23 relating to medical attention and sick pay no longer applies since
Dovee Yap had already been repatriated at the time of his death.19
Hence, the present petition.
Petitioner invokes the following grounds to support its petition:
I.
THE COURT OF APPEALS COMMITTED BLATANT ERROR, GRAVE
ABUSE OF DISCRETION ANDARBITRARINESS WHEN IT REVERSED THE
DECISION AND FINDINGS OF FACT OF THE NATIONAL LABOR
RELATIONS COMMISSION.
II.
THE COURT OF APPEALS COMMITTED BLATANT ERROR, GRAVE
ABUSE OF DISCRETION ANDARBITRARINESS WHEN IT DISREGARDED
THE CLEAR PROVISIONS OF DOVEE YAP’S COLLECTIVE BARGAINING
AGREEMENT (CBA) WHICH CLEARLY PROVIDES THAT HIS DEATH IS
COMPENSABLE AS IT IS DIRECTLY ATTRIBUTABLE TOTHE INJURY
THAT CAUSED HIS EMPLOYMENT TO BE TERMINATED.
III.
THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE
BENEVOLENT PROVISIONS OF DOVEE YAP’S CBA AND EVIDENCE
ADDUCED ON RECORDS, CONSISTENT WITH RELEVANT
JURISPRUDENCE PROMULGATED BY THIS HONORABLE COURT.
IV.
PETITIONER WILL SUFFER IRREPARABLE INJUSTICE IF THE DECISION
OF THE COURT OF APPEALS WILL NOT BE RECTIFIED BY THIS
HONORABLE COURT.
In essence, the issue to be resolvedis whether or not the petitioner
is entitled to compensation for the death of her husband, Dovee
Yap.
We rule in the negative.
The terms and conditions of a seafarer’s employment, including
claims for death and disability benefits, is a matter governed, not
only by medical findings, but by the contract he entered into with his
employer and the law which is deemed integrated therein.20 For as
long as the stipulations in the contract are not contrary to
law,morals, public order, or public policy, they have the force of law
between the parties.21
Paragraph 2 of the Contract ofEmployment between petitioner’s
husband and respondents states that the terms and conditionsof
Department of Labor and Employment (DOLE) Order No. 4, Series of
2000, as amended by Philippine Overseas Employment
Administration (POEA) Memorandum Circular No. 9, Series of 2000,
entitled the Standard Terms and Conditions Governing the
Employment of Filipino Seafarers On Board Ocean-Going Vessels
(POEA Standard Employment Contract), shall be strictly and
faithfully observed.22 Said issuances provide a set of minimum
requirements acceptable to the government for the employment of
Filipino seafarers on board ocean-going vessels.23
Section 20 (A) of the POEA Standard Employment Contract provides:
SECTION 20. COMPENSATION AND BENEFITS
A. COMPENSATION AND BENEFITS FOR DEATH
1. In the case of work-related deathof the seafarer during the term
of his contract,the employer shall pay his beneficiaries the Philippine
Currency equivalent to the amount of Fifty Thousand US dollars
(US$50,000) and an additional amount of Seven Thousand US dollars
(US$7,000) to each child under the age of twenty-one (21) but not
exceeding four (4) children, at the exchange rate prevailing during
the time of payment.
xxxx
4. The other liabilities of the employer when the seafarer dies as a
result of work-related injury or illness during the term of
employmentare as follows:
a. The employer shall pay the deceased's beneficiary all outstanding
obligations due the seafarer under this Contract.
b. The employer shall transport the remains and personal effects of
the seafarer to the Philippines at employer's expense except if the
death occurred in a port where local government laws or regulations
do not permit the transport of such remains. In case death occurs at
sea, the disposition of the remains shall be handled or dealt with in
accordance with the master's best judgment. In all cases, the
employer/master shall communicate with the manning agency to
advice (sic) for disposition of seafarer's remains.
c. The employer shall pay the beneficiaries of the seafarer the
Philippines currency equivalent to the amount of One Thousand US
dollars (US$1,000) for burial expenses at the exchange rate
prevailing during the time of payment.24
Pursuant to the aforequoted provision, and a long line of
Jurisprudence25 explaining the same, in order for the beneficiaries of
a seafarer to be entitled to death compensation from the employer,
it must be proven that the death of the seafarer (1) is work-related;
and (2) occurred during the term of his contract.
It is an oft-repeated rule thatwhoever claims entitlement to the
benefits provided by law should establish his right thereto by no less
than substantial evidence.26 Substantial evidence is more than a
mere scintilla. It must reach the level of relevant evidence as a
reasonable mind might accept as sufficient to support a
conclusion.27 The evidence mustbe real and substantial, and not
merelyapparent; for the duty to prove work-causation or work-
aggravation imposed by law isreal and not merely apparent.28 As
such, the burden to prove entitlementto death benefits lies on the
petitioner.29
A perusal of the records would revealthat petitioner failed to prove
by substantial evidence that the death ofher husband occurred
during the term of his employment contract and that the cause of
death was work-related.
First, it is clear from the evidence presented that petitioner’s
husband did not pass away during the term ofhis employment. His
contract of employment with respondents expired on July 23,2006
whereas his death occurred more than a year thereafter or on
August 19, 2007. As the CA noted, even if it is said that his
employment ceased upon his repatriation to the Philippines on
August 17, 2006, the fact remains that his death took place long
after the expiration of his employment.30
Second, petitioner failed to adduce proofthat the death of Dovee
Yap was work-related. We have consistently ruled that unless there
is substantial evidence showing that: (a) the cause ofthe seaman’s
death was reasonably connected to his work; or (b) the
sickness/ailment for which he died is an accepted occupational
disease; or (c) his working conditions increased the risk of
contracting the disease for which he died, death compensation
benefits cannot be awarded.31
To substantiate her claim for death compensation, petitioner
presented the accident report of the vessel’s captain, the referral
form of the Qatar Petroleum Medical Service Department indicating
that an X-Ray was conducted on Dovee Yap, the medical report of
the attending physician of Iloilo Medical Center containing an
account of the tests conducted on him and their respective findings,
the consultation report of the radiologist of Iloilo Doctor’s Hospital
showing the condition of Yap’s spine, and his certificate of death,
among others.32 These documents, however, exhibit nothing more
than Dovee Yap’s condition at the time the tests were conducted
after his repatriation, the factof his accidental slip on board the
vessel and of his eventual death. Regrettably, explanations as to the
causal correlation among them are lacking. While the evidence
presented bear results of his "slightly enhancing hypointense
lesions, with vertebral body compression," "multiple mass lesions in
the brain," and "squamous cell carcinoma of the lungs with
metastasis to the spine and probably to the brain," there is no
established link connecting Dovee Yap’s accidental slip to the lung
cancer and pneumonia that killed him. Without competent
evaluation and interpretation by medical experts on how the
findings actually relate to the facts surrounding the case, we cannot
just automatically conclude that his death was a product of his
accident on board the ship.
It may be recalled that Dovee Yap was brought to a hospital in
Bahrain and was confined thereat for two (2) weeks. Had there been
any indication during said confinement of his cancer of the lungs or
pneumonia which caused his death, petitioner should have at least
submitted a report thereof from the Bahrain hospital.
Unfortunately, other than the accident report and referral form
depicting illegible, handwritten statements, there is no other record
or documentation which will show any symptom of Dovee Yap’s
illness during his employment on board the vessel. The pertinent
medical reports submitted were issuedafter Yap had already
disembarked from the vessel. Moreover, as the CA noted, Dovee Yap
did not even submit himself to the mandatory post-employment
medical examination within three (3) days from his arrival in the
Philippines.33 Neither was there any indication that he was physically
incapacitated to do so. To ignore this mandatory rule would
certainly be unfair to the employer who would have difficulty
determining the cause of a claimant’s illness considering the passage
of time.34 It is, therefore, difficult to say that Dovee Yap acquired or
developed lung cancer or pneumonia asa result of his work in the
vessel.
Neither can it be said that Dovee Yap’s working conditions increased
the risk of contracting the disease for which he died. We have ruled
in the past that petitioner need not show a direct causal connection
as positive propositions on employment factors like age, position,
actual work, dietary provisions, exposure to substances, and
possibility ofrecovery may suffice.35 We, however, find no evidence
on record nor allegation in the pleadings showing how Dovee Yap’s
working conditions involved exposure to the risks of contracting
cancer of the lungs or pneumonia.
In addition, while Dovee Yap’s pneumonia may be listed as an
occupational disease under Section 32-A of the POEA Standard
Employment Contract,36 petitioner’s failure to comply with its
conditions bars the award of death compensation benefits. The
pertinent provisions of said Contract provide:
SECTION 32-A OCCUPATIONAL DISEASES
For an occupational disease and the resulting disability or death to
be compensable, all of the following conditions mustbe satisfied:
1. The seafarer's work mustinvolve the risks described herein;
2. The disease was contracted as a result of the seafarer's exposure
to the described risks;
3. The disease was contracted within a period of exposure and under
such other factors necessary to contract it;
4. There was no notorious negligence on the part of the seafarer.
The following diseases are considered as occupational when
contracted:
OCCUPATIONAL DISEASES
xxx xxx xxx
13. Pneumonia. All of the following conditions must be met:
a. There must be an honest and definite history of wetting and
chilling during the course of employment and also, of injury to the
chest wall with or without rib fracture, or inhalation of noxious
gases, fumes and other deleterious substances in the place of work.
b. There must be direct connection between the offending agent or
event and the seafarer’s illness.
c. The signs of consolidation should appear soon (within a few
hours) and the symptoms of initial chilling and fever should at least
be 24 hours after the injury or exposure.
d. The patient must manifest any of the following symptoms within a
few days of the accident: (1) severe chill and fever; (2) headache and
pain, agonizing in character, in the side of the body; (3) short, dry,
painful cough with blood-tinged expectoration; and (4) physical signs
of consolodation, with finerales.37
As mentioned previously, apart from the accident report and
referral form presented during the term of Yap’s employment,
petitioner submitted no other evidence to establish compliance with
the requirements enumerated above. Thus, respondents cannot be
held liable for death compensation on the basis of Section 32-A.
It must be further noted that the NLRC granted petitioner’s claim for
death compensation essentially because prior to his last
deployment, Dovee Yap passed the required pre-employment
medical examination and was declared fit to work.38 It ruled that "in
his ten years of employment with respondents, there was no
showing that he was afflicted with T.B. or any other illness as he
passed all the required pre-employment medical examinations." On
this premise, the NLRC concluded that the injury he sustained in the
July 23, 2006 accident triggered his pulmonary illness.
We are not persuaded. The mere factthat Dovee Yap was declared
fit to work in his pre-medical examinationsfor the past ten (10) years
of his employment does not necessarily follow that his pulmonary
illness and cancer of the lungs was brought about by the accident he
encountered. We have repeatedly ruled that the pre-employment
medical examination is not exploratory in nature. 39 It was not
intended to be a totally in-depth and thorough examination of an
applicant’s medical condition. It merely determines whether one is
"fit to work" at sea or "fit for sea service," and does not reveal the
real state of healthof an applicant. Thus, the "fit to work"
declaration in Yap’s pre-employment medical examination cannot
be a conclusive proof to show that he was free from any ailment
prior to his deployment.40
We are neither convinced by petitioner’s argument that by virtue of
Article 26.3 in relation to Articles 22 and 23 of the CBA, her husband
may still be considered as "in the employment of the company."
First of all, there is doubt as to whether the parties are actually
covered under the CBA since, as respondents point out, not only
isthe same unsigned by the parties concerned, but petitioner did not
present any proof to indicate Dovee Yap’s membership in the
particular union covered therein. Note that the maritime company
identified in the CBA is not even the respondents but a certain
"Interorient Navigation Company Ltd."41 Second, even assuming that
the CBA is applicable in this case, Dovee Yap still cannot be
considered as in the employment of the company.1âwphi1 The
provisions relied upon by petitioner require that the seafarer has
not been repatriated or if so, that his death is directly attributable to
the sickness or injury that caused him to be medically repatriated.
But there is nothing in the records which will indicate that Dovee
Yap was repatriated by reason of his illness. More importantly, as we
have already discussed, there is no showing that Dovee Yap’s death
is directly attributable to the accident he encountered on the vessel.
While the accident may have led petitioner’s husband to seek
medical attention which resulted in the discovery of his pneumonia
and cancer of the lungs, it cannot be hastily assumed thatit was
likewise the cause of his disease. Indeed, one’s predisposition
todevelop cancer is affected not only by one’s work, but also by
many factors outside of one’s working environment. In the absence
of substantial evidence, Dovee Yap’s accidental slip on board the
vessel cannot be automatically believed to have increased his risk of
contracting lung cancer.42
Hence, while it is true that labor contracts are impressed with public
interest and that the provisions of the POEA Standard Employment
Contract must be construed logically and liberallyin favor of Filipino
seamen in the pursuit of their employment on board ocean-going
vessels, still the rule is that justice is in every case for the deserving,
to be dispensed with in the light of established facts, the applicable
law, and existing jurisprudence.43
WHEREFORE, premises considered, the instant petition is DENIED.
The Decision and Resolution, dated June 6, 2011 and August 23,
2011, respectively, of the Court of Appeals in CA-G.R. SP No. 114417
are hereby AFFIRMED.
SO ORDERED.
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court
of Appeals, dated March 31, 1991, reversing the contrary decision of
the Regional Trial Court, Branch 36, Dumaguete City, and awarding
damages instead to private respondent Eliza Jujeurche Sunga as
plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent
Eliza Jujeurche G. Sunga, then a college freshman majoring in
Physical Education at the Siliman University, took a passenger
jeepney owned and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the
back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney
stopped to let a passenger off. As she was seated at the rear of the
vehicle, Sunga gave way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured. She sustained a fracture of the "distal
third of the left tibia-fibula with severe necrosis of the underlying
skin." Closed reduction of the fracture, long leg circular casting, and
case wedging were done under sedation. Her confinement in the
hospital lasted from August 23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she
would remain on a cast for a period of three months and would have
to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against
Calalas, alleging violation of the contract of carriage by the former in
failing to exercise the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint against
Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as third-party
defendant and absolved Calalas of liability, holding that it was the
driver of the Isuzu truck who was responsible for the accident. It
took cognizance of another case (Civil Case No. 3490), filed by
Calalas against Salva and Verena, for quasi-delict, in which Branch 37
of the same court held Salva and his driver Verena jointly liable to
Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was
reversed on the ground that Sunga's cause of action was based on a
contract of carriage, not quasi-delict, and that the common carrier
failed to exercise the diligence required under the Civil Code. The
appellate court dismissed the third-party complaint against Salva
and adjudged Calalas liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and
SET ASIDE, and another one is entered ordering defendant-appellee
Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case
No. 3490 that the negligence of Verena was the proximate cause of
the accident negates his liability and that to rule otherwise would be
to make the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the jeepney by the
truck owned by Salva was a caso fortuito. Petitioner further assails
the award of moral damages to Sunga on the ground that it is not
supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No.
3490 finding the driver and the owner of the truck liable for quasi-
delict ignores the fact that she was never a party to that case and,
therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the
same. The issue in Civil Case No. 3490 was whether Salva and his
driver Verena were liable for quasi-delict for the damage caused to
petitioner's jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual, is premised
upon the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas in
breach of contract, the action can be prosecuted merely by proving
the existence of the contract and the fact that the obligor, in this
case the common carrier, failed to transport his passenger safely to
his destination.2 In case of death or injuries to passengers, Art. 1756
of the Civil Code provides that common carriers are presumed to
have been at fault or to have acted negligently unless they prove
that they observed extraordinary diligence as defined in Arts. 1733
and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case
No. 3490, finding Salva and his driver Verena liable for the damage
to petitioner's jeepney, should be binding on Sunga. It is immaterial
that the proximate cause of the collision between the jeepney and
the truck was the negligence of the truck driver. The doctrine of
proximate cause is applicable only in actions for quasi-delict, not in
actions involving breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation between
him and another party. In such a case, the obligation is created by
law itself. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the
obligation, and the function of the law is merely to regulate the
relation thus created. Insofar as contracts of carriage are concerned,
some aspects regulated by the Civil Code are those respecting the
diligence required of common carriers with regard to the safety of
passengers as well as the presumption of negligence in cases of
death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7,
while the extraordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with due regard for all the
circumstances.
Art. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the duty of
petitioner to prove that he had to observe extraordinary diligence in
the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human
care and foresight could provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances" as
required by Art. 1755? We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly
parked, its rear portion being exposed about two meters from the
broad shoulders of the highway, and facing the middle of the
highway in a diagonal angle. This is a violation of the R.A. No. 4136,
as amended, or the Land Transportation and Traffic Code, which
provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his motor
vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more
passengers than the allowed seating capacity of the jeepney, a
violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any motor
vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a
peril greater than that to which the other passengers were exposed.
Therefore, not only was petitioner unable to overcome the
presumption of negligence imposed on him for the injury sustained
by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.
We find it hard to give serious thought to petitioner's contention
that Sunga's taking an "extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the many
victims of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. This is also true of
petitioner's contention that the jeepney being bumped while it was
improperly parked constitutes caso fortuito. A caso fortuito is an
event which could not be foreseen, or which, though foreseen, was
inevitable.3 This requires that the following requirements be
present: (a) the cause of the breach is independent of the debtor's
will; (b) the event is unforeseeable or unavoidable; (c) the event is
such as to render it impossible for the debtor to fulfill his obligation
in a normal manner, and (d) the debtor did not take part in causing
the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his
jeepney with its body protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging
that it is excessive and without basis in law. We find this contention
well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college
student in that school year 1989-1990 at the Silliman University,
majoring in Physical Education. Because of the injury, she was not
able to enroll in the second semester of that school year. She
testified that she had no more intention of continuing with her
schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which
has a defect already."
Plaintiff-appellant likewise testified that even while she was under
confinement, she cried in pain because of her injured left foot. As a
result of her injury, the Orthopedic Surgeon also certified that she
has "residual bowing of the fracture side." She likewise decided not
to further pursue Physical Education as her major subject, because
"my left leg . . . has a defect already."
Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral damages in the sum
of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for
damages predicated on a breach of contract for it is not one of the
items enumerated under Art. 2219 of the Civil Code.5 As an
exception, such damages are recoverable: (1) in cases in which the
mishap results in the death of a passenger, as provided in Art. 1764,
in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in
which the carrier is guilty of fraud or bad faith, as provided in Art.
2220.6
In this case, there is no legal basis for awarding moral damages since
there was no factual finding by the appellate court that petitioner
acted in bad faith in the performance of the contract of carriage.
Sunga's contention that petitioner's admission in open court that
the driver of the jeepney failed to assist her in going to a nearby
hospital cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the hospital
does not imply that petitioner was utterly indifferent to the plight of
his injured passenger. If at all, it is merely implied recognition by
Verena that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31,
1995, and its resolution, dated September 11, 1995, are AFFIRMED,
with the MODIFICATION that the award of moral damages is
DELETED.
SO ORDERED.

G.R. No. L-15688 November 19, 1921
REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Orense & Vera for appellant.
Domingo Imperial for appellees.
STREET, J.:
This action was instituted jointly by Remigio Rodrigueza and three
others in the Court of First Instance of the Province of Albay to
recover a sum of money of the Manila Railroad Company as
damages resulting from a fire kindled by sparks from a locomotive
engine under the circumstances set out below. Upon hearing the
cause upon the complaint, answer and an agreed statement of facts,
the trial judge rendered judgment against the defendant company in
favor of the plaintiffs and awarded to them the following sums
respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000;
(2) to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to
Perfecta Losantas, P150; all with lawful interest from March 21,
1919. From this judgment the defendant appealed.
The facts as appearing from the agreed statement, in relation with
the complaint, are to the effect that the defendant Railroad
Company operates a line through the district of Daraga in the
municipality of Albay; that on January 29, 1918, as one of its trains
passed over said line, a great quantity of sparks were emitted from
the smokestack of the locomotive, and fire was thereby
communicated to four houses nearby belonging to the four plaintiffs
respectively, and the same were entirely consumed. All of these
houses were of light construction with the exception of the house of
Remigio Rodrigueza, which was of strong materials, though the roof
was covered with nipa and cogon. The fire occurred immediately
after the passage of the train, and a strong wind was blowing at the
time. It does not appear either in the complaint or in the agreed
statement whose house caught fire first, though it is stated in the
appellant's brief that the fire was first communicated to the house
of Remigio Rodrigueza, from whence it spread to the others.
In the fourth paragraph of the complaint — which is admitted to be
true — it is alleged that the defendant Railroad Company was
conspicuously negligent in relation to the origin of said fire, in the
following respects, namely, first, in failing to exercise proper
supervision over the employees in charge of the locomotive;
secondly, in allowing the locomotive which emitted these sparks to
be operated without having the smokestack protected by some
device for arresting sparks; thirdly, in using in its locomotive upon
this occasion Bataan coal, a fuel of known inferior quality which,
upon combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house
of Remigio Rodrigueza stood partly within the limits of the land
owned by the defendant company, though exactly how far away
from the company's track does not appear. It further appears that,
after the railroad track was laid, the company notified Rodrigueza to
get his house off the land of the company and to remove it from its
exposed position. Rodrigueza did not comply with this suggestion,
though he promised to put an iron roof on his house, which he never
did. Instead, he changed the materials of the main roof to nipa,
leaving the kitchen and media-aguas covered with cogon. Upon this
fact it is contended for the defense that there was contributory
negligence on the part of Remigio Rodrigueza in having his house
partly on the premises of the Railroad Company, and that for this
reason the company is not liable. This position is in our opinion
untenable for the reasons which we shall proceed to state.
In the first place, it will be noted that the fact suggested as
constituting a defense to this action could not in any view of the
case operate as a bar to recovery by the three plaintiffs other than
Remigio Rodrigueza, even assuming that the fire was first
communicated to his house; for said three plaintiffs are in nowise
implicated in the act which supposedly constitutes the defense. In
this connection it will be observed that the right of action of each of
these plaintiffs is totally distinct from that of his co-plaintiff, so much
so that each might have sued separately, and the defendant if it had
seen fit to do so, might in this case have demurred successfully to
the complaint for misjoinder of parties plaintiff. The fact that the
several rights of action of the different plaintiffs arose
simultaneously out of one act of the defendant is not sufficient of
itself to require, or even permit, the joinder of such parties as
coplaintiffs in a single action (30 Cyc., 114) if objection had been
made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta
Losantas are therefore entitled to recover upon the admitted fact
that this fire originated in the negligent acts of the defendant; and
the circumstance that the fire may have been communicated to
their houses through the house of Remegio Rodrigueza, instead of
having been directly communicated from the locomotive, is
immaterial. (See 38 Am. Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas
City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81 Pennsylvania Railroad
Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred
that his house stood upon this ground before the Railroad Company
laid its line over this course; and at any rate there is no proof that
this plaintiff had unlawfully intruded upon the railroad's property in
the act of building his house. What really occurred undoubtedly is
that the company, upon making this extension, had acquired the
land only, leaving the owner of the house free to remove it. Hence
he cannot be considered to have been a trespasser in the beginning.
Rather, he was there at the sufferance of the defendant company,
and so long as his house remained in this exposed position, he
undoubtedly assumed the risk of any loss that might have resulted
from fires occasioned by the defendant's locomotives if operated
and managed with ordinary care. But he cannot be held to have
assumed the risk of any damage that might result from the unlawful
negligence acts of the defendant. Nobody is bound to anticipate and
defend himself against the possible negligence of another. Rather he
has a right to assume that the other will use the care of the ordinary
prudent man. (Philadelphia and Reading Railroad
Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the proximate and only
cause of the damage that occurred was the negligent act of the
defendant in causing this fire. The circumstance that Remigio
Rodrigueza's house was partly on the property of the defendant
company and therefore in dangerous proximity to passing
locomotives was an antecedent condition that may in fact have
made the disaster possible, but that circumstance cannot be
imputed to him as contributory negligence destructive of his right of
action, because, first, that condition was not created by himself;
secondly, because his house remained on this ground by the
toleration, and therefore with the consent of the Railroad Company;
and thirdly, because even supposing the house to be improperly
there, this fact would not justify the defendant in negligently
destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U.
S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345,
350.)lawphil.net
The circumstance that the defendant company, upon planting its
line near Remigio Rodrigueza's house, had requested or directed
him to remove it, did not convert his occupancy into a trespass, or
impose upon him any additional responsibility over and above what
the law itself imposes in such situation. In this connection it must be
remembered that the company could at any time have removed said
house in the exercise of the power of eminent domain, but it elected
not to do so.
Questions similar to that now before us have been under the
consideration of American courts many times, and their decisions
are found to be uniformly favorable to recovery where the property
destroyed has been placed in whole or in part on the right of way of
the railroad company with its express or implied consent. (L. R.
Martin Timber Co. vs. Great Northern Railway Co., 123 Minn., 423;
Ann. Cas., 1915A, p. 496, note; Burroughs vs. Housatonic R.R. Co., 15
Conn., 124; 38 Am. Dec., 64; 74; Southern Ry. Co. vs. Patterson, 105
Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff is apparently
stronger where the company constructs its line in proximity to a
house already built and fails to condemn it and remove it from its
right of way.
From what has been said it is apparent that the judgment appealed
from is in all respect in conformity with the law, and the same is
accordingly affirmed, with costs. So ordered.

G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT
COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other
injuries, instituted by David Taylor, a minor, by his father, his nearest
relative.
The defendant is a foreign corporation engaged in the operation of a
street railway and an electric light system in the city of Manila. Its
power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor.
The power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the
injuries complained of, 15 years of age, the son of a mechanical
engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel
Claparols, about 12 years of age, crossed the footbridge to the Isla
del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a
miniature engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's
premises. The visit was made on a Sunday afternoon, and it does not
appear that they saw or spoke to anyone after leaving the power
house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling
the defendant's coal, they walked across the open space in the
neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty
or thirty brass fulminating caps scattered on the ground. These caps
are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means
of which it may be discharged by the use of electricity. They are
intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take
them, the boys picked up all they could find, hung them on stick, of
which each took end, and carried them home. After crossing the
footbridge, they met a little girl named Jessie Adrian, less than 9
years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust
the ends of the wires into an electric light socket and obtained no
result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they
opened one of the caps with a knife, and finding that it was filled
with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion
followed, causing more or less serious injuries to all three. Jessie,
who when the boys proposed putting a match to the contents of the
cap, became frightened and started to run away, received a slight
cut in the neck. Manuel had his hand burned and wounded, and
David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to
the necessitate its removal by the surgeons who were called in to
care for his wounds.
The evidence does definitely and conclusively disclose how the caps
came to be on the defendant's premises, nor how long they had
been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as
those found by the boys were used in sinking a well at the power
plant near the place where the caps were found; and it also appears
that at or about the time when these caps were found, similarly caps
were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to
the boys who picked them up to have been lying for a considerable
time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and walking
about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that
children in their play sometimes crossed the foot bridge to the
islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where
the caps were found. There is evidence that any effort ever was
made to forbid these children from visiting the defendant company's
premises, although it must be assumed that the company or its
employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as
a cabin boy on one of the interisland transports. Later he took up
work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued in
that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller
and more mature both mentally and physically than most boys of
fifteen.
The facts set out in the foregoing statement are to our mind fully
and conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact which
are seriously disputed are plaintiff's allegations that the caps which
were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its
possession and control, and that the company or some of its
employees left them exposed on its premises at the point where
they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his
proof. We think, however, that plaintiff's evidence is sufficient to
sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were
used, more or less extensively, on the McKinley extension of the
defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the
accident; that not far from the place where the caps were found the
company has a storehouse for the materials, supplies and so forth,
used by it in its operations as a street railway and a purveyor of
electric light; and that the place, in the neighborhood of which the
caps were found, was being used by the company as a sort of
dumping ground for ashes and cinders. Fulminating caps or
detonators for the discharge by electricity of blasting charges by
dynamite are not articles in common use by the average citizen, and
under all the circumstances, and in the absence of all evidence to
the contrary, we think that the discovery of twenty or thirty of these
caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant
company was either the owner of the caps in question or had the
caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were
willfully and knowingly thrown by the company or its employees at
the spot where they were found, with the expectation that they
would be buried out of the sight by the ashes which it was engaged
in dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the
evidence is sufficient to sustain a finding that the company or some
of its employees either willfully or through an oversight left them
exposed at a point on its premises which the general public,
including children at play, where not prohibited from visiting, and
over which the company knew or ought to have known that young
boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative
value of the facts on which these conclusions are based by
intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by
contractors. It was conclusively proven, however, that while the
workman employed in blasting the well was regularly employed by J.
G. White and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control of one of
defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done
by independent contractors. Only one witness testified upon this
point, and while he stated that he understood that a part of this
work was done by contract, he could not say so of his own
knowledge, and knew nothing of the terms and conditions of the
alleged contract, or of the relations of the alleged contractor to the
defendant company. The fact having been proven that detonating
caps were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that the
company should have introduced the necessary evidence to support
its contention if it wished to avoid the not unreasonable inference
that it was the owner of the material used in these operations and
that it was responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been intrusted
to independent contractors as to whose acts the maxim respondent
superior should not be applied. If the company did not in fact own or
make use of caps such as those found on its premises, as intimated
by counsel, it was a very simple matter for it to prove that fact, and
in the absence of such proof we think that the other evidence in the
record sufficiently establishes the contrary, and justifies the court in
drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by
the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his
decision in plaintiff's favor, upon the provisions of article 1089 of the
Civil Code read together with articles 1902, 1903, and 1908 of that
code.
ART. 1089 Obligations are created by law, by contracts, by quasi-
contracts, and illicit acts and omissions or by those in which any kind
of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair
the damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for
the damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally
liable for damages caused by their employees in the service of the
branches in which the latter may be employed or on account of their
duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for
with due diligence, and for kindling of explosive substances which
may not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly
upon his contention that the facts proven at the trial do not
established the liability of the defendant company under the
provisions of these articles, and since we agree with this view of the
case, it is not necessary for us to consider the various questions as to
form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which
would, perhaps, be involved in a decision affirming the judgment of
the court below.
We agree with counsel for appellant that under the Civil Code, as
under the generally accepted doctrine in the United States, the
plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or
some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and
the damage.
These proposition are, of course, elementary, and do not admit of
discussion, the real difficulty arising in the application of these
principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in
an appropriate place; but it is equally clear that plaintiff would not
have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and strolled
around thereon without the express permission of the defendant,
and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a
match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth
and inexperience, his entry upon defendant company's premises,
and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held to have
contributed in any wise to the accident, which should be deemed to
be the direct result of defendant's negligence in leaving the caps
exposed at the place where they were found by the plaintiff, and
this latter the proximate cause of the accident which occasioned the
injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the
doctrine laid down in many of the courts of last resort in the United
States in the cases known as the "Torpedo" and "Turntable" cases,
and the cases based thereon.
In a typical cases, the question involved has been whether a railroad
company is liable for an injury received by an infant of tender years,
who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the
railroad company knew, or had good reason to suppose, children
would be likely to come, and there found explosive signal torpedoes
left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or
where such infant found upon the premises a dangerous machine,
such as a turntable, left in such condition as to make it probable that
children in playing with it would be exposed to accident or injury
therefrom and where the infant did in fact suffer injury in playing
with such machine.
In these, and in great variety of similar cases, the great weight of
authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657),
wherein the principal question was whether a railroad company was
liable for in injury received by an infant while upon its premises,
from idle curiosity, or for purposes of amusement, if such injury was,
under circumstances, attributable to the negligence of the
company), the principles on which these cases turn are that "while a
railroad company is not bound to the same degree of care in regard
to mere strangers who are unlawfully upon its premises that it owes
to passengers conveyed by it, it is not exempt from responsibility to
such strangers for injuries arising from its negligence or from its
tortious acts;" and that "the conduct of an infant of tender years is
not to be judged by the same rule which governs that of adult. While
it is the general rule in regard to an adult that to entitle him to
recover damages for an injury resulting from the fault or negligence
of another he must himself have been free from fault, such is not
the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and
this is to be determined in each case by the circumstances of the
case."
The doctrine of the case of Railroad Company vs. Stout was
vigorously controverted and sharply criticized in several state courts,
and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the
doctrine of the Turntable cases, especially that laid down in Railroad
Company vs. Stout, in a very able decision wherein it held, in the
language of the syllabus: (1) That the owner of the land is not liable
to trespassers thereon for injuries sustained by them, not due to his
wanton or willful acts; (2) that no exception to this rule exists in
favor of children who are injured by dangerous machinery naturally
calculated to attract them to the premises; (3) that an invitation or
license to cross the premises of another can not be predicated on
the mere fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and adults
as to the circumstances that will warrant the inference of an
invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs.
Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in
the United States, citing and approving the doctrine laid down in
England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36),
lay down the rule in these cases in accord with that announced in
the Railroad Company vs. Stout (supra), and the Supreme Court of
the United States, in a unanimous opinion delivered by Justice
Harlan in the case of Union Pacific Railway Co. vs. McDonal and
reconsidered the doctrine laid down in Railroad Co. vs. Stout, and
after an exhaustive and critical analysis and review of many of the
adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs.
Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the
facts were as follows: The plaintiff, a boy 12 years of age, out of
curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or
invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence
around it or anything to give warning of its dangerous condition,
although defendant knew or had reason the interest or curiosity of
passers-by. On these facts the court held that the plaintiff could not
be regarded as a mere trespasser, for whose safety and protection
while on the premises in question, against the unseen danger
referred to, the defendant was under no obligation to make
provision.
We quote at length from the discussion by the court of the
application of the principles involved to the facts in that case,
because what is said there is strikingly applicable in the case at bar,
and would seem to dispose of defendant's contention that, the
plaintiff in this case being a trespasser, the defendant company
owed him no duty, and in no case could be held liable for injuries
which would not have resulted but for the entry of plaintiff on
defendant's premises.
We adhere to the principles announced in Railroad Co. vs.
Stout (supra). Applied to the case now before us, they require us to
hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot
building. It could have forbidden all persons from coming to its coal
mine for purposes merely of curiosity and pleasure. But it did not do
so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach
to the mine was by a narrow path skirting its slack pit, close to its
depot building, at which the people of the village, old and young,
would often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in the
immediate vicinity of the slack pit. The slightest regard for the safety
of these children would have suggested that they were in danger
from being so near a pit, beneath the surface of which was
concealed (except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall and be
burned to death. Under all the circumstances, the railroad company
ought not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a
trespasser, to whom it owed no duty, or for whose protection it was
under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a
highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be
attracted by their instinct into the traps, and in consequence of such
act his neighbor's dogs be so attracted and thereby injured, an
action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal
into the trap by means of his instinct which he can not resist, and
putting him there by manual force?" What difference, in reason we
may observe in this case, is there between an express license to the
children of this village to visit the defendant's coal mine, in the
vicinity of its slack pile, and an implied license, resulting from the
habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure?
Referring it the case of Townsend vs. Wathen, Judge Thompson, in
his work on the Law of Negligence, volume 1, page 305, note, well
says: "It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with stinking
meat, so that his neighbor's dog attracted by his natural instinct,
might run into it and be killed, and which would exempt him from
liability for the consequence of leaving exposed and unguarded on
his land a dangerous machine, so that his neighbor's child attracted
to it and tempted to intermeddle with it by instincts equally strong,
might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that
(p. 515):
Children, wherever they go, must be expected to act upon childlike
instincts and impulses; and others who are chargeable with a duty of
care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they
in their immature judgment might naturally suppose they were at
liberty to handle or play with, they should expect that liberty to be
taken.
And the same eminent jurist in his treatise or torts, alluding to the
doctrine of implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf
of others. Thus leaving a tempting thing for children to play with
exposed, where they would be likely to gather for that purpose, may
be equivalent to an invitation to them to make use of it; and,
perhaps, if one were to throw away upon his premises, near the
common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to
its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union
Pacific Railroad Co. vs. McDonald (supra) is not less cogent and
convincing in this jurisdiction than in that wherein those cases
originated. Children here are actuated by similar childish instincts
and impulses. Drawn by curiosity and impelled by the restless spirit
of youth, boys here as well as there will usually be found whenever
the public is permitted to congregate. The movement of machinery,
and indeed anything which arouses the attention of the young and
inquiring mind, will draw them to the neighborhood as inevitably as
does the magnet draw the iron which comes within the range of its
magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public
are expressly or impliedly permitted to enter or upon which the
owner knows or ought to know children are likely to roam about for
pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be
heard to say that because the child has entered upon his premises
without his express permission he is a trespasser to whom the
owner owes no duty or obligation whatever. The owner's failure to
take reasonable precautions to prevent the child from entering his
premises at a place where he knows or ought to know that children
are accustomed to roam about of to which their childish instincts
and impulses are likely to attract them is at least equivalent to an
implied license to enter, and where the child does enter under such
conditions the owner's failure to take reasonable precautions to
guard the child against injury from unknown or unseen dangers,
placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its
part than that it had entered on the premises of a stranger without
his express invitation or permission. To hold otherwise would be
expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land
upon which they might naturally and reasonably be expected to
enter.
This conclusion is founded on reason, justice, and necessity, and
neither is contention that a man has a right to do what will with his
own property or that children should be kept under the care of their
parents or guardians, so as to prevent their entering on the premises
of others is of sufficient weight to put in doubt. In this jurisdiction as
well as in the United States all private property is acquired and held
under the tacit condition that it shall not be so used as to injure the
equal rights and interests of the community (see U. S. vs.
Toribio,1 No. 5060, decided January 26, 1910), and except as to
infants of very tender years it would be absurd and unreasonable in
a community organized as is that in which we lived to hold that
parents or guardian are guilty of negligence or imprudence in every
case wherein they permit growing boys and girls to leave the
parental roof unattended, even if in the event of accident to the
child the negligence of the parent could in any event be imputed to
the child so as to deprive it a right to recover in such cases — a point
which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission would
not have relieved defendant from responsibility for injuries incurred
there by plaintiff, without other fault on his part, if such injury were
attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which
therefore was not, properly speaking, "attributable to the
negligence of the defendant," and, on the other hand, we are
satisfied that plaintiffs action in cutting open the detonating cap and
putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff,
and that the defendant, therefore is not civilly responsible for the
injuries thus incurred.Plaintiff contends, upon the authority of the
Turntable and Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of the
defendant in leaving the caps exposed on its premises and the
explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not
agree with this proposition, although we accept the doctrine of the
Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As
was said in case of Railroad Co. vs. Stout (supra), "While it is the
general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the
rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only,
and this is to be determined in each case by the circumstances of the
case." As we think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases, no fault
which would relieve defendant of responsibility for injuries resulting
from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's
uninclosed premises without express permission or invitation' but it
is wholly different question whether such youth can be said to have
been free from fault when he willfully and deliberately cut open the
detonating cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this
point, which must be determined by "the particular circumstances of
this case," the doctrine laid down in the Turntable and Torpedo
cases lends us no direct aid, although it is worthy of observation that
in all of the "Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in whose favor
judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.In
the case at bar, plaintiff at the time of the accident was a well-grown
youth of 15, more mature both mentally and physically than the
average boy of his age; he had been to sea as a cabin boy; was able
to earn P2.50 a day as a mechanical draftsman thirty days after the
injury was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with
which he was amusing himself. The series of experiments made by
him in his attempt to produce an explosion, as described by the little
girl who was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his
endeavors brought about by the application of a match to the
contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact
that the little girl, 9 years of age, who was within him at the time
when he put the match to the contents of the cap, became
frightened and ran away.True, he may not have known and probably
did not know the precise nature of the explosion which might be
expected from the ignition of the contents of the cap, and of course
he did not anticipate the resultant injuries which he incurred; but he
well knew that a more or less dangerous explosion might be
expected from his act, and yet he willfully, recklessly, and knowingly
produced the explosion. It would be going far to say that "according
to his maturity and capacity" he exercised such and "care and
caution" as might reasonably be required of him, or that defendant
or anyone else should be held civilly responsible for injuries incurred
by him under such circumstances.The law fixes no arbitrary age at
which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own
acts, so as to make it negligence on his part to fail to exercise due
care and precaution in the commission of such acts; and indeed it
would be impracticable and perhaps impossible so to do, for in the
very nature of things the question of negligence necessarily depends
on the ability of the minor to understand the character of his own
acts and their consequences; and the age at which a minor can be
said to have such ability will necessarily depends of his own acts and
their consequences; and at the age at which a minor can be said to
have such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But
some idea of the presumed capacity of infants under the laws in
force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively
presumed to be capable of exercising certain rights and incurring
certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as
that at bar, except so far as they illustrate the rule that the capacity
of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the
Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of
age will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are
capable of contracting a legal marriage (Civil Code, art. 83; G. O., No.
68, sec. 1).We are satisfied that the plaintiff in this case had
sufficient capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the contents of
the cap; that he was sui juris in the sense that his age and his
experience qualified him to understand and appreciate the necessity
for the exercise of that degree of caution which would have avoided
the injury which resulted from his own deliberate act; and that the
injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it
may be true that these injuries would not have been incurred but for
the negligence act of the defendant in leaving the caps exposed on
its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.The rule of
the Roman law was: Quod quis ex culpa sua damnum sentit, non
intelligitur sentire. (Digest, book 50, tit. 17 rule
203.)The Patidas contain the following provisions:The just thing is
that a man should suffer the damage which comes to him through
his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, Partida 3.)And they even said that when a
man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through
his own acts the grievance should be against himself and not against
another. (Law 2, tit. 7 Partida 2.)And while there does not appear to
be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless,
the interpretation placed upon its provisions by the supreme court
of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case
at bar the right to recover damages from the defendant, in whole or
in part, for the injuries sustained by him.The judgment of the
supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia
Civil, 391), is directly in point. In that case the court said:According
to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence
and the injury there exists the relation of cause and effect; but if the
injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although
such acts or omission were imprudent or unlawful, and much less
when it is shown that the immediate cause of the injury was the
negligence of the injured party himself.The same court, in its
decision of June 12, 1900, said that "the existence of the alleged
fault or negligence is not sufficient without proof that it, and no
other cause, gave rise to the damage."See also judgment of October
21, 1903.To similar effect Scaevola, the learned Spanish writer,
writing under that title in his Jurisprudencia del Codigo Civil (1902
Anuario, p. 455), commenting on the decision of March 7, 1902 of
the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and
effect; but if the damage caused does not arise from the acts or
omissions of a third person, there is no obligation to make good
upon the latter, even though such acts or omissions be imprudent or
illegal, and much less so when it is shown that the immediate cause
of the damage has been the recklessness of the injured party
himself.And again —In accordance with the fundamental principle of
proof, that the burden thereof is upon the plaintiff, it is apparent
that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and
September 27, 1898, have especially supported the principle, the
first setting forth in detail the necessary points of the proof, which
are two: An act or omission on the part of the person who is to be
charged with the liability, and the production of the damage by said
act or omission.This includes, by inference, the establishment of a
relation of cause or effect between the act or omission and the
damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the
damages result immediately and directly from an act performed
culpably and wrongfully; "necessarily presupposing a legal ground
for imputability." (Decision of October 29, 1887.)Negligence is not
presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)(Cf.
decisions of supreme court of Spain of June 12, 1900, and June 23,
1900.)Finally we think the doctrine in this jurisdiction applicable to
the case at bar was definitely settled in this court in the maturely
considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury
cases) was exonerated," on the ground that "the negligence of the
plaintiff was the immediate cause of the casualty" (decisions of the
15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year); none of the cases decided by
the supreme court of Spain "define the effect to be given the
negligence of its causes, though not the principal one, and we are
left to seek the theory of the civil law in the practice of other
countries;" and in such cases we declared that law in this jurisdiction
to require the application of "the principle of proportional
damages," but expressly and definitely denied the right of recovery
when the acts of the injured party were the immediate causes of the
accident.The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident.
The test is simple. Distinction must be made between the accident
and the injury, between the event itself, without which there could
have been no accident, and those acts of the victim not entering into
it, independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the
displacement of the crosspiece or the failure to replace it. This
produces the event giving occasion for damages—that is, the sinking
of the track and the sliding of the iron rails. To this event, the act of
the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself.
Had the crosspiece been out of place wholly or partly through his act
or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as
one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own
injury, he may recover the amount that the defendant responsible
for the event should pay for such injury, less a sum deemed a
suitable equivalent for his own imprudence.We think it is quite clear
that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his
own act in putting a match to the contents of the cap, and that
having "contributed to the principal occurrence, as one of its
determining factors, he can not recover."We have not deemed it
necessary to examine the effect of plaintiff's action in picking up
upon defendant's premises the detonating caps, the property of
defendant, and carrying the relation of cause and effect between
the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff
by the explosion of one of these caps. Under the doctrine of the
Torpedo cases, such action on the part of an infant of very tender
years would have no effect in relieving defendant of responsibility,
but whether in view of the well-known fact admitted in defendant's
brief that "boys are snappers-up of unconsidered trifles," a youth of
the age and maturity of plaintiff should be deemed without fault in
picking up the caps in question under all the circumstances of this
case, we neither discuss nor decide.Twenty days after the date of
this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten
days thereafter let the record be returned to the court wherein it
originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed
without day. So ordered.
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight
negro laborers in the employment of the defendant, was at work
transporting iron rails from a barge in the harbor to the company's
yard near the malecon in Manila. Plaintiff claims that but one hand
car was used in this work. The defendant has proved that there were
two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends
of the rails lay upon two crosspieces or sills secured to the cars, but
without side pieces or guards to prevent them from slipping off.
According to the testimony of the plaintiff, the men were either in
the rear of the car or at its sides. According to that defendant, some
of them were also in front, hauling by a rope. At a certain spot at or
near the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff, breaking
his leg, which was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident
happened through the negligence of the defendant. The detailed
description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded of
tramways of that character, the foundation consisting on land of
blocks or crosspieces of wood, by 8 inches thick and from 8 to 10
feet long laid, on the surface of the ground, upon which at a right
angle rested stringers of the same thickness, but from 24 to 30 feet
in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road
reached the water's edge, the blocks or crosspieces were replaced
with pilling, capped by timbers extending from one side to the other.
The tracks were each about 2 feet wide and the two inside rails of
the parallel tracks about 18 inches apart. It was admitted that there
were no side pieces or guards on the car; that where no ends of the
rails of the track met each other and also where the stringers joined,
there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were
immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie,
which was the immediate occasion of the accident, is not clear in the
evidence, but is found by the trial court and is admitted in the briefs
and in the argument to have been the dislodging of the crosspiece
or piling under the stringer by the water of the bay raised by a
recent typhoon. The superintendent of the company attributed it to
the giving way of the block laid in the sand. No effort was made to
repair the injury at the time of the occurrence. According to
plaintiffs witnesses, a depression of the track, varying from one half
inch to one inch and a half, was therafter apparent to the eye, and a
fellow workman of the plaintiff swears that the day before the
accident he called the attention of McKenna, the foreman, to it and
asked by simply straightening out the crosspiece, resetting the block
under the stringer and renewing the tie, but otherwise leaving the
very same timbers as before. It has not proven that the company
inspected the track after the typhoon or had any proper system of
inspection.
In order to charge the defendant with negligence, it was necessary
to show a breach of duty on its part in failing either to properly
secure the load on iron to vehicles transporting it, or to skillfully
build the tramway or to maintain it in proper condition, or to
vigilantly inspect and repair the roadway as soon as the depression
in it became visible. It is upon the failure of the defendant to repair
the weakened track, after notice of its condition, that the judge
below based his judgment.
This case presents many important matters for our decision, and
first among them is the standard of duty which we shall establish in
our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many
countries to enact designed to put these relations on a fair basis in
the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty
in so applying the general principles of our law as to work out a just
result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be
governed by the provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done
with malice would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without
committing any infraction of regulations, shall cause an injury which,
had malice intervened, would have constituted a crime or
misdemeanor.
And finally by articles 19 and 20, the liability of owners and
employers for the faults of their servants and representatives is
declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action,
that the necessary conclusion from these collated laws is that the
remedy for injuries through negligence lies only in a criminal action
in which the official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him. According to
this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the
tract, and on his prosecution a suitable fine should have been
imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this
subject. Article 1093 of the Civil Code makes obligations arising from
faults or negligence not punished by the law, subject to the
provisions of Chapter 11 of Title XVI. Section 1902 of that chapter
reads:
A person who by an act or omission causes damage to another when
there is fault or negligence shall be obliged to repair the damage so
done.
SEC. 1903. The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for
the damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally
liable for the damages caused by their employees in the service of
the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may
be sufficient to point out that nowhere in our general statutes is the
employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not
punished by the law " and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that
would rob some of these articles of effect, would shut out litigants
their will from the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the
strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though n ever in actual force in
these Islands, was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action, civil and
criminal, might be prosecuted jointly or separately, but while the
penal action was pending the civil was suspended. According to
article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or
been expressly reserved by him for civil proceedings for the future. If
the civil action alone was prosecuted, arising out of a crime that
could be enforced by only on private complaint, the penal action
thereunder should be extinguished. These provisions are in harmony
with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the
citations of these articles suffices to show that the civil liability was
not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided by law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the
inured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of
the civil right.
Under article 20 of the Penal Code the responsibility of an employer
may be regarded as subsidiary in respect of criminal actions against
his employees only while they are process of prosecution, or in so
far as they determinate the existence of the criminal act from which
liability arises, and his obligation under the civil law and its
enforcement in the civil courts is not barred thereby unless by
election of the injured person. Inasmuch as no criminal in question,
the provisions of the Penal Code can not affect this action. This
construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions survived the
laws that fully regulated it or has been abrogated by the American
civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in
this case appears from the briefs before us to have arisen from the
interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of
offenses in articles 568 and 590 of the Penal Code. It has been
shown that the liability of an employer arising out of his relation to
his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles
1092 and 1093. More than this, however, it can not be said to fall
within the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil Code. The
acts to which these articles are applicable are understood to be
those and growing out of preexisting duties of the parties to one
another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of
those duties are subject to articles 1101, 1103, and 1104, of the
same code. A typical application of the distinction may be found in
the consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise
out of the contract of employment, that to the passengers out of the
contract for passage. while that to that injured bystander would
originate in the negligent act itself. This distinction is thus clearly set
forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence,
may be understood in two difference senses; either as culpa,
substantive and independent, which on account of its origin arises in
an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or
as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already
exiting obligation.
Of these two species of culpa the first one mentioned, existing by
itself, may be also considered as a real source of an independent
obligation, and, as chapter 2, title 16 of this book of the code is
devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the
nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these
two species of negligence may be somewhat inexactly described as
contractual and extra-contractual, the letter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation
as the former. This terminology is unreservedly accepted by
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported be decisions of the
supreme court of Spain, among them those of November 20, 1896
(80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not
one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's
Accident Law of January 30, 1900, throws uncertain light on the
relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early
applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners of
industrial enterprises upon articles 1382, 1383, and 1384 of the
Code Napoleon, corresponding in scope to articles 1902 and 1903 of
the Spanish Code, soon yielded to the principle that the true basis is
the contractual obligation of the employer and employee. (See 18
Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in
contracts for employment led to the discovery of a third basis for
liability in an article of he French Code making the possessor of any
object answerable for damage done by it while in his charge. Our
law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor
that of "professional risk" more recently imposed by express
legislation, but rather adopting the interpretation of our Civil Code
above given, find a rule for this case in the contractual obligation.
This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the
employer to provide safe appliances for the use of the employee,
thus closely corresponding to English and American Law. On these
principles it was the duty of the defendant to build and to maintain
its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect
or the other it failed in its duty, otherwise the accident could not
have occurred; consequently the negligence of the defendant is
established.
Another contention of the defense is that the injury resulted to the
plaintiff as a risk incident to his employment and, as such, one
assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly
inspect, it for the employee is not presumed to have stipulated that
the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was
that of a fellow-servant of the injured man. It is not apparent to us
that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the
consequences of an act or omission not his own. Sua cuique culpa
nocet. This doctrine, known as "the fellow-servant, rule," we are not
disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby,
1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting rid
of it; for instance, the New York State legislature of 1906 did away
with it in respect to railroad companies, and had in hand a scheme
for its total abolition. It has never found place in the civil law of
continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630,
and vol. 15, 1895, same title, 804. Also more recent instances in
Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary
principle in its judgment of June 28, 1841, in the case of Reygasse,
and has since adhered to it.
The most controverted question in the case is that of the negligence
of the plaintiff, contributing to the accident, to what extent it
existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued
his work; and
Second. That he walked on the ends of the ties at the side of the car
instead of along the boards, either before or behind it.
As to the first point, the depression in the track night indicate either
a serious or a rival difficulty. There is nothing in the evidence to
show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a
conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been
known to the men who had helped build the road, it was otherwise
with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a
displacement of the underlying timbers. The foreman testified that
he knew the state of the track on the day of the accident and that it
was then in good condition, and one Danridge, a witness for the
defendant, working on the same job, swore that he never noticed
the depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported
in his hearing to the foreman who neither promised nor refused to
repair it. His lack of caution in continuing at his work after noticing
the slight depression of the rail was not of so gross a nature as to
constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial
judge who found as facts that "the plaintiff did not know the cause
of the one rail being lower than then other" and "it does not appear
in this case that the plaintiff knew before the accident occurred that
the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would,
nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De la
Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff,
the judgment below is not so specific. While the judge remarks that
the evidence does not justify the finding that the car was pulled by
means of a rope attached to the front end or to the rails upon it, and
further that the circumstances in evidence make it clear that the
persons necessary to operate the car could not walk upon the plank
between the rails and that, therefore, it was necessary for the
employees moving it to get hold upon it as best they could, there is
no specific finding upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get
hold upon the car. Therefore the findings of the judge below leave
the conduct of the plaintiff in walking along the side of the loaded
car, upon the open ties, over the depressed track, free to our
inquiry.
While the plaintiff and his witnesses swear that not only were they
not forbidden to proceed in this way, but were expressly directed by
the foreman to do so, both the officers of the company and three of
the workmen testify that there was a general prohibition frequently
made known to all the gang against walking by the side of the car,
and the foreman swears that he repeated the prohibition before the
starting of this particular load. On this contradiction of proof we
think that the preponderance is in favor of the defendant's
contention to the extent of the general order being made known to
the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a
proximate, although not as its primary cause. This conclusion
presents sharply the question, What effect is to be given such an act
of contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of damages?
While a few of the American States have adopted to a greater or less
extent the doctrine of comparative negligence, allowing a recovery
by a plaintiff whose own act contributed to his injury, provided his
negligence was slight as compared with that of the defendant, and
some others have accepted the theory of proportional damages,
reducing the award to a plaintiff in proportion to his responsibility
for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any
negligence, however slight, on the part of the person injured which
is one of the causes proximately contributing to his injury, bars his
recovery. (English and American Encyclopedia of law, Titles
"Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page
429) the Supreme Court of the United States thus authoritatively
states the present rule of law:
Although the defendant's' negligence may have been the primary
cause of the injury complained of, yet an action for such injury can
not be maintained if the proximate and immediate cause of the
injury can be traced to the want of ordinary care and caution in the
person injured; subject to this qualification, which has grown up in
recent years (having been first enunciated in Davies vs. Mann, 10 M.
& W., 546) that the contributory negligence of the party injured will
not defeat the action if it be shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the
consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the
defendant was exonerated, but when analyzed they prove to have
been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the
casualty or that the accident was due to casus fortuitus. Of the first
class in the decision of January 26, 1887 (38 Jurisprudencia Criminal,
No. 70), in which a railway employee, standing on a car, was thrown
therefrom and killed by the shock following the backing up of the
engine. It was held that the management of the train and engine
being in conformity with proper rules of the company, showed no
fault on its part.
Of the second class are the decision of the 15th of January, the 19th
of February, and the 7th of March, 1902, stated in Alcubilla's Index
of that year; and of the third class the decision of the 4th of June,
1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of
plaintiff's dam by the logs of the defendant impelled against it by the
Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been
laid, rested on two bases, one, that the defendant was not
negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing
was the determining cause of the accident. It is plain that the train
was doing nothing but what it had a right to do and that the only
fault lay with the injured man. His negligence was not contributory,
it was sole, and was of such an efficient nature that without it no
catastrophe could have happened.
On the other hand, there are many cases reported in which it seems
plain that the plaintiff sustaining damages was not free from
contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the
owner of a building was held liable for not furnishing protection to
workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a
plaintiff which contributed to his injury as one of its causes, though
not the principal one, and we are left to seek the theory of the civil
law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de
cassation held that the carelessness of the victim did not civilly
relieve the person without whose fault the accident could not have
happened, but that the contributory negligence of the injured man
had the effect only of reducing the damages. The same principle was
applied in the case of Recullet, November 10, 1888. and that of
Laugier of the 11th of November, 1896. (Fuzier-Herman,
Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in
Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the
most part the French Civil Law, now embodied in a code following
the Code Napoleon, a practice in accord with that of France is laid
down in many cases collected in the annotations to article 1053 of
the code edited by Beauchamps, 1904. One of these is
Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6,
page 90, in which the court of Kings bench, otherwise known as the
court of appeals, the highest authority in the Dominion of Canada on
points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate
cause of the accident, but entitled him to a reduction of damages.
Other similar cases in the provincial courts have been overruled by
appellate tribunals made up of common law judges drawn from
other provinces, who have preferred to impose uniformally
throughout the Dominion the English theory of contributory
negligence. Such decisions throw no light upon the doctrines of the
civil law. Elsewhere we find this practice embodied in legislation; for
instance, section 2 of article 2398 of the Code of Portugal reads as
follows:
If in the case of damage there was fault or negligence on the part of
the person injured or in the part of some one else, the
indemnification shall be reduced in the first case, and in the second
case it shall be appropriated in proportion to such fault or
negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim
who is partly changeable with the accident shall stand his damages
in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person
principally responsible. The principle of proportional damages
appears to be also adopted in article 51 of the Swiss Code. Even in
the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have
been disposed of not on the ground of contradictor negligence, but
on that of equal loss, the fault of the one part being offset against
that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally
divided, a decree is entered in favor of the vessel sustaining the
greater loss against the other for the excess of her damages over
one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other
jurisdictions. The Spanish Code of Commerce, article 827, makes
each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls
for short of a recognition of the principle of contributory negligence
as understood in American Law, with which, indeed, it has little in
common. This is a plain from other articles of the same code; for
instance, article 829, referring to articles 826, 827, and 828, which
provides: "In the cases above mentioned the civil action of the
owner against the person liable for the damage is reserved, as well
as the criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable
with respects of the faults of the parties, appears to have grown out
the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible
standard as a safeguard against too ready symphaty for the injured.
It was assumed that an exact measure of several concurring faults
was unattainable.
The reason why, in cases of mutual concurring negligence, neither
party can maintain an action against the other, is, not the wrong of
the one is set off against the wrong of the other; it that the law can
not measure how much of the damage suffered is attributable to the
plaintiff's own fault. If he were allowed to recover, it might be that
he would obtain from the other party compensation for hiss own
misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of
damages. The law has no scales to determine in such cases whose
wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American
courts to review to relax the vigor of the rule by freely exercising the
power of setting aside verdicts deemed excessive, through the
device of granting new trials, unless reduced damages are stipulated
for, amounting to a partial revision of damages by the courts. It
appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted
with greater nicety to the merits of the litigants through the practice
of offsetting their respective responsibilities. In the civil law system
the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in
other countries under the stress and counter stress of novel
schemers of legislation, we find the theory of damages laid down in
the judgment the most consistent with the history and the principals
of our law in these Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident.
The test is simple. Distinction must be between the accident and the
injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this
produced the event giving occasion for damages — that is, the
shinking of the track and the sliding of the iron rails. To this event,
the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came
to himself. Had the crosspiece been out of place wholly or partly
thorough his act of omission of duty, the last would have been one
of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover.
Where, in conjunction with the occurrence, he contributes only to
his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial
court, fixing the damage incurred by the plaintiff at 5,000 pesos, the
equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his
negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with cost of both
instances, and ten days hereafter let the case be remanded to the
court below for proper action. So ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.

G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La
Union absolving the defendant from liability the plaintiff has
appealed.
The occurrence which gave rise to the institution of this action took
place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in question
the plaintiff was riding on his pony over said bridge. Before he had
gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten
or twelve miles per hour. As the defendant neared the bridge he saw
a horseman on it and blew his horn to give warning of his approach.
He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on
horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the
warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the bridge instead
of going to the left. He says that the reason he did this was that he
thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width
of 4.80 meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of the road for
the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the automobile to stop.
Seeing that the pony was apparently quiet, the defendant, instead of
veering to the right while yet some distance away or slowing down,
continued to approach directly toward the horse without diminution
of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape
hitting the horse alongside of the railing where it as then standing;
but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the
bridge with its head toward the railing. In so doing, it as struck on
the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that
when the accident occurred the free space where the pony stood
between the automobile and the railing of the bridge was probably
less than one and one half meters. As a result of its injuries the
horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for
several days.
The question presented for decision is whether or not the defendant
in maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to assume that
the horse and the rider would pass over to the proper side; but as he
moved toward the center of the bridge it was demonstrated to his
eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in
front of the moving vehicle. In the nature of things this change of
situation occurred while the automobile was yet some distance
away; and from this moment it was not longer within the power of
the plaintiff to escape being run down by going to a place of greater
safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing this, the
defendant ran straight on until he was almost upon the horse. He
was, we think, deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent
man in a given situation must of course be always determined in the
light of human experience and in view of the facts involved in the
particular case. Abstract speculations cannot here be of much value
but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by ignoring of the suggestion born of
this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or guarding
against its consequences.
Applying this test to the conduct of the defendant in the present
case we think that negligence is clearly established. A prudent man,
placed in the position of the defendant, would in our opinion, have
recognized that the course which he was pursuing was fraught with
risk, and would therefore have foreseen harm to the horse and the
rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard
against the threatened harm.
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting himself
on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always
is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under
these circumstances the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of
the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7
Phil. Rep., 359) should perhaps be mentioned in this connection.
This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise
have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the
company's yards located not far away. The rails were conveyed upon
cars which were hauled along a narrow track. At certain spot near
the water's edge the track gave way by reason of the combined
effect of the weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in evidence that
the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed
of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of
the car instead of being in front or behind. It was held that while the
defendant was liable to the plaintiff by reason of its negligence in
having failed to keep the track in proper repair nevertheless the
amount of the damages should be reduced on account of the
contributory negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an omission only.
The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before
us, where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to
attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault.
It is enough to say that the negligence of the defendant was in this
case the immediate and determining cause of the accident and that
the antecedent negligence of the plaintiff was a more remote factor
in the case.
A point of minor importance in the case is indicated in the special
defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that
soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries
(lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the
merits in a criminal prosecution for the offense mentioned would be
res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no
effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower
court must be reversed, and judgment is her rendered that the
plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The
other damages claimed by the plaintiff are remote or otherwise of
such character as not to be recoverable. So ordered.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 — at about 1:30 a.m. —
private respondent Leonardo Dionisio was on his way home — he
lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-
and-dinner meeting with his boss, the general manager of a
marketing corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio was driving his
Volkswagen car and had just crossed the intersection of General
Lacuna and General Santos Streets at Bangkal, Makati, not far from
his home, and was proceeding down General Lacuna Street, when
his car headlights (in his allegation) suddenly failed. He switched his
headlights on "bright" and thereupon he saw a Ford dump truck
looming some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a person facing
in the same direction toward which Dionisio's car was proceeding),
facing the oncoming traffic. The dump truck was parked askew (not
parallel to the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There were no
lights nor any so-called "early warning" reflector devices set
anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out early the
following morning, Dionisio claimed that he tried to avoid a collision
by swerving his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision, Dionisio suffered
some physical injuries including some permanent facial scars, a
"nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First
Instance of Pampanga basically claiming that the legal and
proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his
employer Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's injuries was his
own recklessness in driving fast at the time of the accident, while
under the influence of liquor, without his headlights on and without
a curfew pass. Phoenix also sought to establish that it had exercised
due rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against
Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for
hospital bills and the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as
loss of expected income for plaintiff brought about the accident in
controversy and which is the result of the negligence of the
defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as
moral damages for the unexpected and sudden withdrawal of
plaintiff from his lifetime career as a marketing man; mental
anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the
untold sorrows and frustration in life experienced by plaintiff and his
family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as
damages for the wanton disregard of defendants to settle amicably
this case with the plaintiff before the filing of this case in court for a
smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00
due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court.
That court in CA-G.R. No. 65476 affirmed the decision of the trial
court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate
court found the plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was
reduced to P100,000.00, basically because Dionisio had voluntarily
resigned his job such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the accident in
question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence reduced
to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us
on a petition for review.
Both the trial court and the appellate court had made fairly explicit
findings of fact relating to the manner in which the dump truck was
parked along General Lacuna Street on the basis of which both
courts drew the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this negligence was the
proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and proximate cause of the
accident was not the way in which the dump truck had been parked
but rather the reckless way in which Dionisio had driven his car that
night when he smashed into the dump truck. The Intermediate
Appellate Court in its questioned decision casually conceded that
Dionisio was "in some way, negligent" but apparently failed to see
the relevance of Dionisio's negligence and made no further mention
of it. We have examined the record both before the trial court and
the Intermediate Appellate Court and we find that both parties had
placed into the record sufficient evidence on the basis of which the
trial court and the appellate court could have and should have made
findings of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix and
Carbonel contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was merely a
"passive and static condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he sustained. The
need to administer substantial justice as between the parties in this
case, without having to remand it back to the trial court after eleven
years, compels us to address directly the contention put forward by
the petitioners and to examine for ourselves the record pertaining
to Dionisio's alleged negligence which must bear upon the liability,
or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a)
whether or not private respondent Dionisio had a curfew pass valid
and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump
truck; (c) whether Dionisio had purposely turned off his car's
headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision;
and (d) whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no
curfew pass was found on the person of Dionisio immediately after
the accident nor was any found in his car. Phoenix's evidence here
consisted of the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for emergency
treatment immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined them along
with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any
curfew pass during the trial. Instead, he offered the explanation that
his family may have misplaced his curfew pass. He also offered a
certification (dated two years after the accident) issued by one
Major Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which
was said to have authority to issue curfew passes for Pampanga and
Metro Manila. This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This certification did
not, however, specify any pass serial number or date or period of
effectivity of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of a valid
curfew pass during the night of the accident and that the
preponderance of evidence shows that he did not have such a pass
during that night. The relevance of possession or non-possession of
a curfew pass that night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in
order to avoid detection and possibly arrest by the police in the
nearby police station for travelling after the onset of curfew without
a valid curfew pass.
On the second issue — whether or not Dionisio was speeding home
that night — both the trial court and the appellate court were
completely silent.
The defendants in the trial court introduced the testimony of
Patrolman Cuyno who was at the scene of the accident almost
immediately after it occurred, the police station where he was based
being barely 200 meters away. Patrolman Cuyno testified that
people who had gathered at the scene of the accident told him that
Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a
moderate speed at 30 kilometers per hour and had just crossed the
intersection of General Santos and General Lacuna Streets and had
started to accelerate when his headlights failed just before the
collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's
testimony was hearsay and did not fag within any of the recognized
exceptions to the hearsay rule since the facts he testified to were
not acquired by him through official information and had not been
given by the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact that the
testimony of Patrolman Cuyno is admissible not under the official
records exception to the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to the hearsay
rule consists of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to render
inoperative the normal reflective thought processes of the observer
and hence made as a spontaneous reaction to the occurrence or
event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly
smashing into a stationary object in the dead of night is a sufficiently
startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time.
The testimony of Patrolman Cuyno was therefore admissible as part
of the res gestae and should have been considered by the trial court.
Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to
describe quantitatively the precise velocity at winch Dionisio was
travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his
headlights, or whether his headlights accidentally malfunctioned,
just moments before the accident. The Intermediate Appellate Court
expressly found that the headlights of Dionisio's car went off as he
crossed the intersection but was non-committal as to why they did
so. It is the petitioners' contention that Dionisio purposely shut off
his headlights even before he reached the intersection so as not to
be detected by the police in the police precinct which he (being a
resident in the area) knew was not far away from the intersection.
We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio — i.e.,
that he had his headlights on but that, at the crucial moment, these
had in some mysterious if convenient way malfunctioned and gone
off, although he succeeded in switching his lights on again at
"bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated
at the time of the accident. The evidence here consisted of the
testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his
smashed car and brought to the Makati Medical Center in an
unconscious condition. 7This testimony has to be taken in
conjunction with the admission of Dionisio that he had taken "a shot
or two" of liquor before dinner with his boss that night. We do not
believe that this evidence is sufficient to show that Dionisio was so
heavily under the influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless imprudence. 8 There simply is
not enough evidence to show how much liquor he had in fact taken
and the effects of that upon his physical faculties or upon his
judgment or mental alertness. We are also aware that "one shot or
two" of hard liquor may affect different people differently.
The conclusion we draw from the factual circumstances outlined
above is that private respondent Dionisio was negligent the night of
the accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his headlights at
or near the intersection of General Lacuna and General Santos
Streets and thus did not see the dump truck that was parked askew
and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of
the accident and of Dionisio's injuries was the wrongful — or
negligent manner in which the dump truck was parked in other
words, the negligence of petitioner Carbonel. That there was a
reasonable relationship between petitioner Carbonel's negligence
on the one hand and the accident and respondent's injuries on the
other hand, is quite clear. Put in a slightly different manner, the
collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was
merely a "passive and static condition" and that private respondent
Dionisio's negligence was an "efficient intervening cause and that
consequently Dionisio's negligence must be regarded as the legal
and proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various
jurisdictions in the United States but we are unable to persuade
ourselves that these arguments have any validity for our jurisdiction.
We note, firstly, that even in the United States, the distinctions
between "cause" and "condition" which the 'petitioners would have
us adopt have already been "almost entirely discredited." Professors
and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish
between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant has
created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the fact
of causation is concerned, in the sense of necessary antecedents
which have played an important part in producing the result it is
quite impossible to distinguish between active forces and passive
situations, particularly since, as is invariably the case, the latter are
the result of other active forces which have gone before. The
defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of
fire. When a spark ignites the gasoline, the condition has done quite
as much to bring about the fire as the spark; and since that is the
very risk which the defendant has created, the defendant will not
escape responsibility. Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable to
another who fans into it a month afterward. "Cause" and "condition"
still find occasional mention in the decisions; but the distinction is
now almost entirely discredited. So far as it has any validity at all, it
must refer to the type of case where the forces set in operation by
the defendant have come to rest in a position of apparent safety,
and some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but
the nature of the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from
being a "passive and static condition" was rather an indispensable
and efficient cause. The collision between the dump truck and the
private respondent's car would in an probability not have occurred
had the dump truck not been parked askew without any warning
lights or reflector devices. The improper parking of the dump truck
created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck
driver must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence and
therefore closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an "intervening
cause" was no more than a foreseeable consequent manner which
the truck driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private respondent Dionisio
and others similarly situated not to impose upon them the very risk
the truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris vinculum of
liability. It is helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which
in ordinary human experience is reasonably to be anticipated or one
which the defendant has reason to anticipate under the particular
circumstances, the defendant may be negligence among other
reasons, because of failure to guard against it; or the defendant may
be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind
arising later wig spread it beyond the defendant's own property, and
therefore to take precautions to prevent that event. The person who
leaves the combustible or explosive material exposed in a public
place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with
the defendant's conduct to produce the result and in each case the
defendant's negligence consists in failure to protect the plaintiff
against that very risk.
Obviously the defendant cannot be relieved from liability by the fact
that the risk or a substantial and important part of the risk, to which
the defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this category will
not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate
the usual weather of the vicinity, including all ordinary forces of
nature such as usual wind or rain, or snow or frost or fog or even
lightning; that one who leaves an obstruction on the road or a
railroad track should foresee that a vehicle or a train will run into
it; ...
The risk created by the defendant may include the intervention of the
foreseeable negligence of others. ... [The standard of reasonable
conduct may require the defendant to protect the plaintiff against
'that occasional negligence which is one of the ordinary incidents of
human life, and therefore to be anticipated.' Thus, a defendant who
blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes
liable when the plaintiff is run down by a car, even though the car is
negligently driven; and one who parks an automobile on the
highway without lights at night is not relieved of responsibility when
another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the
injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts (Article 2179,
Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear
chance" doctrine. The theory here of petitioners is that while the
petitioner truck driver was negligent, private respondent Dionisio
had the "last clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that "last clear
chance" must bear his own injuries alone. The last clear chance
doctrine of the common law was imported into our jurisdiction
by Picart vs. Smith 11 but it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code of the
Philippines. The historical function of that doctrine in the common
law was to mitigate the harshness of another common law doctrine
or rule that of contributory negligence. 12 The common law rule of
contributory negligence prevented any recovery at all by a plaintiff
who was also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or omission of
the defendant. 13 The common law notion of last clear chance
permitted courts to grant recovery to a plaintiff who had also been
negligent provided that the defendant had the last clear chance to
avoid the casualty and failed to do so. 14 Accordingly, it is difficult to
see what role, if any, the common law last clear chance doctrine has
to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the
plaintiff, has itself been rejected, as it has been in Article 2179 of the
Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule
in negligence cases in a civil law jurisdiction like ours? We do not
believe so. Under Article 2179, the task of a court, in technical
terms, is to determine whose negligence — the plaintiff's or the
defendant's — was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or
physics, as the petitioners seem to imply by the use of terms like
"last" or "intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's negligent
acts or omissions, is only one of the relevant factors that may be
taken into account. Of more fundamental importance are the nature
of the negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and therefore
his employer) should be absolved from responsibility for his own
prior negligence because the unfortunate plaintiff failed to act with
that increased diligence which had become necessary to avoid the
peril precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to wiping
out the fundamental principle of law that a man must respond for
the forseeable consequences of his own negligent act or omission.
Our law on quasi-delicts seeks to reduce the risks and burdens of
living in society and to allocate them among the members of society.
To accept the petitioners' pro-position must tend to weaken the
very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of
negligence on the part of his employer Phoenix 16 in supervising its
employees properly and adequately. The respondent appellate court
in effect found, correctly in our opinion, that Phoenix was not able
to overcome this presumption of negligence. The circumstance that
Phoenix had allowed its truck driver to bring the dump truck to his
home whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the dump truck is
parked when away from company premises, is an affirmative
showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the
comparative negligence of private respondent Dionisio on one hand
and petitioners Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarity liable therefor to the
former. The award of exemplary damages and attorney's fees and
costs shall be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We see no
sufficient reason for disturbing the reduced award of damages made
by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is
modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.
SO ORDERED.
G.R. No. 138060 September 1, 2004
WILLIAM TIU, doing business under the name and style of "D’
Rough Riders," and VIRGILIO TE LAS PIÑASpetitioners,
vs.
PEDRO A. ARRIESGADO, BENJAMIN CONDOR, SERGIO PEDRANO
and PHILIPPINE PHOENIX SURETY AND INSURANCE,
INC., respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the Rules
of Court from the Decision1 of the Court of Appeals in CA-G.R. CV
No. 54354 affirming with modification the Decision2 of the Regional
Trial Court, 7th Judicial Region, Cebu City, Branch 20, in Civil Case
No. CEB-5963 for breach of contract of carriage, damages and
attorney’s fees, and the Resolution dated February 26, 1999 denying
the motion for reconsideration thereof.
The following facts are undisputed:
At about 10:00 p.m. of March 15, 1987, the cargo truck marked
"Condor Hollow Blocks and General Merchandise" bearing plate
number GBP-675 was loaded with firewood in Bogo, Cebu and left
for Cebu City. Upon reaching Sitio Aggies, Poblacion, Compostela,
Cebu, just as the truck passed over a bridge, one of its rear tires
exploded. The driver, Sergio Pedrano, then parked along the right
side of the national highway and removed the damaged tire to have
it vulcanized at a nearby shop, about 700 meters away.3 Pedrano left
his helper, Jose Mitante, Jr. to keep watch over the stalled vehicle,
and instructed the latter to place a spare tire six fathoms
away4 behind the stalled truck to serve as a warning for oncoming
vehicles. The truck’s tail lights were also left on. It was about 12:00
a.m., March 16, 1987.
At about 4:45 a.m., D’ Rough Riders passenger bus with plate
number PBP-724 driven by Virgilio Te Laspiñas was cruising along
the national highway of Sitio Aggies, Poblacion, Compostela, Cebu.
The passenger bus was also bound for Cebu City, and had come from
Maya, Daanbantayan, Cebu. Among its passengers were the Spouses
Pedro A. Arriesgado and Felisa Pepito Arriesgado, who were seated
at the right side of the bus, about three (3) or four (4) places from
the front seat.
As the bus was approaching the bridge, Laspiñas saw the stalled
truck, which was then about 25 meters away.5 He applied the breaks
and tried to swerve to the left to avoid hitting the truck. But it was
too late; the bus rammed into the truck’s left rear. The impact
damaged the right side of the bus and left several passengers
injured. Pedro Arriesgado lost consciousness and suffered a fracture
in his right colles.6 His wife, Felisa, was brought to the Danao City
Hospital. She was later transferred to the Southern Island Medical
Center where she died shortly thereafter.7
Respondent Pedro A. Arriesgado then filed a complaint for breach of
contract of carriage, damages and attorney’s fees before the
Regional Trial Court of Cebu City, Branch 20, against the petitioners,
D’ Rough Riders bus operator William Tiu and his driver, Virgilio Te
Laspiñas on May 27, 1987. The respondent alleged that the
passenger bus in question was cruising at a fast and high speed
along the national road, and that petitioner Laspiñas did not take
precautionary measures to avoid the accident.8 Thus:
6. That the accident resulted to the death of the plaintiff’s wife,
Felisa Pepito Arriesgado, as evidenced by a Certificate of Death, a
xerox copy of which is hereto attached as integral part hereof and
marked as ANNEX – "A", and physical injuries to several of its
passengers, including plaintiff himself who suffered a "COLLES
FRACTURE RIGHT," per Medical Certificate, a xerox copy of which is
hereto attached as integral part hereof and marked as ANNEX – "B"
hereof.
7. That due to the reckless and imprudent driving by defendant
Virgilio Te Laspiñas of the said Rough Riders passenger bus, plaintiff
and his wife, Felisa Pepito Arriesgado, failed to safely reach their
destination which was Cebu City, the proximate cause of which was
defendant-driver’s failure to observe utmost diligence required of a
very cautious person under all circumstances.
8. That defendant William Tiu, being the owner and operator of the
said Rough Riders passenger bus which figured in the said accident,
wherein plaintiff and his wife were riding at the time of the accident,
is therefore directly liable for the breach of contract of carriage for
his failure to transport plaintiff and his wife safely to their place of
destination which was Cebu City, and which failure in his obligation
to transport safely his passengers was due to and in consequence of
his failure to exercise the diligence of a good father of the family in
the selection and supervision of his employees, particularly
defendant-driver Virgilio Te Laspiñas.9
The respondent prayed that judgment be rendered in his favor and
that the petitioners be condemned to pay the following damages:
1). To pay to plaintiff, jointly and severally, the amount
of P30,000.00 for the death and untimely demise of plaintiff’s wife,
Felisa Pepito Arriesgado;
2). To pay to plaintiff, jointly and severally, the amount
of P38,441.50, representing actual expenses incurred by the plaintiff
in connection with the death/burial of plaintiff’s wife;
3). To pay to plaintiff, jointly and severally, the amount of P1,113.80,
representing medical/hospitalization expenses incurred by plaintiff
for the injuries sustained by him;
4). To pay to plaintiff, jointly and severally, the amount
of P50,000.00 for moral damages;
5). To pay to plaintiff, jointly and severally, the amount
of P50,000.00 by way of exemplary damages;
6). To pay to plaintiff, jointly and severally, the amount
of P20,000.00 for attorney’s fees;
7). To pay to plaintiff, jointly and severally, the amount of P5,000.00
for litigation expenses.
PLAINTIFF FURTHER PRAYS FOR SUCH OTHER RELIEFS AND
REMEDIES IN LAW AND EQUITY.10
The petitioners, for their part, filed a Third-Party Complaint11 on
August 21, 1987 against the following: respondent Philippine
Phoenix Surety and Insurance, Inc. (PPSII), petitioner Tiu’s insurer;
respondent Benjamin Condor, the registered owner of the cargo
truck; and respondent Sergio Pedrano, the driver of the truck. They
alleged that petitioner Laspiñas was negotiating the uphill climb
along the national highway of Sitio Aggies, Poblacion, Compostela, in
a moderate and normal speed. It was further alleged that the truck
was parked in a slanted manner, its rear portion almost in the
middle of the highway, and that no early warning device was
displayed. Petitioner Laspiñas promptly applied the brakes and
swerved to the left to avoid hitting the truck head-on, but despite
his efforts to avoid damage to property and physical injuries on the
passengers, the right side portion of the bus hit the cargo truck’s left
rear. The petitioners further alleged, thus:
5. That the cargo truck mentioned in the aforequoted paragraph is
owned and registered in the name of the third-party defendant
Benjamin Condor and was left unattended by its driver Sergio
Pedrano, one of the third-party defendants, at the time of the
incident;
6. That third-party defendant Sergio Pedrano, as driver of the cargo
truck with marked (sic) "Condor Hollow Blocks & General
Merchandise," with Plate No. GBP-675 which was recklessly and
imprudently parked along the national highway of Compostela, Cebu
during the vehicular accident in question, and third-party defendant
Benjamin Condor, as the registered owner of the cargo truck who
failed to exercise due diligence in the selection and supervision of
third-party defendant Sergio Pedrano, are jointly and severally liable
to the third-party plaintiffs for whatever liability that may be
adjudged against said third-party plaintiffs or are directly liable of
(sic) the alleged death of plaintiff’s wife;
7. That in addition to all that are stated above and in the answer
which are intended to show reckless imprudence on the part of the
third-party defendants, the third-party plaintiffs hereby declare that
during the vehicular accident in question, third-party defendant was
clearly violating Section 34, par. (g) of the Land Transportation and
Traffic Code…
… V GRANTING FOR THE SAKE OF ARGUMENT THAT DEFENDANT-
10. That the aforesaid passenger bus, owned and operated by third-
party plaintiff William Tiu, is covered by a common carrier liability
insurance with Certificate of Cover No. 054940 issued by Philippine
Phoenix Surety and Insurance, Inc., Cebu City Branch, in favor of
third-party plaintiff William Tiu which covers the period from July
22, 1986 to July 22, 1987 and that the said insurance coverage was
valid, binding and subsisting during the time of the aforementioned
incident (Annex "A" as part hereof);
11. That after the aforesaid alleged incident, third-party plaintiff
notified third-party defendant Philippine Phoenix Surety and
Insurance, Inc., of the alleged incident hereto mentioned, but to no
avail;
12. That granting, et arguendo et arguendi, if herein third-party
plaintiffs will be adversely adjudged, they stand to pay damages
sought by the plaintiff and therefore could also look up to the
Philippine Phoenix Surety and Insurance, Inc., for contribution,
indemnification and/or reimbursement of any liability or obligation
that they might [be] adjudged per insurance coverage duly entered
into by and between third-party plaintiff William Tiu and third-party
defendant Philippine Phoenix Surety and Insurance, Inc.;…12
The respondent PPSII, for its part, admitted that it had an existing
contract with petitioner Tiu, but averred that it had already
attended to and settled the claims of those who were injured during
the incident.13 It could not accede to the claim of respondent
Arriesgado, as such claim was way beyond the scheduled indemnity
as contained in the contract of insurance.14
After the parties presented their respective evidence, the trial court
ruled in favor of respondent Arriesgado. The dispositive portion of
the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
in favor of plaintiff as against defendant William Tiu ordering the
latter to pay the plaintiff the following amounts:
1 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as moral
damages;
2 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as exemplary
damages;
3 - The sum of THIRTY-EIGHT THOUSAND FOUR HUNDRED FORTY-
ONE PESOS (P38,441.00) as actual damages;
4 - The sum of TWENTY THOUSAND PESOS (P20,000.00) as
attorney’s fees;
5 - The sum of FIVE THOUSAND PESOS (P5,000.00) as costs of suit;
SO ORDERED.15
According to the trial court, there was no dispute that petitioner
William Tiu was engaged in business as a common carrier, in view of
his admission that D’ Rough Rider passenger bus which figured in
the accident was owned by him; that he had been engaged in the
transportation business for 25 years with a sole proprietorship; and
that he owned 34 buses. The trial court ruled that if petitioner
Laspiñas had not been driving at a fast pace, he could have easily
swerved to the left to avoid hitting the truck, thus, averting the
unfortunate incident. It then concluded that petitioner Laspiñas was
negligent.
The trial court also ruled that the absence of an early warning device
near the place where the truck was parked was not sufficient to
impute negligence on the part of respondent Pedrano, since the tail
lights of the truck were fully on, and the vicinity was well lighted by
street lamps.16 It also found that the testimony of petitioner Tiu,
that he based the selection of his driver Laspiñas on efficiency and
in-service training, and that the latter had been so far an efficient
and good driver for the past six years of his employment, was
insufficient to prove that he observed the diligence of a good father
of a family in the selection and supervision of his employees.
After the petitioner’s motion for reconsideration of the said decision
was denied, the petitioners elevated the case to the Court of
Appeals on the following issues:
I WHETHER THIRD PARTY DEFENDANT SERGIO PEDRANO WAS
RECKLESS AND IMPRUDENT WHEN HE PARKED THE CARGO TRUCK
IN AN OBLIQUE MANNER;
II WHETHER THE THIRD PARTY DEFENDANTS ARE JOINTLY AND
SEVERALLY LIABLE DIRECTLY TO PLAINTIFF-APPELLEE OR TO
DEFENDANTS-APPELLANTS FOR WHATEVER LIABILITY THAT MAY BE
ADJUDGED TO THE SAID DEFENDANTS-APPELLANTS;
III WHETHER DEFENDANT-APPELLANT VIRGILIO TE LASPIÑAS WAS
GUILTY OF GROSS NEGLIGENCE;
IV WHETHER DEFENDANT-APPELLANT WILLIAM TIU HAD EXERCISED
THE DUE DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE
SELECTION AND SUPERVISION OF HIS DRIVERS;
APPELLANT WILLIAM TIU IS LIABLE TO PLAINTIFF-APPELLEE,
WHETHER THERE IS LEGAL AND FACTUAL BASIS IN AWARDING
EXCESSIVE MORAL DAMAGES, EX[E]MPLARY DAMAGES, ATTORNEY’S
FEES AND LITIGATION EXPENSES TO PLAINTIFF-APPELLEE;
VI WHETHER THIRD PARTY DEFENDANT PHILIPPINE PHOENIX SURETY
AND INSURANCE, INC. IS LIABLE TO DEFENDANT- APPELLANT
WILLIAM TIU.17
The appellate court rendered judgment affirming the trial court’s
decision with the modification that the awards for moral and
exemplary damages were reduced to P25,000. The dispositive
portion reads:
WHEREFORE, the appealed Decision dated November 6, 1995 is
hereby MODIFIED such that the awards for moral and exemplary
damages are each reduced to P25,000.00 or a total of P50,000.00 for
both. The judgment is AFFIRMED in all other respects.
SO ORDERED.18
According to the appellate court, the action of respondent
Arriesgado was based not on quasi-delict but on breach of contract
of carriage. As a common carrier, it was incumbent upon petitioner
Tiu to prove that extraordinary diligence was observed in ensuring
the safety of passengers during transportation. Since the latter failed
to do so, he should be held liable for respondent Arriesgado’s claim.
The CA also ruled that no evidence was presented against the
respondent PPSII, and as such, it could not be held liable for
respondent Arriesgado’s claim, nor for contribution, indemnification
and/or reimbursement in case the petitioners were adjudged liable.
The petitioners now come to this Court and ascribe the following
errors committed by the appellate court:
I. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
RESPONDENTS BENJAMIN CONDOR AND SERGIO PEDRANO GUILTY
OF NEGLIGENCE AND HENCE, LIABLE TO RESPONDENT PEDRO A.
ARRIESGADO OR TO PETITIONERS FOR WHATEVER LIABILITY THAT
MAY BE ADJUDGED AGAINST THEM.
II. THE HONORABLE COURT OF APPEALS ERRED IN FINDING
PETITIONERS GUILTY OF NEGLIGENCE AND HENCE, LIABLE TO
RESPONDENT PEDRO A. ARRIESGADO.
III. THE HONORABLE COURT OF APPEALS ERRED IN FINDING
PETITIONER WILLIAM TIU LIABLE FOR EXEMPLARY DAMAGES,
ATTORNEY’S FEES AND LITIGATION EXPENSES.
IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING
RESPONDENT PHILIPPINE PHOENIX SURETY AND INSURANCE, INC.
LIABLE TO RESPONDENT PEDRO A. ARRIESGADO OR TO PETITIONER
WILLIAM TIU.19
According to the petitioners, the appellate court erred in failing to
appreciate the absence of an early warning device and/or built-in
reflectors at the front and back of the cargo truck, in clear violation
of Section 34, par. (g) of the Land Transportation and Traffic Code.
They aver that such violation is only a proof of respondent Pedrano’s
negligence, as provided under Article 2185 of the New Civil Code.
They also question the appellate court’s failure to take into account
that the truck was parked in an oblique manner, its rear portion
almost at the center of the road. As such, the proximate cause of the
incident was the gross recklessness and imprudence of respondent
Pedrano, creating the presumption of negligence on the part of
respondent Condor in supervising his employees, which
presumption was not rebutted. The petitioners then contend that
respondents Condor and Pedrano should be held jointly and
severally liable to respondent Arriesgado for the payment of the
latter’s claim.
The petitioners, likewise, aver that expert evidence should have
been presented to prove that petitioner Laspiñas was driving at a
very fast speed, and that the CA could not reach such conclusion by
merely considering the damages on the cargo truck. It was also
pointed out that petitioner Tiu presented evidence that he had
exercised the diligence of a good father of a family in the selection
and supervision of his drivers.
The petitioners further allege that there is no legal and factual basis
to require petitioner Tiu to pay exemplary damages as no evidence
was presented to show that the latter acted in a fraudulent, reckless
and oppressive manner, or that he had an active participation in the
negligent act of petitioner Laspiñas.
Finally, the petitioners contend that respondent PPSII admitted in its
answer that while it had attended to and settled the claims of the
other injured passengers, respondent Arriesgado’s claim remained
unsettled as it was beyond the scheduled indemnity under the
insurance contract. The petitioners argue that said respondent PPSII
should have settled the said claim in accordance with the scheduled
indemnity instead of just denying the same.
On the other hand, respondent Arriesgado argues that two of the
issues raised by the petitioners involved questions of fact, not
reviewable by the Supreme Court: the finding of negligence on the
part of the petitioners and their liability to him; and the award of
exemplary damages, attorney’s fees and litigation expenses in his
favor. Invoking the principle of equity and justice, respondent
Arriesgado pointed out that if there was an error to be reviewed in
the CA decision, it should be geared towards the restoration of the
moral and exemplary damages to P50,000 each, or a total
of P100,000 which was reduced by the Court of Appeals to P25,000
each, or a total of only P50,000.
Respondent Arriesgado also alleged that respondents Condor and
Pedrano, and respondent Phoenix Surety, are parties with whom he
had no contract of carriage, and had no cause of action against. It
was pointed out that only the petitioners needed to be sued, as
driver and operator of the ill-fated bus, on account of their failure to
bring the Arriesgado Spouses to their place of destination as agreed
upon in the contract of carriage, using the utmost diligence of very
cautious persons with due regard for all circumstances.
Respondents Condor and Pedrano point out that, as correctly ruled
by the Court of Appeals, the proximate cause of the unfortunate
incident was the fast speed at which petitioner Laspiñas was driving
the bus owned by petitioner Tiu. According to the respondents, the
allegation that the truck was not equipped with an early warning
device could not in any way have prevented the incident from
happening. It was also pointed out that respondent Condor had
always exercised the due diligence required in the selection and
supervision of his employees, and that he was not a party to the
contract of carriage between the petitioners and respondent
Arriesgado.
Respondent PPSII, for its part, alleges that contrary to the allegation
of petitioner Tiu, it settled all the claims of those injured in
accordance with the insurance contract. It further avers that it did
not deny respondent Arriesgado’s claim, and emphasizes that its
liability should be within the scheduled limits of indemnity under the
said contract. The respondent concludes that while it is true that
insurance contracts are contracts of indemnity, the measure of the
insurer’s liability is determined by the insured’s compliance with the
terms thereof.
The Court’s Ruling
At the outset, it must be stressed that this Court is not a trier of
facts.20 Factual findings of the Court of Appeals are final and may not
be reviewed on appeal by this Court, except when the lower court
and the CA arrived at diverse factual findings.21 The petitioners in
this case assail the finding of both the trial and the appellate courts
that petitioner Laspiñas was driving at a very fast speed before the
bus owned by petitioner Tiu collided with respondent Condor’s
stalled truck. This is clearly one of fact, not reviewable by the Court
in a petition for review under Rule 45.22
On this ground alone, the petition is destined to fail.
However, considering that novel questions of law are likewise
involved, the Court resolves to examine and rule on the merits of
the case.
Petitioner Laspiñas
Was negligent in driving
The Ill-fated bus
In his testimony before the trial court, petitioner Laspiñas claimed
that he was traversing the two-lane road at Compostela, Cebu at a
speed of only forty (40) to fifty (50) kilometers per hour before the
incident occurred.23 He also admitted that he saw the truck which
was parked in an "oblique position" at about 25 meters before
impact,24and tried to avoid hitting it by swerving to the left.
However, even in the absence of expert evidence, the damage
sustained by the truck25 itself supports the finding of both the trial
court and the appellate court, that the D’ Rough Rider bus driven by
petitioner Laspiñas was traveling at a fast pace. Since he saw the
stalled truck at a distance of 25 meters, petitioner Laspiñas had
more than enough time to swerve to his left to avoid hitting it; that
is, if the speed of the bus was only 40 to 50 kilometers per hour as
he claimed. As found by the Court of Appeals, it is easier to believe
that petitioner Laspiñas was driving at a very fast speed, since at
4:45 a.m., the hour of the accident, there were no oncoming
vehicles at the opposite direction. Petitioner Laspiñas could have
swerved to the left lane with proper clearance, and, thus, could have
avoided the truck.26 Instinct, at the very least, would have prompted
him to apply the breaks to avert the impending disaster which he
must have foreseen when he caught sight of the stalled truck. As we
had occasion to reiterate:
A man must use common sense, and exercise due reflection in all his
acts; it is his duty to be cautious, careful and prudent, if not from
instinct, then through fear of recurring punishment. He is
responsible for such results as anyone might foresee and for acts
which no one would have performed except through culpable
abandon. Otherwise, his own person, rights and property, and those
of his fellow beings, would ever be exposed to all manner of danger
and injury.27
We agree with the following findings of the trial court, which were
affirmed by the CA on appeal:
A close study and evaluation of the testimonies and the
documentary proofs submitted by the parties which have direct
bearing on the issue of negligence, this Court as shown by
preponderance of evidence that defendant Virgilio Te Laspiñas failed
to observe extraordinary diligence as a driver of the common carrier
in this case. It is quite hard to accept his version of the incident that
he did not see at a reasonable distance ahead the cargo truck that
was parked when the Rough Rider [Bus] just came out of the bridge
which is on an (sic) [more] elevated position than the place where
the cargo truck was parked. With its headlights fully on, defendant
driver of the Rough Rider was in a vantage position to see the cargo
truck ahead which was parked and he could just easily have avoided
hitting and bumping the same by maneuvering to the left without
hitting the said cargo truck. Besides, it is (sic) shown that there was
still much room or space for the Rough Rider to pass at the left lane
of the said national highway even if the cargo truck had occupied
the entire right lane thereof. It is not true that if the Rough Rider
would proceed to pass through the left lane it would fall into a canal
considering that there was much space for it to pass without hitting
and bumping the cargo truck at the left lane of said national
highway. The records, further, showed that there was no incoming
vehicle at the opposite lane of the national highway which would
have prevented the Rough Rider from not swerving to its left in
order to avoid hitting and bumping the parked cargo truck. But the
evidence showed that the Rough Rider instead of swerving to the
still spacious left lane of the national highway plowed directly into
the parked cargo truck hitting the latter at its rear portion; and thus,
the (sic) causing damages not only to herein plaintiff but to the
cargo truck as well.28
Indeed, petitioner Laspiñas’ negligence in driving the bus is apparent
in the records. By his own admission, he had just passed a bridge
and was traversing the highway of Compostela, Cebu at a speed of
40 to 50 kilometers per hour before the collision occurred. The
maximum speed allowed by law on a bridge is only 30 kilometers per
hour.29And, as correctly pointed out by the trial court, petitioner
Laspiñas also violated Section 35 of the Land Transportation and
Traffic Code, Republic Act No. 4136, as amended:1avvphil.net
Sec. 35. Restriction as to speed. – (a) Any person driving a motor
vehicle on a highway shall drive the same at a careful and prudent
speed, not greater nor less than is reasonable and proper, having
due regard for the traffic, the width of the highway, and or any other
condition then and there existing; and no person shall drive any
motor vehicle upon a highway at such speed as to endanger the life,
limb and property of any person, nor at a speed greater than will
permit him to bring the vehicle to a stop within the assured clear
distance ahead.30
Under Article 2185 of the Civil Code, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating
any traffic regulation.31
Petitioner Tiu failed to
Overcome the presumption
Of negligence against him as
One engaged in the business
Of common carriage
The rules which common carriers should observe as to the safety of
their passengers are set forth in the Civil Code, Articles
1733,32 175533 and 1756.34 In this case, respondent Arriesgado and
his deceased wife contracted with petitioner Tiu, as owner and
operator of D’ Rough Riders bus service, for transportation from
Maya, Daanbantayan, Cebu, to Cebu City for the price of P18.00.35 It
is undisputed that the respondent and his wife were not safely
transported to the destination agreed upon. In actions for breach of
contract, only the existence of such contract, and the fact that the
obligor, in this case the common carrier, failed to transport his
passenger safely to his destination are the matters that need to be
proved.36 This is because under the said contract of carriage, the
petitioners assumed the express obligation to transport the
respondent and his wife to their destination safely and to observe
extraordinary diligence with due regard for all circumstances.37 Any
injury suffered by the passengers in the course thereof is
immediately attributable to the negligence of the carrier. 38 Upon the
happening of the accident, the presumption of negligence at once
arises, and it becomes the duty of a common carrier to prove that he
observed extraordinary diligence in the care of his passengers. 39 It
must be stressed that in requiring the highest possible degree of
diligence from common carriers and in creating a presumption of
negligence against them, the law compels them to curb the
recklessness of their drivers.40
While evidence may be submitted to overcome such presumption of
negligence, it must be shown that the carrier observed the required
extraordinary diligence, which means that the carrier must show the
utmost diligence of very cautious persons as far as human care and
foresight can provide, or that the accident was caused by fortuitous
event.41 As correctly found by the trial court, petitioner Tiu failed to
conclusively rebut such presumption. The negligence of petitioner
Laspiñas as driver of the passenger bus is, thus, binding against
petitioner Tiu, as the owner of the passenger bus engaged as a
common carrier.42
The Doctrine of
Last Clear Chance
Is Inapplicable in the
Case at Bar
Contrary to the petitioner’s contention, the principle of last clear
chance is inapplicable in the instant case, as it only applies in a suit
between the owners and drivers of two 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 and its owner on the ground that the
other driver was likewise guilty of negligence.43 The common law
notion of last clear chance permitted courts to grant recovery to a
plaintiff who has also been negligent provided that the defendant
had the last clear chance to avoid the casualty and failed to do so.
Accordingly, it is difficult to see what role, if any, the common law of
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.44
Thus, petitioner Tiu cannot escape liability for the death of
respondent Arriesgado’s wife due to the negligence of petitioner
Laspiñas, his employee, on this score.
Respondents Pedrano and
Condor were likewise
Negligent
In Phoenix Construction, Inc. v. Intermediate Appellate
Court,45 where therein respondent Dionisio sustained injuries when
his vehicle rammed against a dump truck parked askew, the Court
ruled that the improper parking of a dump truck without any
warning lights or reflector devices created an unreasonable risk for
anyone driving within the vicinity, and for having created such risk,
the truck driver must be held responsible. In ruling against the
petitioner therein, the Court elucidated, thus:
… 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 consequence of the risk created by the
negligent manner in 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 that 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. …
…
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."…46
In this case, both the trial and the appellate courts failed to consider
that respondent Pedrano was also negligent in leaving the truck
parked askew without any warning lights or reflector devices to alert
oncoming vehicles, and that such failure created the presumption of
negligence on the part of his employer, respondent Condor, in
supervising his employees properly and adequately. As we ruled in
Poblete v. Fabros:47
It is such a firmly established principle, as to have virtually formed
part of the law itself, that the negligence of the employee gives rise
to the presumption of negligence on the part of the employer. This
is the presumed negligence in the selection and supervision of
employee. The theory of presumed negligence, in contrast with the
American doctrine of respondeat superior, where the negligence of
the employee is conclusively presumed to be the negligence of the
employer, is clearly deducible from the last paragraph of Article
2180 of the Civil Code which provides that the responsibility therein
mentioned shall cease if the employers prove that they observed all
the diligence of a good father of a family to prevent damages. …48
The petitioners were correct in invoking respondent Pedrano’s
failure to observe Article IV, Section 34(g) of the Rep. Act No. 4136,
which provides:1avvphil.net
(g) Lights when parked or disabled. – Appropriate parking lights or
flares visible one hundred meters away shall be displayed at a
corner of the vehicle whenever such vehicle is parked on highways Third party defendant Philippine Phoenix Surety and Insurance, Inc.
or in places that are not well-lighted or is placed in such manner as hereby reiterates and incorporates by way of reference the
to endanger passing traffic. preceding paragraphs and further states THAT:-
The manner in which the truck was parked clearly endangered 8. It has attended to the claims of Vincent Canales, Asuncion
oncoming traffic on both sides, considering that the tire blowout Batiancila and Neptali Palces who sustained injuries during the
which stalled the truck in the first place occurred in the wee hours of incident in question. In fact, it settled financially their claims per
the morning. The Court can only now surmise that the unfortunate vouchers duly signed by them and they duly executed Affidavit[s] of
incident could have been averted had respondent Condor, the Desistance to that effect, xerox copies of which are hereto attached
owner of the truck, equipped the said vehicle with lights, flares, or, as Annexes 1, 2, 3, 4, 5, and 6 respectively;
at the very least, an early warning device.49 Hence, we cannot 9. With respect to the claim of plaintiff, herein answering third party
subscribe to respondents Condor and Pedrano’s claim that they defendant through its authorized insurance adjuster attended to
should be absolved from liability because, as found by the trial and said claim. In fact, there were negotiations to that effect. Only that it
appellate courts, the proximate cause of the collision was the fast cannot accede to the demand of said claimant considering that the
speed at which petitioner Laspiñas drove the bus. To accept this claim was way beyond the scheduled indemnity as per contract
proposition would be to come too close to wiping out the entered into with third party plaintiff William Tiu and third party
fundamental principle of law that a man must respond for the defendant (Philippine Phoenix Surety and Insurance, Inc.). Third
foreseeable consequences of his own negligent act or omission. party Plaintiff William Tiu knew all along the limitation as earlier
Indeed, our law on quasi-delicts seeks to reduce the risks and stated, he being an old hand in the transportation business;55…
burdens of living in society and to allocate them among its Considering the admissions made by respondent PPSII, the existence
members. To accept this proposition would be to weaken the very of the insurance contract and the salient terms thereof cannot be
bonds of society.50 dispatched. It must be noted that after filing its answer, respondent
The Liability of PPSII no longer objected to the presentation of evidence by
Respondent PPSII respondent Arriesgado and the insured petitioner Tiu. Even in its
as Insurer Memorandum56 before the Court, respondent PPSII admitted the
The trial court in this case did not rule on the liability of respondent existence of the contract, but averred as follows:
PPSII, while the appellate court ruled that, as no evidence was Petitioner Tiu is insisting that PPSII is liable to him for contribution,
presented against it, the insurance company is not liable. indemnification and/or reimbursement. This has no basis under the
A perusal of the records will show that when the petitioners filed the contract. Under the contract, PPSII will pay all sums necessary to
Third-Party Complaint against respondent PPSII, they failed to attach discharge liability of the insured subject to the limits of liability but
a copy of the terms of the insurance contract itself. Only Certificate not to exceed the limits of liability as so stated in the contract. Also,
of Cover No. 05494051 issued in favor of "Mr. William Tiu, Lahug, it is stated in the contract that in the event of accident involving
Cebu City" signed by Cosme H. Boniel was appended to the third- indemnity to more than one person, the limits of liability shall not
party complaint. The date of issuance, July 22, 1986, the period of exceed the aggregate amount so specified by law to all persons to
insurance, from July 22, 1986 to July 22, 1987, as well as the be indemnified.57
following items, were also indicated therein: As can be gleaned from the Certificate of Cover, such insurance
contract was issued pursuant to the Compulsory Motor Vehicle
SCHEDULED VEHICLE Liability Insurance Law. It was expressly provided therein that the
limit of the insurer’s liability for each person was P12,000, while the
MOD MAKE TYPE OF COLOR BLT FILE
limit per accident was pegged at P50,000. An insurer in an indemnity
EL Isuzu BODY blue NO.
contract for third party liability is directly liable to the injured party
Forward Bus mixed
up to the extent specified in the agreement but it cannot be held
solidarily liable beyond that amount.58 The respondent PPSII could
PLAT SERIAL/CH MOTOR AUTHORI UNLADE
not then just deny petitioner Tiu’s claim; it should have paid P12,000
E ASSIS NO. NO. ZED N
for the death of Felisa Arriesgado,59 and respondent Arriesgado’s
NO. SER450- 677836 CAPACITY WEIGHT
hospitalization expenses of P1,113.80, which the trial court found to
PBP- 1584124 50 6 Cyls.
have been duly supported by receipts. The total amount of the
724 Kgs.
claims, even when added to that of the other injured passengers
which the respondent PPSII claimed to have settled,60 would not
SECTION 1/11 *LIMITS OF LIABILITY PREMIU
exceed the P50,000 limit under the insurance agreement.
P50,000.00 MS
Indeed, the nature of Compulsory Motor Vehicle Liability Insurance
A. THIRD PARTY PAID
is such that it is primarily intended to provide compensation for the
LIABILITY P540.00
52 death or bodily injuries suffered by innocent third parties or
B. PASSENGER Per Per passengers as a result of the negligent operation and use of motor
LIABILITY Person Accident vehicles. The victims and/or their dependents are assured of
P12,000 P50,000 immediate financial assistance, regardless of the financial capacity of
.00 motor vehicle owners.61 As the Court, speaking through Associate
Justice Leonardo A. Quisumbing, explained in Government Service
In its Answer53 to the Third-Party Complaint, the respondent PPSII Insurance System v. Court of Appeals:62
admitted the existence of the contract of insurance, in view of its However, although the victim may proceed directly against the
failure to specifically deny the same as required under then Section insurer for indemnity, the third party liability is only up to the extent
8(a), Rule 8 of the Rules of Court,54 which reads: of the insurance policy and those required by law. While it is true
Sec. 8. How to contest genuineness of such documents. When an that where the insurance contract provides for indemnity against
action or defense is founded upon a written instrument copied in or liability to third persons, and such persons can directly sue the
attached to the corresponding pleading as provided in the preceding insurer, the direct liability of the insurer under indemnity contracts
section, the genuineness and due execution of the instrument shall against third party liability does not mean that the insurer can be
be deemed admitted unless the adverse party, under oath, held liable in solidum with the insured and/or the other parties
specifically denies them, and sets forth what he claims to be the found at fault. For the liability of the insurer is based on contract;
facts; but the requirement of an oath does not apply when the that of the insured carrier or vehicle owner is based on tort. …
adverse party does not appear to be a party to the instrument or Obviously, the insurer could be held liable only up to the extent of
when compliance with an order for inspection of the original what was provided for by the contract of insurance, in accordance
instrument is refused. with the CMVLI law. At the time of the incident, the schedule of
In fact, respondent PPSII did not dispute the existence of such indemnities for death and bodily injuries, professional fees and
contract, and admitted that it was liable thereon. It claimed, other charges payable under a CMVLI coverage was provided for
however, that it had attended to and settled the claims of those under the Insurance Memorandum Circular (IMC) No. 5-78 which
injured during the incident, and set up the following as special was approved on November 10, 1978. As therein provided, the
affirmative defenses: maximum indemnity for death was twelve thousand (P12,000.00)
pesos per victim. The schedules for medical expenses were also
provided by said IMC, specifically in paragraphs (C) to (G).63
Damages to
Awarded
The trial court correctly awarded moral damages in the amount
of P50,000 in favor of respondent Arriesgado. The award of
exemplary damages by way of example or correction of the public
good,64 is likewise in order. As the Court ratiocinated in Kapalaran
Bus Line v. Coronado:65
…While the immediate beneficiaries of the standard of extraordinary
diligence are, of course, the passengers and owners of cargo carried
by a common carrier, they are not the only persons that the law
seeks to benefit. For if common carriers carefully observed the
statutory standard of extraordinary diligence in respect of their own
passengers, they cannot help but simultaneously benefit pedestrians
and the passengers of other vehicles who are equally entitled to the
safe and convenient use of our roads and highways. The law seeks to
stop and prevent the slaughter and maiming of people (whether
passengers or not) on our highways and buses, the very size and
power of which seem to inflame the minds of their drivers. Article
2231 of the Civil Code explicitly authorizes the imposition of
exemplary damages in cases of quasi-delicts "if the defendant acted
with gross negligence."…66
The respondent Pedro A. Arriesgado, as the surviving spouse and
heir of Felisa Arriesgado, is entitled to indemnity in the amount
of P50,000.00.67
The petitioners, as well as the respondents Benjamin Condor and
Sergio Pedrano are jointly and severally liable for said amount,
conformably with the following pronouncement of the Court in
Fabre, Jr. vs. Court of Appeals:68
The same rule of liability was applied in situations where the
negligence of the driver of the bus on which plaintiff was riding
concurred with the negligence of a third party who was the driver of
another vehicle, thus causing an accident. In Anuran v. Buño,
Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court,
and Metro Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle and the driver
of the vehicle were jointly and severally held liable to the injured
passenger or the latter’s heirs. The basis of this allocation of liability
was explained in Viluan v. Court of Appeals, thus:
"Nor should it make difference that the liability of petitioner [bus
owner] springs from contract while that of respondents [owner and
driver of other vehicle] arises from quasi-delict. As early as 1913, we
already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the negligence of the driver of the bus
on which he was riding and of the driver of another vehicle, the
drivers as well as the owners of the two vehicles are jointly and
severally liable for damages. Some members of the Court, though,
are of the view that under the circumstances they are liable on
quasi-delict."69
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY
GRANTED. The Decision of the Court of Appeals
is AFFIRMED with MODIFICATIONS:
(1) Respondent Philippine Phoenix Surety and Insurance, Inc. and
petitioner William Tiu are ORDERED to pay, jointly and severally,
respondent Pedro A. Arriesgado the total amount of P13,113.80;
(2) The petitioners and the respondents Benjamin Condor and Sergio
Pedrano are ORDERED to pay, jointly and severally, respondent
Pedro A. Arriesgado P50,000.00 as indemnity; P26,441.50 as actual
damages; P50,000.00 as moral damages; P50,000.00 as exemplary
damages; and P20,000.00 as attorney’s fees.
SO ORDERED.
be
G.R. No. 153076 June 21, 2007
LAPANDAY AGRICULTURAL and DEVELOPMENT CORPORATION
(LADECO), HENRY BERENGUEL, and APOLONIO R.
DEOCAMPO, petitioners,
vs.
MICHAEL RAYMOND ANGALA, respondent.
DECISION
CARPIO, J.:
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.
Respondent filed an action for Quasi-Delict, Damages, and
Attorney’s Fees against LADECO, its administrative officer Henry
Berenguel4 (Berenguel) and Deocampo. Respondent alleged that his
pick-up was slowing down to about 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
In its 3 March 1995 Decision,7 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 the collision. Since Deocampo was driving the rear vehicle, he had
Deocampo was negligent. The Court of Appeals applied the doctrine full control of the situation since he was in a position to observe the
of last clear chance and ruled that Deocampo had the responsibility vehicle in front of him.17 Deocampo had the responsibility of
of avoiding the pick-up. avoiding bumping the vehicle in front of him.18 A U-turn is done at a
The Court of Appeals also sustained the solidary liability of LADECO much slower speed to avoid skidding and overturning, compared to
and Deocampo. The Court of Appeals ruled that under Article 2180 running straight ahead.19 Deocampo could have avoided the vehicle
of the Civil Code, the negligence of the driver is presumed to be the if he was not driving very fast while following the pick-up.
negligence of the owner of the vehicle. Deocampo was not only driving fast, he also admitted that he did
The dispositive portion of the Court of Appeals’ Decision reads: not step on the brakes even upon seeing the pick-up. He only
WHEREFORE, premises considered, the appeal is DISMISSED for lack stepped on the brakes after the collision.
of merit, and the assailed Decision of the Court a quo in Civil Case Petitioners are Solidarily Liable
No. 22067-93 is AFFIRMED in toto. Costs against defendants- LADECO alleges that it should not be held jointly and severally liable
appellants. with Deocampo because it exercised due diligence in the supervision
SO ORDERED.11 and selection of its employees. Aside from this statement, LADECO
Petitioners filed a motion for reconsideration. In its 11 March 2002 did not proffer any proof to show how it exercised due diligence in
Resolution, the Court of Appeals denied the motion for lack of merit. the supervision and selection of its employees. LADECO did not
Hence, the petition before this Court. show its policy in hiring its drivers, or the manner in which it
The Issues supervised its drivers. LADECO failed to substantiate its allegation
The issues before the Court are the following: that it exercised due diligence in the supervision and selection of its
1. Whether the provisions of Section 45(b) of Republic Act No. employees.
413612 (RA 4136) and Article 2185 of the Civil Code apply to this Hence, we hold LADECO solidarily liable with Deocampo.
case; and Respondent is Entitled to Moral Damages
2. Whether respondent is entitled to the damages awarded. We sustain the award of moral damages. Moral damages are
The Ruling of this Court awarded to allow a plaintiff to obtain means, diversion, or
The petition is partly meritorious. amusement that will serve to alleviate the moral suffering he has
Both Drivers are Negligent undergone due to the defendant’s culpable action.20 The trial court
Both the trial court and the Court of Appeals found that Deocampo found that respondent, who was on board the pick-up when the
was at fault because he was driving very fast prior to the collision. collision took place, suffered shock, serious anxiety, and fright when
The Court of Appeals sustained the trial court’s finding that the crewcab bumped his pick-up. We sustain the trial court and the
Deocampo was running more than the normal cruising speed. Both Court of Appeals in ruling that respondent sufficiently showed that
the trial court and the Court of Appeals noted that the crewcab he suffered shock, serious anxiety, and fright which entitle him to
stopped 21 meters away from the point of impact. Deocampo moral damages.
admitted that he stepped on the brakes only after the collision. Both the trial court and the Court of Appeals failed to give any
Petitioners allege that Borres did not take the proper lane before justification for the award of attorney’s fees. Awards of attorney’s
executing the U-turn. Petitioners allege that Borres violated Section fees must be based on findings of fact and of law and stated in the
45(b) of RA 4136 and it was his recklessness that was the proximate decision of the trial court.21 Further, no premium should be placed
cause of the accident. on the right to litigate.22 Hence, we delete the award of attorney’s
Section 45(b) of RA 4136 states: fees.
Sec. 45. Turning at intersections. x x x WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March
(b) The driver of a vehicle intending to turn to the left shall approach 2002 Resolution of the Court of Appeals in CA-G.R. CV No. 51134
such intersection in the lane for traffic to the right of and nearest to with MODIFICATION by deleting the award of attorney’s fees.
the center line of the highway, and, in turning, shall pass to the left SO ORDERED.
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

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.
HERMOSISIMA, JR., J.:
Challenged in this petition for review is the Decision dated February
28, 1991 1 rendered by public respondent Court of Appeals which
affirmed the Decision dated November 15, 1985 of the Regional Trial
Court, National Capital Judicial Region, Branch CLX (160), Pasig City,
in Civil Case No. 27288 entitled "Rommel's Marketing Corporation,
etc. v. Philippine Bank of Commerce, now absorbed by Philippine
Commercial and Industrial Bank."
The case stemmed from a complaint filed by the private respondent
Rommel's Marketing Corporation (RMC for brevity), represented by
its President and General Manager Romeo Lipana, to recover from
the former Philippine Bank of Commerce (PBC for brevity), now
absorbed by the Philippine Commercial International Bank, the sum
of P304,979.74 representing various deposits it had made in its
current account with said bank but which were not credited to its
account, and were instead deposited to the account of one
Bienvenido Cotas, allegedly due to the gross and inexcusable
negligence of the petitioner bank.
RMC maintained two (2) separate current accounts, Current Account
Nos. 53-01980-3 and 53-01748-7, with the Pasig Branch of PBC in
connection with its business of selling appliances.
In the ordinary and usual course of banking operations, current
account deposits are accepted by the bank on the basis of deposit
slips prepared and signed by the depositor, or the latter's agent or
representative, who indicates therein the current account number
to which the deposit is to be credited, the name of the depositor or
current account holder, the date of the deposit, and the amount of
the deposit either in cash or checks. The deposit slip has an upper
portion or stub, which is detached and given to the depositor or his
agent; the lower portion is retained by the bank. In some instances,
however, the deposit slips are prepared in duplicate by the
depositor. The original of the deposit slip is retained by the bank,
while the duplicate copy is returned or given to the depositor.
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims
to have entrusted RMC funds in the form of cash totalling
P304,979.74 to his secretary, Irene Yabut, for the purpose of
depositing said funds in the current accounts of RMC with PBC. It
turned out, however, that these deposits, on all occasions, were not
credited to RMC's account but were instead deposited to Account
No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise
maintains an account with the same bank. During this period,
petitioner bank had, however, been regularly furnishing private
respondent with monthly statements showing its current accounts
balances. Unfortunately, it had never been the practice of Romeo
Lipana to check these monthly statements of account reposing
complete trust and confidence on petitioner bank.
Irene Yabut's modus operandi is far from complicated. She would
accomplish two (2) copies of the deposit slip, an original and a
duplicate. The original showed the name of her husband as
depositor and his current account number. On the duplicate copy
was written the account number of her husband but the name of
the account holder was left blank. PBC's teller, Azucena Mabayad,
would, however, validate and stamp both the original and the
duplicate of these deposit slips retaining only the original copy
despite the lack of information on the duplicate slip. The second
copy was kept by Irene Yabut allegedly for record purposes. After
validation, Yabut would then fill up the name of RMC in the space
left blank in the duplicate copy and change the account number
written thereon, which is that of her husband's, and make it appear
to be RMC's account number, i.e., C.A. No. 53-01980-3. With the
daily remittance records also prepared by Ms. Yabut and submitted
to private respondent RMC together with the validated duplicate
slips with the latter's name and account number, she made her
company believe that all the while the amounts she deposited were
being credited to its account when, in truth and in fact, they were
being deposited by her and credited by the petitioner bank in the
account of Cotas. This went on in a span of more than one (1) year
without private respondent's knowledge.
Upon discovery of the loss of its funds, RMC demanded from
petitioner bank the return of its money, but as its demand went
unheeded, it filed a collection suit before the Regional Trial Court of
Pasig, Branch 160. The trial court found petitioner bank negligent
and ruled as follows:
WHEREFORE, judgment is hereby rendered sentencing defendant
Philippine Bank of Commerce, now absorbed by defendant
Philippine Commercial & Industrial Bank, and defendant Azucena
Mabayad to pay the plaintiff, jointly and severally, and without
prejudice to any criminal action which may be instituted if found
warranted:
1. The sum of P304,979.72, representing plaintiffs lost deposit, plus
interest thereon at the legal rate from the filing of the complaint;
2. A sum equivalent to 14% thereof, as exemplary damages;
3. A sum equivalent to 25% of the total amount due, as and for
attorney's fees; and
4. Costs.
Defendants' counterclaim is hereby dismissed for lack of merit. 2
On appeal, the appellate court affirmed the foregoing decision with
modifications, viz:
WHEREFORE, the decision appealed from herein is MODIFIED in the
sense that the awards of exemplary damages and attorney's fees
specified therein are eliminated and instead, appellants are ordered
to pay plaintiff, in addition to the principal sum of P304,979.74
representing plaintiff's lost deposit plus legal interest thereon from
the filing of the complaint, P25,000.00 attorney's fees and costs in
the lower court as well as in this Court. 3
Hence, this petition anchored on the following grounds:
1) The proximate cause of the loss is the negligence of respondent
Rommel Marketing Corporation and Romeo Lipana in entrusting
cash to a dishonest employee.
2) The failure of respondent Rommel Marketing Corporation to
cross-check the bank's statements of account with its own records
during the entire period of more than one (1) year is the proximate
cause of the commission of subsequent frauds and misappropriation
committed by Ms. Irene Yabut.
3) The duplicate copies of the deposit slips presented by respondent
Rommel Marketing Corporation are falsified and are not proof that
the amounts appearing thereon were deposited to respondent
Rommel Marketing Corporation's account with the bank,
4) The duplicate copies of the deposit slips were used by Ms. Irene
Yabut to cover up her fraudulent acts against respondent Rommel
Marketing Corporation, and not as records of deposits she made
with the bank. 4
The petition has no merit.
Simply put, the main issue posited before us is: What is the
proximate cause of the loss, to the tune of P304,979.74, suffered by
the private respondent RMC — petitioner bank's negligence or that
of private respondent's?
Petitioners submit that the proximate cause of the loss is the
negligence of respondent RMC and Romeo Lipana in entrusting cash
to a dishonest employee in the person of Ms. Irene
Yabut. 5 According to them, it was impossible for the bank to know
that the money deposited by Ms. Irene Yabut belong to RMC;
neither was the bank forewarned by RMC that Yabut will be
depositing cash to its account. Thus, it was impossible for the bank
to know the fraudulent design of Yabut considering that her
husband, Bienvenido Cotas, also maintained an account with the
bank. For the bank to inquire into the ownership of the cash
deposited by Ms. Irene Yabut would be irregular. Otherwise stated,
it was RMC's negligence in entrusting cash to a dishonest employee
which provided Ms. Irene Yabut the opportunity to defraud RMC. 6
Private respondent, on the other hand, maintains that the proximate
cause of the loss was the negligent act of the bank, thru its teller Ms.
Azucena Mabayad, in validating the deposit slips, both original and
duplicate, presented by Ms. Yabut to Ms. Mabayad, notwithstanding
the fact that one of the deposit slips was not completely
accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
There are three elements of a quasi-delict: (a) damages suffered by
the plaintiff; (b) fault or negligence of the defendant, or some other
person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant
and the damages incurred by the plaintiff. 7
In the case at bench, there is no dispute as to the damage suffered
by the private respondent (plaintiff in the trial court) RMC in the
amount of P304,979.74. It is in ascribing fault or negligence which
caused the damage where the parties point to each other as the
culprit.
Negligence is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something
which a prudent and reasonable man would do. The seventy-eight
(78)-year-old, yet still relevant, case of Picart v. Smith, 8 provides the
test by which to determine the existence of negligence in a
particular case which may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
Applying the above test, it appears that the bank's teller, Ms.
Azucena Mabayad, was negligent in validating, officially stamping
and signing all the deposit slips prepared and presented by Ms.
Yabut, despite the glaring fact that the duplicate copy was not
completely accomplished contrary to the self-imposed procedure of
the bank with respect to the proper validation of deposit slips,
original or duplicate, as testified to by Ms. Mabayad herself, thus:Q:
Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs.
Mabayad your important duties and functions?A: I accept current
and savings deposits from depositors and encashments.Q: Now in
the handling of current account deposits of bank clients, could you
tell us the procedure you follow?A: The client or depositor or the
authorized representative prepares a deposit slip by filling up the
deposit slip with the name, the account number, the date, the cash
breakdown, if it is deposited for cash, and the check number, the
amount and then he signs the deposit slip.Q: Now, how many
deposit slips do you normally require in accomplishing current
account deposit, Mrs. Mabayad?
A: The bank requires only one copy of the deposit although some of
our clients prepare the deposit slip in duplicate.
Q: Now in accomplishing current account deposits from your clients,
what do you issue to the depositor to evidence the deposit made?
A: We issue or we give to the clients the depositor's stub as a receipt
of the deposit.Q: And who prepares the deposit slip?
A: The depositor or the authorized representative sir?
Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad,
is it with the deposit slip?
A: The depositor's stub is connected with the deposit slip or the
bank's copy. In a deposit slip, the upper portion is the depositor's
stub and the lower portion is the bank's copy, and you can detach
the bank's copy from the depositor's stub by tearing it sir.
Q: Now what do you do upon presentment of the deposit slip by the
depositor or the depositor's authorized representative?
A: We see to it that the deposit slip 9 is properly accomplished and
then we count the money and then we tally it with the deposit slip
sir.
Q: Now is the depositor's stub which you issued to your clients
validated?A: Yes, sir. 10 [Emphasis ours]Clearly, Ms. Mabayad failed
to observe this very important procedure. The fact that the
duplicate slip was not compulsorily required by the bank in
accepting deposits should not relieve the petitioner bank of
responsibility. The odd circumstance alone that such duplicate copy
lacked one vital information — that of the name of the account
holder — should have already put Ms. Mabayad on guard. Rather
than readily validating the incomplete duplicate copy, she should
have proceeded more cautiously by being more probing as to the
true reason why the name of the account holder in the duplicate slip
was left blank while that in the original was filled up. She should not
have been so naive in accepting hook, line and sinker the too
shallow excuse of Ms. Irene Yabut to the effect that since the
duplicate copy was only for her personal record, she would simply
fill up the blank space later on. 11 A "reasonable man of ordinary
prudence" 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. 13Prescinding
from the above, public respondent Court of Appeals aptly
observed:xxx xxx xxxIt 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. 14It 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, 17defines proximate
cause as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred. . . ." In this
case, absent the act of Ms. Mabayad in negligently validating the
incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would
not have the facility with which to perpetrate her fraudulent scheme
with impunity. Apropos, once again, is the pronouncement made by
the respondent appellate court, to wit:. . . . Even if Yabut had the
fraudulent intention to misappropriate the funds entrusted to her by
plaintiff, she would not have been able to deposit those funds in her
husband's current account, and then make plaintiff believe that it
was in the latter's accounts wherein she had deposited them, had it
not been for bank teller Mabayad's aforesaid gross and reckless
negligence. The latter's negligence was thus the proximate,
immediate and efficient cause that brought about the loss claimed
by plaintiff in this case, and the failure of plaintiff to discover the
same soon enough by failing to scrutinize the monthly statements of
account being sent to it by appellant bank could not have prevented
the fraud and misappropriation which Irene Yabut had already
completed when she deposited plaintiff's money to the account of
her husband instead of to the latter's accounts. 18Furthermore,
under the doctrine of "last clear chance" (also referred to, at times
as "supervening negligence" or as "discovered peril"), petitioner
bank was indeed the culpable party. This doctrine, in essence, states
that where both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof. 19Stated differently, the
rule would also mean that an antecedent negligence of a person
does not preclude the recovery of damages for the supervening
negligence of, or bar a defense against liability sought by another, if
the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence. 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. 21As elucidated in Simex
International (Manila), Inc. v. Court of Appeals, 22 in every case, the
depositor expects the bank to treat his account with the utmost
fidelity, whether such account consists only of a few hundred pesos
or of millions. The bank must record every single transaction
accurately, down to the last centavo, and as promptly as possible.
This has to be done if the account is to reflect at any given time the
amount of money the depositor can dispose as he sees fit, confident
that the bank will deliver it as and to whomever he directs. A
blunder on the part of the bank, such as the failure to duly credit
him his deposits as soon as they are made, can cause the depositor
not a little embarrassment if not financial loss and perhaps even civil
and criminal litigation.The point is that as a business affected with
public interest and because of the nature of its functions, the bank is
under obligation to treat the accounts of its depositors with
meticulous care, always having in mind the fiduciary nature of their
relationship. In the case before us, it is apparent that the petitioner
bank was remiss in that duty and violated that
relationship.Petitioners nevertheless aver that the failure of
respondent RMC to cross-check the bank's statements of account
with its own records during the entire period of more than one (1)
year is the proximate cause of the commission of subsequent frauds
and misappropriation committed by Ms. Irene Yabut.We do not
agree.While it is true that had private respondent checked the
monthly statements of account sent by the petitioner bank to RMC,
the latter would have discovered the loss early on, such cannot be
used by the petitioners to escape liability. This omission on the part
of the private respondent does not change the fact that were it not
for the wanton and reckless negligence of the petitioners' employee
in validating the incomplete duplicate deposit slips presented by Ms.
Irene Yabut, the loss would not have occurred. Considering,
however, that the fraud was committed in a span of more than one
(1) year covering various deposits, common human experience
dictates that the same would not have been possible without any
form of collusion between Ms. Yabut and bank teller Mabayad. Ms.
Mabayad was negligent in the performance of her duties as bank
teller nonetheless. Thus, the petitioners are entitled to claim
reimbursement from her for whatever they shall be ordered to pay
in this case.The foregoing notwithstanding, it cannot be denied that,
indeed, private respondent was likewise negligent in not checking its
monthly statements of account. Had it done so, the company would
have been alerted to the series of frauds being committed against
RMC by its secretary. The damage would definitely not have
ballooned to such an amount if only RMC, particularly Romeo
Lipana, had exercised even a little vigilance in their financial affairs.
This omission by RMC amounts to contributory negligence which
shall mitigate the damages that may be awarded to the private
respondent 23 under Article 2179 of the New Civil Code, to wit:. . .
When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded.In view of this, we believe that the demands
of substantial justice are satisfied by allocating the damage on a 60-
40 ratio. Thus, 40% of the damage awarded by the respondent
appellate court, except the award of P25,000.00 attorney's fees,
shall be borne by private respondent RMC; only the balance of 60%
needs to be paid by the petitioners. The award of attorney's fees
shall be borne exclusively by the petitioners.WHEREFORE, the
decision of the respondent Court of Appeals is modified by reducing
the amount of actual damages private respondent is entitled to by
40%. Petitioners may recover from Ms. Azucena Mabayad the
amount they would pay the private respondent. Private respondent
shall have recourse against Ms. Irene Yabut. In all other respects, the
appellate court's decision is AFFIRMED.Proportionate costs.
SO ORDERED.
G.R. No. 167346 April 2, 2007
SOLIDBANK CORPORATION/ METROPOLITAN BANK AND TRUST
COMPANY,* Petitioner, vs.SPOUSES PETER and SUSAN
TAN, Respondents.Assailed in this petition for review by certiorari
under Rule 45 of the Rules of Court are the decision1 and
resolution2of the Court of Appeals (CA) dated November 26, 2004
and March 1, 2005, respectively, in CA-G.R. CV No. 58618,3 affirming
the decision of the Regional Trial Court (RTC) of Manila, Branch 31.4
On December 2, 1991, respondents’ representative, Remigia Frias,
deposited with petitioner ten checks worth P455,962. Grace Neri,
petitioner’s teller no. 8 in its Juan Luna, Manila Branch, received two
deposit slips for the checks, an original and a duplicate. Neri verified
the checks and their amounts in the deposit slips then returned the
duplicate copy to Frias and kept the original copy for petitioner.
In accordance with the usual practice between petitioner and
respondents, the latter’s passbook was left with petitioner for the
recording of the deposits on the bank’s ledger. Later, respondents
retrieved the passbook and discovered that one of the checks,
Metropolitan Bank and Trust Company (Metrobank) check no.
403954, payable to cash in the sum of P250,000 was not posted
therein.Immediately, respondents notified petitioner of the
problem. Petitioner showed respondent Peter Tan a duplicate
copy of a deposit slip indicating the list of checks deposited by Frias.
But it did not include the missing check. The deposit slip bore the
stamp mark "teller no. 7" instead of "teller no. 8" who previously
received the checks.
Still later, respondent Peter Tan learned from Metrobank (where he
maintained an account) that Metrobank check no. 403954 had
cleared after it was inexplicably deposited by a certain Dolores
Lagsac in Premier Bank in San Pedro, Laguna. Respondents
demanded that petitioner pay the amount of the check but it
refused, hence, they filed a case for collection of a sum of money in
the RTC of Manila, Branch 31.In its answer, petitioner averred that
the deposit slips Frias used when she deposited the checks were
spurious. Petitioner accused respondents of engaging in a scheme to
illegally exact money from it. It added that, contrary to the claim of
respondents, it was "teller no. 7" who received the deposit slips and,
although respondents insisted that Frias deposited ten checks, only
nine checks were actually received by said teller. By way of
counterclaim, it sought payment of P1,000,000 as actual and moral
damages and P500,000 as exemplary damages.After trial, the RTC
found petitioner liable to respondents:Upon examination of the oral,
as well as of the documentary evidence which the parties presented
at the trial in support of their respective contentions, and after
taking into consideration all the circumstances of the case, this
Court believes that the loss of Metrobank Check No. 403954 in the
sum of P250,000.00 was due to the fault of [petitioner]…[It] retained
the original copy of the [deposit slip marked by "Teller No. 7"]. There
is a presumption in law that evidence willfully suppressed would be
adverse if produced.Art. 1173 of the Civil Code states that "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 person of the time and of the place";
and that "if the law or contract does not state the diligence which is
to be observed in the performance, the same as expected of a good
father of a family shall be required."
…For failure to comply with its obligation, [petitioner] is presumed
to have been at fault or to have acted negligently unless they prove
that they observe extraordinary diligence as prescribed in Arts. 1733
and 1735 of the Civil Code (Art. 1756)…
xxx xxx xxxWHEREFORE, premises considered, judgment is hereby
rendered in favor of [respondents], ordering [petitioner] to pay the
sum of P250,000, with legal interest from the time the complaint
[for collection of a sum of money] was filed until
satisfied; P25,000.00 moral damages; P25,000.00 exemplary
damages plus 20% of the amount due [respondents] as and for
attorney’s fees. With costs.
SO ORDERED.5Petitioner appealed to the CA which affirmed in
toto the RTC’s assailed decision:Serious doubt [was] engendered by
the fact that [petitioner] did not present the original of the deposit
slip marked with "Teller No. 7" and on which the entry as to
Metrobank Check No. 403954 did not appear. Even the most cursory
look at the handwriting thereon reveal[ed] a very marked difference
with that in the other deposit slips filled up [by Frias] on December
2, 1991. Said circumstances spawn[ed] the belief thus, the said
deposit slip was prepared by [petitioner] itself to cover up for the
lost check.6
Petitioner filed a motion for reconsideration but the CA dismissed it.
Hence, this appeal.1a\^/phi1.netBefore us, petitioner faults the CA
for upholding the RTC decision. Petitioner argues that: (1) the
findings of the RTC and the CA were not supported by the evidence
and records of the case; (2) the award of damages in favor of
respondents was unwarranted and (3) the application by the RTC, as
affirmed by the CA, of the provisions of the Civil Code on common
carriers to the instant case was erroneous.7The petition must fail.On
the first issue, petitioner contends that the lower courts erred in
finding it negligent for the loss of the subject check. According to
petitioner, the fact that the check was deposited in Premier Bank
affirmed its claim that it did not receive the check.At the outset, the
Court stresses that it accords respect to the factual findings of the
trial court and, unless it overlooked substantial matters that would
alter the outcome of the case, this Court will not disturb such
findings.8We meticulously reviewed the records of the case and
found no reason to deviate from the rule. Moreover, since the CA
affirmed these findings on appeal, they are final and conclusive on
us.9 We therefore sustain the RTC’s and CA’s findings that petitioner
was indeed negligent and responsible for respondents’ lost check.On
the issue of damages, petitioner argues that the moral and
exemplary damages awarded by the lower courts had no legal basis.
For the award of moral damages to stand, petitioner avers that
respondents should have proven the existence of bad faith by clear
and convincing evidence. According to petitioner, simple negligence
cannot be a basis for its award. It insists that the award of exemplary
damages is justified only when the act complained of was done in a
wanton, fraudulent and oppressive manner. 10We disagree.While
petitioner may argue that simple negligence does not warrant the
award of moral damages, it nonetheless cannot insist that that was
all it was guilty of. It refused to produce the original copy of the
deposit slip which could have proven its claim that it did not receive
respondents’ missing check. Thus, in suppressing the best evidence
that could have bolstered its claim and confirmed its innocence, the
presumption now arises that it withheld the same for fraudulent
purposes.11Moreover, in presenting a false deposit slip in its attempt
to feign innocence, petitioner’s bad faith was apparent and
unmistakable. Bad faith imports a dishonest purpose or some moral
obliquity or conscious doing of a wrong that partakes of the nature
of fraud.12As to the award of exemplary damages, the law allows it
by way of example for the public good. The business of banking is
impressed with public interest and great reliance is made on the
bank’s sworn profession of diligence and meticulousness in giving
irreproachable service.13 For petitioner’s failure to carry out its
responsibility and to account for respondents’ lost check, we hold
that the lower courts did not err in awarding exemplary damages to
the latter.On the last issue, we hold that the trial court did not
commit any error.1awphi1.nét A cursory reading of its decision
reveals that it anchored its conclusion that petitioner was negligent
on Article 1173 of the Civil Code.14In citing the different provisions of
the Civil Code on common carriers,15 the trial court merely made
reference to the kind of diligence that petitioner should have
performed under the circumstances. In other words, like a common
carrier whose business is also imbued with public interest, petitioner
should have exercised extraordinary diligence to negate its liability
to respondents.Assuming arguendo that the trial court indeed used
the provisions on common carriers to pin down liability on
petitioner, still we see no reason to strike down the RTC and CA
rulings on this ground alone.In one case, 16 the Court did not hesitate
to apply the doctrine of last clear chance (commonly used in
transportation laws involving common carriers) to a banking
transaction where it adjudged the bank responsible for the
encashment of a forged check. There, we enunciated that the
degree of diligence required of banks is more than that of a good
father of a family in keeping with their responsibility to exercise the
necessary care and prudence in handling their clients’ money.
We find no compelling reason to disallow the application of the
provisions on common carriers to this case if only to emphasize the
fact that banking institutions (like petitioner) have the duty to
exercise the highest degree of diligence when transacting with the
public. By the nature of their business, they are required to observe
the highest standards of integrity and performance, and utmost
assiduousness as well.17WHEREFORE, the assailed decision and
resolution of the Court of Appeals dated November 26, 2004 and
March 1, 2005, respectively, in CA-G.R. CV No. 58618 are
hereby AFFIRMED. Accordingly, the petition is DENIED.
Costs against petitioner.
SO ORDERED.
G.R. No. 188363 February 27, 2013
ALLIED BANKING CORPORATION, Petitioner,
vs.
BANK OF THE PHILIPPINE ISLANDS, Respondents.
DECISION
VILLARAMA, JR., J.:
A collecting bank is guilty of contributory negligence when it
accepted for deposit a post-dated check notwithstanding that said
check had been cleared by the drawee bank which failed to return
the check within the 24-hour reglementary period.
Petitioner Allied Banking Corporation appeals the Decision1 dated
March 19, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 97604
which set aside the Decision2 dated December 13, 2005 of the
Regional Trial Court (RTC) of Makati City, Branch 57 in Civil Case No.
05-418.
The factual antecedents:
On October 10, 2002, a check in the amount of P1,000,000.00
payable to "Mateo Mgt. Group International" (MMGI) was
presented for deposit and accepted at petitioner's Kawit Branch. The
check, post-dated "Oct. 9, 2003", was drawn against the account of
Marciano Silva, Jr. (Silva) with respondent Bank of the Philippine
Islands (BPI) Bel-Air Branch. Upon receipt, petitioner sent the check
for clearing to respondent through the Philippine Clearing House
Corporation (PCHC).3
The check was cleared by respondent and petitioner credited the
account of MMGI with P1,000,000.00. On October 22, 2002, MMGI’s
account was closed and all the funds therein were withdrawn. A
month later, Silva discovered the debit of P1,000,000.00 from his
account. In response to Silva’s complaint, respondent credited his
account with the aforesaid sum.4
On March 21, 2003, respondent returned a photocopy of the check
to petitioner for the reason: "Postdated." Petitioner, however,
refused to accept and sent back to respondent a photocopy of the
check. Thereafter, the check, or more accurately, the Charge Slip,
was tossed several times from petitioner to respondent, and back to
petitioner, until on May 6, 2003, respondent requested the PCHC to
take custody of the check. Acting on the request, PCHC directed the
respondent to deliver the original check and informed it of PCHC’s
authority under Clearing House Operating Memo (CHOM) No. 279
dated 06 September 1996 to split 50/50 the amount of the check
subject of a "Ping-Pong" controversy which shall be implemented
thru the issuance of Debit Adjustment Tickets against the outward
demands of the banks involved. PCHC likewise encouraged
respondent to submit the controversy for resolution thru the PCHC
Arbitration Mechanism.5
However, it was petitioner who filed a complaint6 before the
Arbitration Committee, asserting that respondent should solely bear
the entire face value of the check due to its negligence in failing to
return the check to petitioner within the 24-hour reglementary
period as provided in Section 20.17 of the Clearing House Rules and
Regulations8(CHRR) 2000. Petitioner prayed that respondent be
ordered to reimburse the sum of P500,000.00 with 12% interest per
annum, and to pay attorney’s fees and other arbitration expenses.
In its Answer with Counterclaims,9 respondent charged petitioner
with gross negligence for accepting the post-dated check in the first
place. It contended that petitioner’s admitted negligence was the
sole and proximate cause of the loss.
On December 8, 2004, the Arbitration Committee rendered its
Decision10 in favor of petitioner and against the respondent. First, it
ruled that the situation of the parties does not involve a "Ping-Pong"
controversy since the subject check was neither returned within the
reglementary time or through the PCHC return window, nor coursed
through the clearing facilities of the PCHC.
As to respondent’s direct presentation of a photocopy of the subject
check, it was declared to be without legal basis because Section
21.111 of the CHRR 2000 does not apply to post-dated checks. The
Arbitration Committee further noted that respondent not only failed
to return the check within the 24-hour reglementary period, it also
failed to institute any formal complaint within the contemplation of
Section 20.312 and it appears that respondent was already contented
with the 50-50 split initially implemented by the PCHC. Finding both
parties negligent in the performance of their duties, the Committee
applied the doctrine of "Last Clear Chance" and ruled that the loss
should be shouldered by respondent alone, thus:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of plaintiff Allied Banking Corporation and against defendant
Bank of the Philippine Islands, ordering the latter to pay the former
the following:
(a) The sum of P500,000.00, plus interest thereon at the rate of 12%
per annum counted from the date of filing of the complaint;
(b) Attorney’s fees in the amount of P25,000.00;
(c) The sum of P2,090.00 as and by way of reimbursement of filing
fees, plus the cost of suit.
SO ORDERED.13
Respondent filed a motion for reconsideration14 but it was denied by
the PCHC Board of Directors under Board Resolution No. 10-
200515 dated April 22, 2005. The Board pointed out that what
actually transpired was a "ping-pong" "not of a check but of a
Charge Slip (CS) enclosed in a carrier envelope that went back and
forth through the clearing system in apparent reaction by
[petitioner] to the wrongful return via the PCHC clearing system."
Respondent’s conduct was held as a "gross and unmistakably
deliberate violation" of Section 20.2,16 in relation to Section 20.1(e)
of the CHRR 2000.17
On May 13, 2005, respondent filed a petition for review 18 in the RTC
claiming that PCHC erred in constricting the return of a post-dated
check to Section 20.1, overlooking the fact that Section 20.3 is also
applicable which provision necessarily contemplates defects that are
referred to in Section 20.1 as both sections are subsumed under the
general provision (Section 20) on the return of regular items.
Respondent also argued that assuming it to be liable, the PCHC
erred in holding it solely responsible and should bear entirely the
consequent loss considering that while respondent may have the
"last" opportunity in proximity, it was petitioner which had the
longest, fairest and clearest chance to discover the mistake and
avoid the happening of the loss. Lastly, respondent assailed the
award of attorney’s fees, arguing that PCHC’s perception of "malice"
against it and misuse of the clearing machinery is clearly baseless
and unfounded.
In its Decision dated December 13, 2005, the RTC affirmed with
modification the Arbitration Committee’s decision by deleting the
award of attorney’s fees. The RTC found no merit in respondent’s
stance that through inadvertence it failed to discover that the check
was post-dated and that confirmation within 24 hours is often
"elusive if not outright impossible" because a drawee bank receives
hundreds if not thousands of checks in an ordinary clearing day.
Thus:
Petitioner admitted par. 4 in its Answer with Counterclaim and in its
Memorandum, further adding that upon receipt of the subject check
"through inadvertence", it did not notice that the check was
postdated, hence, petitioner did not return the same to
respondent."
These contradict petitioner’s belated contention that it discovered
the defect only after the lapse of the reglementary period. What the
evidence on record discloses is that petitioner received the check on
October 10, 2002, that it was promptly sent for clearing, that
through inadvertence, it did not notice that the check was
postdated. Petitioner did not even state when it discovered the
defect in the subject check.
Likewise, petitioner’s contention that its discovery of the defect was
a non-issue in view of the admissions made in its Answer is
unavailing. The Court has noted the fact that the PCHC Arbitration
Committee conducted a clarificatory hearing during which petitioner
admitted that its standard operating procedure as regards
confirmation of checks was not followed. No less than petitioner’s
witness admitted that BPI tried to call up the drawer of the check, as
their procedure dictates when it comes to checks in large amounts.
However, having initially failed to contact the drawer, no follow up
calls were made nor other actions taken. Despite these, petitioner
cleared the check. Having admitted making said calls, it is simply
impossible for petitioner to have missed the fact that the check
was postdated.19 (Emphasis supplied)
With the denial of its motion for partial reconsideration, respondent
elevated the case to the CA by filing a petition for review under Rule
42 of the 1997 Rules of Civil Procedure, as amended.
By Decision dated March 19, 2009, the CA set aside the RTC
judgment and ruled for a 60-40 sharing of the loss as it found
petitioner guilty of contributory negligence in accepting what is
clearly a post-dated check. The CA found that petitioner’s failure to
notice the irregularity on the face of the check was a breach of its
duty to the public and a telling sign of its lack of due diligence in
handling checks coursed through it. While the CA conceded that the
drawee bank has a bigger responsibility in the clearing of checks, it
declared that the presenting bank cannot take lightly its obligation
to make sure that only valid checks are introduced into the clearing
system. According to the CA, considerations of public policy and
substantial justice will be served by allocating the damage on a 60-
40 ratio, as it thus decreed:
WHEREFORE, the decision of the Regional Trial Court of Makati City
(Branch 57) dated December 13, 2005 is ANNULLED and SET ASIDE
and judgment is rendered ordering petitioner to pay respondent
Allied Banking Corporation the sum of P100,000.00 plus interest
thereon at the rate of 6% from July 10, 2003, which shall become
12% per annum from finality hereof, until fully paid, aside from
costs.
SO ORDERED.20
Its motion for reconsideration having been denied by the CA,
petitioner is now before the Court seeking a partial reversal of the
CA’s decision and affirmance of the December 13, 2005 Decision of
the RTC.
Essentially, the two issues for resolution are: (1) whether the
doctrine of last clear chance applies in this case; and (2) whether the
60-40 apportionment of loss ordered by the CA was justified.
As well established by the records, both petitioner and respondent
were admittedly negligent in the encashment of a check post-dated
one year from its presentment.
Petitioner argues that the CA should have sustained PCHC’s finding
that despite the antecedent negligence of petitioner in accepting the
postdated check for deposit, respondent, by exercising reasonable
care and prudence, might have avoided injurious consequences had
it not negligently cleared the check in question. It pointed out that in
applying the doctrine of last clear chance, the PCHC cited the case
of Philippine Bank of Commerce v. Court of Appeals21 which ruled
that assuming the bank’s depositor, private respondent, was
negligent in entrusting cash to a dishonest employee, thus providing
the latter with the opportunity to defraud the company, it cannot be
denied that petitioner bank had the last clear opportunity to avert
the injury incurred by its client, simply by faithfully observing their
self-imposed validation procedure.
Petitioner underscores respondent’s failure to observe clearing
house rules and its own standard operating procedure which, the
PCHC said constitute further negligence so much so that respondent
should be solely liable for the loss. Specifically, respondent failed to
return the subject check within the 24-hour reglementary period
under Section 20.1 and to institute any formal complaint within the
contemplation of Section 20.3 of the CHRR 2000. The PCHC likewise
faulted respondent for not making follow-up calls or taking any
other action after it initially attempted, without success, to contact
by telephone the drawer of the check, and clearing the check
despite such lack of confirmation from its depositor in violation of its
own standard procedure for checks involving large amounts.
The doctrine of last clear chance, 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.22The doctrine necessarily assumes negligence
on the part of the defendant and contributory negligence on the
part of the plaintiff, and does not apply except upon that
assumption.23 Stated differently, the antecedent negligence of the
plaintiff does not preclude him from recovering damages caused by
the supervening negligence of the defendant, who had the last fair
chance to prevent the impending harm by the exercise of due
diligence.24Moreover, in situations where the doctrine has been
applied, it was defendant’s failure to exercise such ordinary care,
having the last clear chance to avoid loss or injury, which was the
proximate cause of the occurrence of such loss or injury.25
In this case, the evidence clearly shows that the proximate cause of
the unwarranted encashment of the subject check was the
negligence of respondent who cleared a post-dated check sent to it
thru the PCHC clearing facility without observing its own verification
procedure. As correctly found by the PCHC and upheld by the RTC, if
only respondent exercised ordinary care in the clearing process, it
could have easily noticed the glaring defect upon seeing the date
written on the face of the check "Oct. 9, 2003". Respondent could
have then promptly returned the check and with the check thus
dishonored, petitioner would have not credited the amount thereof
to the payee’s account. Thus, notwithstanding the antecedent
negligence of the petitioner in accepting the post-dated check for
deposit, it can seek reimbursement from respondent the amount
credited to the payee’s account covering the check.
What petitioner omitted to mention is that in the cited case
of Philippine Bank of Commerce v. Court of Appeals,26while the Court
found petitioner bank as the culpable party under the doctrine of
last clear chance since it had, thru its teller, the last opportunity to
avert the injury incurred by its client simply by faithfully observing
its own validation procedure, it nevertheless ruled that the plaintiff
depositor (private respondent) must share in the loss on account of
its contributory negligence. Thus:
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 under Article 2179 of the New Civil Code, to
wit:
"x x x. When the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded."
In view of this, we believe that the demands of substantial justice
are satisfied by allocating the damage on a 60-40 ratio. Thus, 40%
of the damage awarded by the respondent appellate court, except
the award of P25,000.00 attorney’s fees, shall be borne by private
respondent RMC; only the balance of 60% needs to be paid by the
petitioners. The award of attorney’s fees shall be borne exclusively
by the petitioners.27 (Italics in the original; emphasis supplied)
In another earlier case,28 the Court refused to hold petitioner bank
solely liable for the loss notwithstanding the finding that the
proximate cause of the loss was due to its negligence. Since the
employees of private respondent bank were likewise found
negligent, its claim for damages is subject to mitigation by the
courts. Thus:
Both banks were negligent in the selection and supervision of their
employees resulting in the encashment of the forged checks by an
impostor. Both banks were not able to overcome the presumption
of negligence in the selection and supervision of their employees. It
was the gross negligence of the employees of both banks which
resulted in the fraud and the subsequent loss. While it is true that
petitioner BPI’s negligence may have been the proximate cause of
the loss, respondent CBC’s negligence contributed equally to the
success of the impostor in encashing the proceeds of the forged
checks. Under these circumstances, we apply Article 2179 of the
Civil Code to the effect that while respondent CBC may recover its
losses, such losses are subject to mitigation by the courts. x x x
Considering the comparative negligence of the two (2) banks, we
rule that the demands of substantial justice are satisfied by
allocating the loss of P2,413,215.16 and the costs of the arbitration
proceedings in the amount of P7,250.00 and the costs of litigation
on a 60-40 ratio. Conformably with this ruling, no interests and
attorney’s fees can be awarded to either of the parties. 29 (Emphasis
supplied)
Apportionment of damages between parties who are both negligent
was followed in subsequent cases involving banking transactions
notwithstanding the court’s finding that one of them had the last
clear opportunity to avoid the occurrence of the loss.
In Bank of America NT & SA v. Philippine Racing Club,30 the Court
ruled:
In the case at bar, petitioner cannot evade responsibility for the loss
by attributing negligence on the part of respondent because, even if
we concur that the latter was indeed negligent in pre-signing blank
checks, the former had the last clear chance to avoid the loss. To
reiterate, petitioner’s own operations manager admitted that they
could have called up the client for verification or confirmation
before honoring the dubious checks. Verily, petitioner had the final
opportunity to avert the injury that befell the respondent. x x x
Petitioner’s negligence has been undoubtedly established and, thus,
pursuant to Art. 1170 of the NCC, it must suffer the consequence of
said negligence.
In the interest of fairness, however, we believe it is proper to
consider respondent’s own negligence to mitigate petitioner’s
liability.1âwphi1 Article 2179 of the Civil Code provides:
xxxx
Explaining this provision in Lambert v. Heirs of Ray Castillon, the
Court held:
"The underlying precept on contributory negligence is that a plaintiff
who is partly responsible for his own injury should not be entitled to
recover damages in full but must bear the consequences of his own
negligence. The defendant must thus be held liable only for the
damages actually caused by his negligence. xxx xxx xxx"
xxxx
Following established jurisprudential precedents, we believe the
allocation of sixty percent (60%) of the actual damages involved in
this case (represented by the amount of the checks with legal
interest) to petitioner is proper under the premises. Respondent
should, in light of its contributory negligence, bear forty percent
(40%) of its own loss.31 (Emphasis supplied)
In Philippine National Bank v. F.F. Cruz and Co., Inc.,32 the Court
made a similar disposition, thus:
Given the foregoing, we find no reversible error in the findings of
the appellate court that PNB was negligent in the handling of FFCCI’s
combo account, specifically, with respect to PNB’s failure to detect
the forgeries in the subject applications for manager’s check which
could have prevented the loss. x x x PNB failed to meet the high
standard of diligence required by the circumstances to prevent the
fraud. In Philippine Bank of Commerce v. Court of Appeals and The
Consolidated Bank & Trust Corporation v. Court of Appeals, where
the bank’s negligence is the proximate cause of the loss and the
depositor is guilty of contributory negligence, we allocated the
damages between the bank and the depositor on a 60-40 ratio. We
apply the same ruling in this case considering that, as shown above,
PNB’s negligence is the proximate cause of the loss while the issue
as to FFCCI’s contributory negligence has been settled with finality in
G.R. No. 173278. Thus, the appellate court properly adjudged PNB to
bear the greater part of the loss consistent with these rulings.33
"Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls
below the standard to which he is required to conform for his own
protection."34 Admittedly, petitioner’s acceptance of the subject
check for deposit despite the one year postdate written on its face
was a clear violation of established banking regulations and
practices. In such instances, payment should be refused by the
drawee bank and returned through the PCHC within the 24-hour
reglementary period. As aptly observed by the CA, petitioner’s
failure to comply with this basic policy regarding post-dated checks
was "a telling sign of its lack of due diligence in handling checks
coursed through it."35
It bears stressing that "the diligence required of banks is more than
that of a Roman paterfamilias or a good father of a family. The
highest degree of diligence is expected,"36 considering the nature of
the banking business that is imbued with public interest. While it is
true that respondent's liability for its negligent clearing of the check
is greater, petitioner cannot take lightly its own violation of the long-
standing rule against encashment of post-dated checks and the
injurious consequences of allowing such checks into the clearing
system.
Petitioner repeatedly harps on respondent's transgression of
clearing house rules when the latter resorted to direct presentment
way beyond the reglementary period but glosses over its own
negligent act that clearly fell short of the conduct expected of it as a
collecting bank. Petitioner must bear the consequences of its
omission to exercise extraordinary diligence in scrutinizing checks
presented by its depositors.
Assessing the facts and in the light of the cited precedents, the Court
thus finds no error committed by the CA in allocating the resulting
loss from the wrongful encashment of the subject check on a 60-40
ratio.
WHEREFORE, the petition for review on certiorari is DENIED. The
Decision dated March 19, 2009 of the Court of Appeals in CA-G.R. SP
No. 97604 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE
and ELISA PANELO, petitioners,
vs.HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
CRISELDA R. AGUILAR, respondents.DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
the Court of Appeals in C.A. G.R. No. CV 37937 and the
resolution 2 denying their motion for reconsideration. The assailed
decision set aside the 15 January 1992 judgment of the Regional
Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong, Jose
Tiope and Elisa Panelo are the store's branch manager, operations
manager, and supervisor, respectively. Private respondents are
spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at
the 2nd floor of Syvel's Department Store, Makati City. CRISELDA
was signing her credit card slip at the payment and verification
counter when she felt a sudden gust of wind and heard a loud thud.
She looked behind her. She then beheld her daughter ZHIENETH on
the floor, her young body pinned by the bulk of the store's gift-
wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of
the people around in lifting the counter and retrieving ZHIENETH
from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where
she was operated on. The next day ZHIENETH lost her speech and
thereafter communicated with CRISELDA by writing on a magic slate.
The injuries she sustained took their toil on her young body. She
died fourteen (14) days after the accident or on 22 May 1983, on the
hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained.
The provisional medical certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries:
Diagnoses:1. Shock, severe, sec. to intra-abdominal injuries due to
blunt injury2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver3. Rupture, stomach, anterior & posterior
walls4. Complete transection, 4th position, duodenum5. Hematoma,
extensive, retroperitoneal6. Contusion, lungs, severe
CRITICALAfter the burial of their daughter, private respondents
demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses 6 which
they had incurred. Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed as Civil Case
No. 7119 wherein they sought the payment of P157,522.86 for
actual damages, P300,000 for moral damages, P20,000 for
attorney's fees and an unspecified amount for loss of income and
exemplary damages.In their answer with counterclaim, petitioners
denied any liability for the injuries and consequent death of
ZHIENETH. They claimed that CRISELDA was negligent in exercising
care and diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the
counter, triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen years
since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained
that it observed the diligence of a good father of a family in the
selection, supervision and control of its employees. The other
petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint was
malicious for which they suffered besmirched reputation and mental
anguish. They sought the dismissal of the complaint and an award of
moral and exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the evidence
favored petitioners. It ruled that the proximate cause of the fall of
the counter on ZHIENETH was her act of clinging to it. It believed
petitioners' witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of
private respondents' witnesses testified on how the counter fell. The
trial court also held that CRISELDA's negligence contributed to
ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned
that the counter was situated at the end or corner of the 2nd floor
as a precautionary measure hence, it could not be considered as an
attractive nuisance. 8 The counter was higher than ZHIENETH. It has
been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.
Private respondents appealed the decision, attributing as errors of
the trial court its findings that: (1) the proximate cause of the fall of
the counter was ZHIENETH's misbehavior; (2) CRISELDA was
negligent in her care of ZHIENETH; (3) petitioners were not negligent
in the maintenance of the counter; and (4) petitioners were not
liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9)
years is incapable of contributory negligence. And even if ZHIENETH,
at six (6) years old, was already capable of contributory negligence,
still it was physically impossible for her to have propped herself on
the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she
was. Also, the testimony of one of the store's former employees,
Gerardo Gonzales, who accompanied ZHIENETH when she was
brought to the emergency room of the Makati Medical Center belied
petitioners' theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor what she did,
ZHIENETH replied, "[N]othing, I did not come near the counter and
the counter just fell on me." 9 Accordingly, Gonzales' testimony on
ZHIENETH's spontaneous declaration should not only be considered
as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise
moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETH's death, was petitioners' negligence in
failing to institute measures to have the counter permanently
nailed.
On the other hand, petitioners argued that private respondents
raised purely factual issues which could no longer be disturbed. They
explained that ZHIENETH's death while unfortunate and tragic, was
an accident for which neither CRISELDA nor even ZHIENETH could
entirely be held faultless and blameless. Further, petitioners
adverted to the trial court's rejection of Gonzales' testimony as
unworthy of credence.
As to private respondent's claim that the counter should have been
nailed to the ground, petitioners justified that it was not necessary.
The counter had been in existence for several years without any
prior accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for
they had exercised due diligence on the matter. In fact, the criminal
case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a
verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of the upper
portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the
front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter
ignored their concern. The Court of Appeals faulted the petitioners
for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the
defective counter. It was inconsequential that the counter had been
in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven
(7) years old at the time of the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional wrong, then
the six-year old ZHIENETH could not be made to account for a mere
mischief or reckless act. It also absolved CRISELDA of any negligence,
finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the
nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses
of petitioners. It found them biased and prejudiced. It instead gave
credit to the testimony of disinterested witness Gonzales. The Court
of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private
respondents as evidenced by the hospital's statement of
account. 12 It denied an award for funeral expenses for lack of proof
to substantiate the same. Instead, a compensatory damage of
P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court
is SET ASIDE and another one is entered against [petitioners],
ordering them to pay jointly and severally unto [private
respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.Private respondents sought a reconsideration of the
decision but the same was denied in the Court of Appeals'
resolution 14 of 16 July 1997.Petitioners now seek the reversal of the
Court of Appeals' decision and the reinstatement of the judgment of
the trial court. Petitioners primarily argue that the Court of Appeals
erred in disregarding the factual findings and conclusions of the trial
court. They stress that since the action was based on tort, any
finding of negligence on the part of the private respondents would
necessarily negate their claim for damages, where said negligence
was the proximate cause of the injury sustained. The injury in the
instant case was the death of ZHIENETH. The proximate cause was
ZHIENETH's act of clinging to the counter. This act in turn caused the
counter to fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to her
child while inside the store, nullified private respondents' claim for
damages. It is also for these reasons that parents are made
accountable for the damage or injury inflicted on others by their
minor children. Under these circumstances, petitioners could not be
held responsible for the accident that befell ZHIENETH.Petitioners
also assail the credibility of Gonzales who was already separated
from Syvel's at the time he testified; hence, his testimony might
have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent at
any time while inside the store; the findings and conclusions of the
Court of Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment on the
incident while she was in the hospital's emergency room should
receive credence; and finally, ZHIENETH's part of the res
gestae declaration "that she did nothing to cause the heavy
structure to fall on her" should be considered as the correct version
of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of
ZHIENETH was accidental or attributable to negligence; and (2) in
case of a finding of negligence, whether the same was attributable
to private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable
care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not
do. 17 Negligence is "the failure to observe, for the protection of the
interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such
other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means suggested
by common prudence. 19The test in determining the existence of
negligence is enunciated in the landmark case of Plicart v.
Smith, 20 thus: Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is
guilty of negligence. 21We rule that the tragedy which befell
ZHIENETH was no accident and that ZHIENETH's death could only be
attributed to negligence.We quote the testimony of Gerardo
Gonzales who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:Q While at the Makati
Medical Center, did you hear or notice anything while the child was
being treated?
A At the emergency room we were all surrounding the child. And
when the doctor asked the child "what did you do," the child said
"nothing, I did not come near the counter and the counter just fell
on me."Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRANYes, your Honor.
COURTGranted. Intercalate "wala po, hindi po ako lumapit doon.
Basta bumagsak." 22This testimony of Gonzales pertaining to
ZHIENETH's statement formed (and should be admitted as) part of
the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions. 23 All that is required for
their admissibility as part of the res gestae is that they be made or
uttered under the influence of a startling event before the declarant
had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age
and in extreme pain, to have lied to a doctor whom she trusted with
her life. We therefore accord credence to Gonzales' testimony on
the matter, i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and
maintain the structurally unstable gift-wrapping counter proved
their negligence, thus:
Q When you assumed the position as gift wrapper at the second
floor, will you please describe the gift wrapping counter, were you
able to examine?
A Because every morning before I start working I used to clean that
counter and since not nailed and it was only standing on the floor, it
was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the
afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime, since
the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and
since Mr. Maat is fond of putting display decorations on tables, he
even told me that I would put some decorations. But since I told him
that it not [sic] nailed and it is shaky he told me "better inform also
the company about it." And since the company did not do anything
about the counter, so I also did not do anything about the
counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the
testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter
where you were assigned in January 1983?
xxx xxx xxxA That counter assigned to me was when my supervisor
ordered me to carry that counter to another place. I told him that
the counter needs nailing and it has to be nailed because it might
cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second
floor on February 12, 1983, will you please describe that to the
honorable Court?A I told her that the counter wrapper [sic] is really
in good [sic] condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that
the counter was shaky?A She told me "Why do you have to teach
me. You are only my subordinate and you are to teach me?" And she
even got angry at me when I told her that.xxx xxx xxxQ From
February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or
any employee of the management do to that (sic)xxx xxx
xxxWitness:None, sir. They never nailed the counter. They only
nailed the counter after the accident happened. 25 [Emphasis
supplied]Without doubt, petitioner Panelo and another store
supervisor were personally informed of the danger posed by the
unstable counter. Yet, neither initiated any concrete action to
remedy the situation nor ensure the safety of the store's employees
and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably
failed to discharge the due diligence required of a good father of a
family.On the issue of the credibility of Gonzales and Guevarra,
petitioners failed to establish that the former's testimonies were
biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarra's testimonies were blemished by "ill
feelings" against petitioners — since they (Gonzales and Guevarra)
were already separated from the company at the time their
testimonies were offered in court — was but mere speculation and
deserved scant consideration.It is settled that when the issue
concerns the credibility of witnesses, the appellate courts will not as
a general rule disturb the findings of the trial court, which is in a
better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and
observing the deportment of the witnesses. 26 However, the rule
admits of exceptions such as when its evaluation was reached
arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result
of the case. 27 In the instant case, petitioners failed to bring their
claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that
they are incapable of contributory negligence. In his book, 28 former
Judge Cezar S. Sangco stated:In our jurisdiction, a person under nine
years of age is conclusively presumed to have acted without
discernment, and is, on that account, exempt from criminal liability.
The same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen years of
age, unless it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and required
discernment as a condition of liability, either criminal or civil, a child
under nine years of age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of a child over
nine but under fifteen years of age is a rebuttable one, under our
law. The rule, therefore, is that a child under nine years of age must
be conclusively presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners' theory that the counter was stable
and sturdy. For if that was the truth, a frail six-year old could not
have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny
of the evidence 29 on record reveal otherwise, i.e., it was not durable
after all. Shaped like an inverted "L," the counter was heavy, huge,
and its top laden with formica. It protruded towards the customer
waiting area and its base was not secured. 30CRISELDA too, should
be absolved from any contributory negligence. Initially, ZHIENETH
held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when she
signed her credit card slip. At this precise moment, it was reasonable
and usual for CRISELDA to let go of her child. Further, at the time
ZHIENETH was pinned down by the counter, she was just a foot
away from her mother; and the gift-wrapping counter was just four
meters away from CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted to
the doctor who treated her at the hospital that she did not do
anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. 184905 August 28, 2009
LAMBERT S. RAMOS, Petitioner,
vs.
C.O.L. REALTY CORPORATION, Respondent.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether petitioner can be held solidarily
liable with his driver, Rodel Ilustrisimo, to pay respondent C.O.L.
Realty the amount of P51,994.80 as actual damages suffered in a
vehicular collision.
The facts, as found by the appellate court, are as follows:
On or about 10:40 o’clock in the morning of 8 March 2004, along
Katipunan (Avenue), corner Rajah Matanda (Street), Quezon City, a
vehicular accident took place between a Toyota Altis Sedan bearing
Plate Number XDN 210, owned by petitioner C.O.L. Realty
Corporation, and driven by Aquilino Larin ("Aquilino"), and a Ford
Expedition, owned by x x x Lambert Ramos (Ramos) and driven by
Rodel Ilustrisimo ("Rodel"), with Plate Number LSR 917. A passenger
of the sedan, one Estela Maliwat ("Estela") sustained injuries. She
was immediately rushed to the hospital for treatment.
(C.O.L. Realty) averred that its driver, Aquilino, was slowly driving
the Toyota Altis car at a speed of five to ten kilometers per hour
along Rajah Matanda Street and has just crossed the center lane of
Katipunan Avenue when (Ramos’) Ford Espedition violently rammed
against the car’s right rear door and fender. With the force of the
impact, the sedan turned 180 degrees towards the direction where
it came from.
Upon investigation, the Office of the City Prosecutor of Quezon City
found probable cause to indict Rodel, the driver of the Ford
Expedition, for Reckless Imprudence Resulting in Damage to
Property. In the meantime, petitioner demanded from respondent
reimbursement for the expenses incurred in the repair of its car and
the hospitalization of Estela in the aggregate amount of
P103,989.60. The demand fell on deaf ears prompting (C.O.L. Realty)
to file a Complaint for Damages based on quasi-delict before the
Metropolitan Trial Court of Metro Manila (MeTC), Quezon City,
docketed as Civil Case No. 33277, and subsequently raffled to
Branch 42.
As could well be expected, (Ramos) denied liability for damages
insisting that it was the negligence of Aquilino, (C.O.L. Realty’s)
driver, which was the proximate cause of the accident. (Ramos)
maintained that the sedan car crossed Katipunan Avenue from Rajah
Matanda Street despite the concrete barriers placed thereon
prohibiting vehicles to pass through the intersection.
(Ramos) further claimed that he was not in the vehicle when the
mishap occurred. He asserted that he exercised the diligence of a
good father of a family in the selection and supervision of his driver,
Rodel.
Weighing the respective evidence of the parties, the MeTC rendered
the Decision dated 1 March 2006 exculpating (Ramos) from liability,
thus:
"WHEREFORE, the instant case is DISMISSED for lack of merit. The
Counterclaims of the defendant are likewise DISMISSED for lack of
sufficient factual and legal basis.
SO ORDERED."
The aforesaid judgment did not sit well with (C.O.L. Realty) so that
he (sic) appealed the same before the RTC of Quezon City, raffled to
Branch 215, which rendered the assailed Decision dated 5
September 2006, affirming the MeTC’s Decision. (C.O.L. Realty’s)
Motion for Reconsideration met the same fate as it was denied by
the RTC in its Order dated 5 June 2007.1
C.O.L. Realty appealed to the Court of Appeals which affirmed the
view that Aquilino was negligent in crossing Katipunan Avenue from
Rajah Matanda Street since, as per Certification of the Metropolitan
Manila Development Authority (MMDA) dated November 30, 2004,
such act is specifically prohibited. Thus:
This is to certify that as per records found and available in this office
the crossing of vehicles at Katipunan Avenue from Rajah Matanda
Street to Blue Ridge Subdivision, Quezon City has (sic) not allowed
since January 2004 up to the present in view of the ongoing road
construction at the area.2 (Emphasis supplied)
Barricades were precisely placed along the intersection of Katipunan
Avenue and Rajah Matanda Street in order to prevent motorists
from crossing Katipunan Avenue. Nonetheless, Aquilino crossed
Katipunan Avenue through certain portions of the barricade which
were broken, thus violating the MMDA rule.3
However, the Court of Appeals likewise noted that at the time of the
collision, Ramos’ vehicle was moving at high speed in a busy area
that was then the subject of an ongoing construction (the Katipunan
Avenue-Boni Serrano Avenue underpass), then smashed into the
rear door and fender of the passenger’s side of Aquilino’s car,
sending it spinning in a 180-degree turn.4 It therefore found the
driver Rodel guilty of contributory negligence for driving the Ford
Expedition at high speed along a busy intersection.
Thus, on May 28, 2008, the appellate court rendered the assailed
Decision,5 the dispositive portion of which reads, as follows:
WHEREFORE, the Decision dated 5 September 2006 of the Regional
Trial Court of Quezon City, Branch 215 is hereby MODIFIED in that
respondent Lambert Ramos is held solidarily liable with Rodel
Ilustrisimo to pay petitioner C.O.L. Realty Corporation the amount of
P51,994.80 as actual damages. Petitioner C.O.L. Realty Corporation’s
claim for exemplary damages, attorney’s fees and cost of suit are
DISMISSED for lack of merit.
SO ORDERED.
Petitioner filed a Motion for Reconsideration but it was denied.
Hence, the instant petition, which raises the following sole issue:
THE COURT OF APPEALS’ DECISION IS CONTRARY TO LAW AND
JURISPRUDENCE, AND THE EVIDENCE TO SUPPORT AND JUSTIFY THE
SAME IS INSUFFICIENT.
We resolve to GRANT the petition.
There is no doubt in the appellate court’s mind that Aquilino’s
violation of the MMDA prohibition against crossing Katipunan
Avenue from Rajah Matanda Street was the proximate cause of the
accident. Respondent does not dispute this; in its Comment to the
instant petition, it even conceded that petitioner was guilty of mere
contributory negligence.6
Thus, the Court of Appeals acknowledged that:
The Certification dated 30 November 2004 of the Metropolitan
Manila Development Authority (MMDA) evidently disproved (C.O.L.
Realty’s) barefaced assertion that its driver, Aquilino, was not to be
blamed for the accident –
"TO WHOM IT MAY CONCERN:
This is to certify that as per records found and available in this office
the crossing of vehicles at Katipunan Avenue from Rajah Matanda
Street to Blue Ridge Subdivision, Quezon City has (sic) not allowed
since January 2004 up to the present in view of the ongoing road
construction at the area.
This certification is issued upon request of the interested parties for
whatever legal purpose it may serve."
(C.O.L. Realty) admitted that there were barricades along the
intersection of Katipunan Avenue and Rajah Matanda Street. The
barricades were placed thereon to caution drivers not to pass
through the intersecting roads. This prohibition stands even if, as
(C.O.L. Realty) claimed, the "barriers were broken" at that point
creating a small gap through which any vehicle could pass. What is
clear to Us is that Aquilino recklessly ignored these barricades and
drove through it. Without doubt, his negligence is established by the
fact that he violated a traffic regulation. This finds support in Article
2185 of the Civil Code –
"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."
Accordingly, there ought to be no question on (C.O.L. Realty’s)
negligence which resulted in the vehicular mishap.7
However, it also declared Ramos liable vicariously for Rodel’s
contributory negligence in driving the Ford Expedition at high speed
along a busy intersection. On this score, the appellate court made
the following pronouncement:
As a professional driver, Rodel should have known that driving his
vehicle at a high speed in a major thoroughfare which was then
subject of an on-going construction was a perilous act. He had no
regard to (sic) the safety of other vehicles on the road. Because of
the impact of the collision, (Aquilino’s) sedan made a 180-degree
turn as (Ramos’) Ford Expedition careened and smashed into its rear
door and fender. We cannot exculpate Rodel from liability.
Having thus settled the contributory negligence of Rodel, this
created a presumption of negligence on the part of his employer,
(Ramos). For the employer to avoid the solidary liability for a tort
committed by his employee, an employer must rebut the
presumption by presenting adequate and convincing proof that in
the selection and supervision of his employee, he or she exercises
the care and diligence of a good father of a family. Employers must
submit concrete proof, including documentary evidence, that they
complied with everything that was incumbent on them.
(Ramos) feebly attempts to escape vicarious liability by averring that
Rodel was highly recommended when he applied for the position of
family driver by the Social Service Committee of his parish. A certain
Ramon Gomez, a member of the church’s livelihood program,
testified that a background investigation would have to be made
before an applicant is recommended to the parishioners for
employment. (Ramos) supposedly tested Rodel’s driving skills before
accepting him for the job. Rodel has been his driver since 2001, and
except for the mishap in 2004, he has not been involved in any road
accident.
Regrettably, (Ramos’) evidence which consisted mainly of
testimonial evidence remained unsubstantiated and are thus, barren
of significant weight. There is nothing on the records which would
support (Ramos’) bare allegation of Rodel’s 10-year unblemished
driving record. He failed to present convincing proof that he went to
the extent of verifying Rodel’s qualifications, safety record, and
driving history.
So too, (Ramos) did not bother to refute (C.O.L. Realty’s) stance that
his driver was texting with his cellphone while running at a high
speed and that the latter did not slow down albeit he knew that
Katipunan Avenue was then undergoing repairs and that the road
was barricaded with barriers. The presumption juris tantum that
there was negligence in the selection of driver remains unrebutted.
As the employer of Rodel, (Ramos) is solidarily liable for the quasi-
delict committed by the former.1avvphi1
Certainly, in the selection of prospective employees, employers are
required to examine them as to their qualifications, experience and
service records. In the supervision of employees, the employer must
formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for the breach
thereof. These, (Ramos) failed to do.8
Petitioner disagrees, arguing that since Aquilino’s willful disregard of
the MMDA prohibition was the sole proximate cause of the
accident, then respondent alone should suffer the consequences of
the accident and the damages it incurred. He argues:
20. It becomes apparent therefore that the only time a plaintiff, the
respondent herein, can recover damages is if its negligence was only
contributory, and such contributory negligence was the proximate
cause of the accident. It has been clearly established in this case,
however, that respondent’s negligence was not merely contributory,
but the sole proximate cause of the accident.
xxxx
22. As culled from the foregoing, respondent was the sole proximate
cause of the accident. Respondent’s vehicle should not have been in
that position since crossing the said intersection was prohibited.
Were it not for the obvious negligence of respondent’s driver in
crossing the intersection that was prohibited, the accident would
not have happened. The crossing of respondent’s vehicle in a
prohibited intersection unquestionably produced the injury, and
without which the accident would not have occurred. On the other
hand, petitioner’s driver had the right to be where he was at the
time of the mishap. As correctly concluded by the RTC, the
petitioner’s driver could not be expected to slacken his speed while
travelling along said intersection since nobody, in his right mind,
would do the same. Assuming, however, that petitioner’s driver was
indeed guilty of any contributory negligence, such was not the
proximate cause of the accident considering that again, if
respondent’s driver did not cross the prohibited intersection, no
accident would have happened. No imputation of any lack of care on
Ilustrisimo’s could thus be concluded. It is obvious then that
petitioner’s driver was not guilty of any negligence that would make
petitioner vicariously liable for damages.
23. As the sole proximate cause of the accident was respondent’s
own driver, respondent cannot claim damages from petitioner.9
On the other hand, respondent in its Comment merely reiterated
the appellate court’s findings and pronouncements, conceding that
petitioner is guilty of mere contributory negligence, and insisted on
his vicarious liability as Rodel’s employer under Article 2184 of the
Civil Code.
Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this
case, viz:
Article 2179. 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.
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.
If the master is injured by the negligence of a third person and by
the concurring contributory negligence of his own servant or agent,
the latter’s negligence is imputed to his superior and will defeat the
superior’s action against the third person, assuming of course that
the contributory negligence was the proximate cause of the injury of
which complaint is made.10
Applying the foregoing principles of law to the instant case,
Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda
constitutes negligence because it was prohibited by law. Moreover,
it was the proximate cause of the accident, and thus precludes any
recovery for any damages suffered by respondent from the accident.
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is
that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom.11
If Aquilino heeded the MMDA prohibition against crossing Katipunan
Avenue from Rajah Matanda, the accident would not have
happened. This specific untoward event is exactly what the MMDA
prohibition was intended for. Thus, a prudent and intelligent person
who resides within the vicinity where the accident occurred,
Aquilino had reasonable ground to expect that the accident would
be a natural and probable result if he crossed Katipunan Avenue
since such crossing is considered dangerous on account of the busy
nature of the thoroughfare and the ongoing construction of the
Katipunan-Boni Avenue underpass. It was manifest error for the
Court of Appeals to have overlooked the principle embodied in
Article 2179 of the Civil Code, that when the plaintiff’s own
negligence was the immediate and proximate cause of his injury, he
cannot recover damages.
Hence, we find it unnecessary to delve into the issue of Rodel’s
contributory negligence, since it cannot overcome or defeat
Aquilino’s recklessness which is the immediate and proximate cause
of the accident. Rodel’s contributory negligence has relevance only
in the event that Ramos seeks to recover from respondent whatever
damages or injuries he may have suffered as a result; it will have the
effect of mitigating the award of damages in his favor. In other
words, an assertion of contributory negligence in this case would
benefit only the petitioner; it could not eliminate respondent’s
liability for Aquilino’s negligence which is the proximate result of the
accident.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals dated May 28, 2008 in CA-G.R. SP No. 99614 and its
Resolution of October 13, 2008 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Quezon City,
Branch 215 dated September 5, 2006 dismissing for lack of merit
respondent’s complaint for damages is hereby REINSTATED.
SO ORDERED.
G.R. No. L-13715 December 23, 1959
FELIX V. VALENCIA, plaintiff-appellants,
vs.
CEBU PORTLAND CEMENT CO., ET AL., defendants-appellees.
Roberto J. Ignacio and Felix G. Gaudiel for appellant.
Eduardo Taylor, Jr. for appellee Eduardo Taylor.
First Assistant Government Corporate Counsel Simeon M. Gopengco
and Attorney Arturo B. Santos for the other appellees.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of Negros
Occidental, Hon. Jose Teodoro, Sr., presiding, dismissing plaintiff's
complaint on the grounds specified in a motion presented by
defendants. The main grounds are that the cause of action stated in
the complaint is barred by a prior judgment and by the statute of
limitations.
The present case in an offshoot of G.R. No. L-6158 * (March 11,
1954), entitled Cebu Portland Cement Company vs. The Court of
Industrial Relations (CIR) and Philippine Land Air-Sea Labor union
(PLASLU), decided by this Court, affirming a decision of the Court of
Industrial relations holding that the separation of plaintiff herein,
Felix V. Valencia, from his position as general superintendent in the
Cebu Portland Cement Company, Cebu, was unjustifiable because
no valid reasons existed for said removal. The decision of the Court
of Industrial Relations, affirmed by this Court, ordered that Felix V.
Valencia be reinstated from May 1, 1949 to November 16, 1950,
with all the privileges and emoluments attached to said petition.
The present complaint was filed on June 22, 1956, and alleges that
plaintiff's separation from the Cebu Portland Cement Company on
June 16, 1950, was caused by the concerted individual acts of the
defendants, which are unreasonable, unjust and illegal. It further
alleges that in procuring plaintiffs dismissal through malicious,
illegal, unjust, oppressive and high-handed acts, plaintiff and his
family have been terribly humiliated and have suffered an
irreparable injury to their good name, reputation, honor, social
dealings and prestige. So it is prayed that actual or compensatory
damages, exemplary damages, nominal or temperate damages,
attorney's fees and contingent fees, all amounting to P299,509.00,
be granted plaintiff-appellant.lawphi1.net
Plaintiff-appellant claims that the Court of Industrial Relations case
presented by him against the defendant Cebu Portland Cement
Company is not a bar to the present action because the said court
has no jurisdiction over his present claim. we find this contention to
be without merit. The removal of plaintiff from his position as
general superintendent, which removal was held by the Court of
Industrial Relations and by us to be illegal, up to November 16, 1950,
is the cause or reason for the present action for nominal, exemplary
and other damages. As action by defendant-appellees in the lower
court, a party to an action cannot split his cause of action into many
causes. (rule 2, section 3.) When, therefore, the plaintiff-appellant
filed his action for reinstatement, he should have included in said
action the supposed damages that he now claims in his complaint in
this case. It is well settled that a party, after presenting an action,
cannot by a subsequent proceeding or suit recover other damages
or remedies to which he was entitled in the former action, which is,
in this case, the alleged unlawful dismissal of the plaintiff.
The action is also barred by the statute of limitations. The cause of
action arose upon plaintiff's separation from the service on
November 16, 1950. When he filed the action on June 22, 1956,
more than the four years prescribed by Article 1146 the Civil Code
has already elapsed. The present action is one for injury to the rights
of the plaintiff. It is not, as claimed by plaintiff-appellant, an action
based on a former judgment. A previous judgment declared his
separation from May 31, 1949 to November 16, 1950, illegal, and
consequently, the court ordered payment of his services for that
period of time. If he claims any injury caused to him by the supposed
illegal acts of the defendants by his separation on November 16,
1950, he should have filed his action within four years from that
date. Hence, we are constrained to hold that the action which he
now institutes is barred by the provisions of said Article 1146 of the
Civil Code.
In view of the foregoing, the decision appealed from is hereby
affirmed, with costs against plaintiff-appellant.
G.R. No. L-2075 November 29, 1949
MARGARITA AFIALDA, plaintiff-appellant,
vs.BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.
This is an action for damages arising from injury caused by an
animal. The complaint alleges that the now deceased, Loreto
Afialda, was employed by the defendant spouses as caretaker of
their carabaos at a fixed compensation; that while tending the
animals he was, on March 21, 1947, gored by one of them and later
died as a consequence of his injuries; that the mishap was due
neither to his own fault nor to force majeure; and that plaintiff is his
elder sister and heir depending upon him for support.
Before filing their answer, defendants moved for the dismissal of the
complaint for lack of a cause of action, and the motion having been
granted by the lower court, plaintiff has taken this appeal.
Plaintiff seeks to hold defendants liable under article 1905 of the
Civil Code, which reads:The possessor of an animal, or the one who
uses the same, is liable for any damages it may cause, even if such
animal should escape from him or stray away.
This liability shall cease only in case, the damage should arise
from force majeure or from the fault of the person who may have
suffered it.The question presented is whether the owner of the
animal is liable when damage is caused to its caretaker.
The lower court took the view that under the above-quoted
provision of the Civil Code, the owner of an animal is answerable
only for damages caused to a stranger, and that for damage caused
to the caretaker of the animal the owner would be liable only if he
had been negligent or at fault under article 1902 of the same code.
Claiming that the lower court was in error, counsel for plaintiff
contends that the article 1905 does not distinguish between damage
caused to the caretaker and makes the owner liable whether or not
he has been negligent or at fault. For authority counsel cites the
following opinion which Manresa quotes from a decision of the
Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que
la que, clara y evidentemente, se deriva de sus terminos literales,
bastando, segun el mismo, que un animal cause perjuicio para que
nasca la responsibilidad del dueno, aun no imputandose a este
ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el
lgislador de que tal concepto de dueno es suficiente para que
arrastre las consecuencias favorables o adversas de esta clase de
propiedad, salvo la exception en el mismo contenida. (12 Manresa,
Commentaries on the Spanish CivilCode, 573.)
This opinion, however, appears to have been rendered in a case
where an animal caused injury to a stranger or third person. It is
therefore no authority for a case like the present where the person
injured was the caretaker of the animal. The distinction is important.
For the statute names the possessor or user of the animal as the
person liable for "any damages it may cause," and this for the
obvious reason that the possessor or user has the custody and
control of the animal and is therefore the one in a position to
prevent it from causing damage.
In the present case, the animal was in custody and under the control
of the caretaker, who was paid for his work as such. Obviously, it
was the caretaker's business to try to prevent the animal from
causing injury or damage to anyone, including himself. And being
injured by the animal under those circumstances, was one of the
risks of the occupation which he had voluntarily assumed and for
which he must take the consequences.
In a decision of the Spanish Supreme Court, cited by Manresa in his
Commentaries (Vol. 12, p. 578), the death of an employee who was
bitten by a feline which his master had asked him to take to his
establishment was by said tribunal declared to be "a veritable
accident of labor" which should come under the labor laws rather
than under article 1905 of the Civil Code. The present action,
however, is not brought under the Workmen's Compensation Act,
there being no allegation that, among other things, defendant's
business, whatever that might be, had a gross income of P20,000. As
already stated, defendant's liability is made to rest on article 1905 of
the Civil Code. but action under that article is not tenable for the
reasons already stated. On the other hand, if action is to be based
on article 1902 of the Civil Code, it is essential that there be fault or
negligence on the part of the defendants as owners of the animal
that caused the damage. But the complaint contains no allegation
on those points.
There being no reversible error in the order appealed from, the
same is hereby affirmed, but without costs in view of the financial
situation of the appellant.
G.R. No. L-10107 February 4, 1916
CLARA CEREZO, plaintiff-appellant,
vs.
THE ATLANTIC GULF & PACIFIC COMPANY, defendant-appellant..
Luciano de la Rosa for plaintiff.
William A. Kincaid and Thomas L. Hartigan for defendant.
TRENT, J.:
This is an action for damages against the defendant for negligently
causing the death of the plaintiff's son, Jorge Ocumen, on the 7th of
July, 1913, deceased being plaintiff's only means of support.
Judgment was entered in a favor of the plaintiff for the sum of
P1,250, together with interest and costs. Defendant appealed.
The deceased was an employee of the defendant as a day laborer on
the 8th of July, 1913, assisting in laying gas pipes on Calle Herran in
the city of Manila. The digging of the trench was completed both
ways from the cross-trench in Calle Paz, and the pipes were laid
therein up to that point. The men of the deceased's gang were filling
the west end, and there was no work in the progress at the east end
of the trench. Shortly after the deceased entered the trench at the
east end to answer a call of nature, the bank caved in, burying him
to his neck in dirt, where he died before he could be released. It has
not been shown that the deceased had received orders from the
defendant to enter the trench at this point; nor that the trench had
been prepared by the defendant as a place to be used as a water-
closet; nor that the defendant acquiesced in the using of this place
for these purposes. The trench at the place where the accident
occurred was between 3 and 4 feet deep. Nothing remained to be
done there except to refill the trench as soon as the pipes were
connected. The refilling was delayed at that place until the
completion of the connection. At the time of the accident the place
where the deceased's duty of refilling the trench required him to be
was at the west end. There is no contention that there was any
danger whatever in the refilling of the trench.
The plaintiff insists that the defendant was negligent in failing to
shore or brace the trench at the place where the accident occurred.
While, on the other hand, the defendant urges (1 ) that it was under
no obligation, in so far as the deceased was concerned, to brace the
trench, in the absence of a showing that the soil was of a loose
character or the place itself was dangerous, and (2) that although
the relation of master and servant may not have ceased, for the
time being, to exist, the defendant was under no duty to the
deceased except to do him no intentional injury, and to furnish him
with a reasonably safe place to work.
As the complaint fails to show whether the plaintiff's right to recover
is based on the Employers' Liability Act (Act No. 1874) or the Civil
Code, it is necessary to determine just what effect the former has
had upon the law of industrial accidents in this country.
Act No. 1874 is essentially a copy of the Massachusetts Employers'
Liability Act (Rev. Laws. 1902, chap. 106 secs. 71-79), it having been
originally enacted in that jurisdiction in 1887. (Stat. 1887, chap. 270.)
The Massachusetts statute was "copied verbatim, with some
variations of detail, from the English statute (43 & 44 Vict., c. 42).
Therefore it is proper, if not necessary, to begin by considering how
the English act had been constructed before our statute was
enacted.' (Ryalls vs. Mechanics' Mills, 150 Mass., 190; 5 L.R.A. 667.)
The English statute was enacted effective January 1, 1881. The
Employers' Liability Act of Alabama, first enacted in 1885 (Civil Code,
1907, chap. 80, sec. 3910), "is a substantial, if not an exact, copy of
the English act of 1880. This court is not finally concluded by the
decision of any other State court or the British court, in their
construction of a similar statute, but the opinion of learned courts
upon similar questions are entitled to great weight and this is
especially true when the statute, from which ours was copied, had
been construed prior to its enactment by our legislature."
(Birmingham Ry. and Electric Co. vs. Allen, 99 Ala. 359, 371; 120 L. R.
A., 457.)
The employers' Liability Act of Colorado (Laws 1893, chap. 77; Mill's
Annotated Statutes, Supp. 1891-1896, sec,. 1511a) was copied from
the Massachusetts Act of 1887 and the Colorado legislature
"presumably adopted the act with the construction that had been
given it by the courts of that state." (Colorado Milling and Elevator
Co. vs. Mitchell [1899], 26 Colo., 284). Generally speaking, when a
statute has been adopted from another state or country and such
statute has previously been constructed by the courts of such state
or country, the statute is deemed to have been adopted with the
construction so given it (2 Lewis Southerland on Stat. Const., sec.
738). The law being so clearly ascertain what the law stands for in
those jurisdiction where it has been in force for a long time past.
To adequately comprehend the significance of the Act in England
and in those States of the United States where it has been adopted,
it is necessary to set forth briefly the liability of an employer for
personal injuries suffered by his workmen prior to its enactment. At
common law masters impliedly agreed to use reasonable care to
provide reasonably safe premises and places in and about which the
servant was required to work, to furnish reasonably safe and
suitable machinery, and a sufficient supply of proper materials,
tools, and appliances for the work to be done, and at all times during
the continuance of the work to repair and to keep in the same safe
and suitable condition the places, machinery, and appliances; to
provide competent workmen; and so far as the servant could not be
assumed to know the perils of the work itself, or of the particular
portion of it in which he was engaged, to instruct him and to warn
him of any secret danger of which the master was aware. As to
these matters, the master was bound to exercise that measure of
care which reasonably prudent men take under similar
circumstances. But the master was not an insurer and was not
required to provide the safest possible plant or to adopt the latest
improvements or to warrant against latent defects which a
reasonable inspection did not disclose. It was only necessary that
the danger in the work be not enhanced through his fault.
The right of the master to shift responsibility for the performance of
all or at least most of these personal duties to the shoulders of a
subordinate and thereby escape liability for the injuries suffered by
his workmen through his non-performance of these duties, was, in
England, definitely settled by the House of Lords in the case of
Wilson vs. Merry (L.R. 1 H.L. Sc. Appl Cas., 326; 19 Eng. Rul. Cas.,
132). This was just two years before the enactment of the
Employers' Liability Act of 1880, and no doubt the full significance of
such a doctrine was one of the impelling causes which expedited the
passage of the Act, and chiefly accounts for the presence in it of
subsection 1 of section 1.
While there were some authorities in the United States prior to 1880
decidedly in favor of the doctrine of Wilson vs. Merry, by far the
greater weight of authority was that such duties were personal to
the master and that he could not by delegating such duties to
subordinates escape liability for their negligent performance.
The servant, on his part, by entering the employment, was held to
impliedly agree to take upon himself the perils arising from the
carelessness and recklessness of those who were in the same
employment, without regard to their grade or rank or authority in
the service, provided that the act causing the injury was not in the
performance of any personal duty of the master intrusted to the
negligent servant.
In Street's edition of Shearman and Redfield on Negligence (vol. 1,
sec. 180), the following statement and history of the rule is given:
Under the principles before stated, it must be conceded to be
settled at common law that a master is not liable for injuiries
personally suffered by his servant through the ordinary risks of the
business, including the negligence of a fellow servant, acting as such,
while engaged in the same common employment, unless the master
is chargeable with negligence in the selection of the servant in fault,
or in retaining him after actual or constructive notice of his
incompetency. This "bad exception to a bad rule," as Lord Esher
called it, in his testimony before a parliamentary committee, was
first suggested in 1837, in an English court, in Priestly vs. Fowler (3
M. and W., 1), where the precise point did not arise. That case,
however, is always spoken of as the foundation of the rule. The first
real decision of the question was made in South Carolina in 1841
(Murray vs. South Carolina R. Co., 1 McMull. Law, 385.) This was
cited and approved by Chief Justice Shaw, of Massachusetts, 1841,
in the Farwell case (Farwell vs. Boston, etc., R. Co., 4 Met., 49),
which is the leading case on the question, and contains all the
reasoning in favor of the rule which is worth mentioning. His opinion
was followed in New York in 1847 (Coon vs. Syracuse, etc., R. Co., 6
Barb., 231, affirmed 1851, 5 N. Y., 492). ... Since then the rule has
been forced upon Scotland, by the votes of English judges,
overruling the Scotch courts; and it has been accepted by all
American courts, both Federal and State, with only some
qualification in Kentucky and some western and southern States;
which, however, turn rather upon the interpretation of the rule than
upon the rule itself.
As the inadequacy of the doctrine to keep pace with the marvelous
industrial development of the last century became apparent, it was
sought, in most jurisdictions, to soften its rigors by introducing the
fiction of vice-principalship which undertook to increase the number
of responsibilities which the master could not escape by delegating
them to subordinates. The whole doctrine was in brief, a denial as to
the employees, of the principle of respondeat superior. Under the
latter, a stranger invited upon the master's premises, either
expressly or impliedly, could recover for injuries received through
the negligence of the masters' employees. It was this right which
was denied to the employee.
Another defense to which the master was entitled under the
common law was that known as contractual assumption of risks.
Practically the same thing is referred to in very many cases as the
defense of volenti non fit injuria. (That to which a person assents is
not deemed in law an injury.) While these two defenses are
theoretically distinct, it has been said by one learned writer that it is
impossible to treat the two separately in reviewing American
decisions (5 Labatt's Master and Servant, sec. 1647a). The distinction
is usually important only when the master's breach of a statutory
duty is concerned. In those jurisdictions holding that the
continuance in the service of an employee after he has knowledge of
the violation of a statutory duty by the master is not a defense, the
holding is usually justified on the ground of an implied contract of
the servant to assume the risks of the business; and that,
consequently, it would be against public policy to permit the master
to contract against the effects of violation of the statute. It is in
those jurisdictions that recognize the same state of facts as a
defense available to the master where the maxim volenti non fit
injuria is relied upon, such courts holding that no contract, express
or implied, is involved, and that consequently, the public policy in
question is not involved. Under either name, the defense in question
leaves the workman without remedy when his injury results from a
risk known or imputable to him before entering the employment or
because of his continuance at work after such knowledge came to
him, whether such a risk was due to a defect in the ways, works or
machinery, or to negligence of the master or other persons in the
common employment.
A third defense which a master could interpose in an action against
him by an employee for personal injuries received in the course of
the employment was that of contributory negligence. It has been
frequently remarked that this defense is often confused with that of
assumption of risk or volenti non fit injuria. The Supreme Court of
the United States explained the distinction between the tow defense
in the following language in the recent case of Seaboard Air Line
Railway vs. Horton (233 U.S., 492, 503):
The distinction, although simple, is sometimes overlooked.
Contributory negligence involves the notion of some fault or breach
of duty on the part of the employee; and since it is ordinary his duty
to take some precaution for his won safety when engaged in
hazardous occupation, contributory negligence is sometimes defined
as a failure to use such care for his safety as ordinarily prudent
employees in similar circumstances would use. On the other hand,
the assumption of risk, even though the risk be obvious, may be free
from any suggestion of fault or negligence on the part of the
employee. The risks may be present, notwithstanding the exercise of
all reasonable care on his part. Some employments are necessarily
fraught with danger to the workmen — danger hat must be and is
confronted in the line of his duty. Such dangers as are normally and
necessarily incident to the occupation are presumably taken into the
account in fixing the rate of wages. And a workman of mature years
is taken to assume risks of this sort, whether he is actually aware of
them or not. But risks of another sort, not naturally incident to the
occupation, may arise out of the failure of the employer to exercise
due care with respect to providing a safe place of work and suitable
and safe appliances for the work. These the employee is not treated
as assuming until he becomes aware of the defect or disrepair and
of the risk arising from it, unless defect and risk alike are so obvious
that an ordinarily prudent person under the circumstances would
have observed and appreciated them.
See also Dowd vs. New York, O. and W. Ry. Co. (170 N. Y. 459). In
Halsbury's Laws of England (vol. 20, p. 138), it is said:
The defense of contributory negligence is always available in actions
for compensation for negligence. It is a common law defense
available to a master sued by a workman in respect of personal
negligence, and, if proved, defeats the action.
Cooley on Torts (2nd ed., page 667), says:
Where the master is sued by his servant for an injury which it is
claimed has been occasioned by his negligence, it is very properly
and justly held that the plaintiff is not to recover if his own
negligence contributed with that of the defendant in producing the
injury.
Summing up the defenses available to the master under the
common law of England and the United States, it may be said that
he could defend against an action by his servant by proving his own
freedom from negligence, the plaintiff's contributory negligence,
that injury was caused by the negligence of a fellow servant, or that
it happened through one of the ordinary risks of the employment.
Any one of these defenses was a sufficient answer to the plaintiff's
claim. The first two are defenses which he might urge against the
claim of a stranger, but the last two are peculiar to the relationship
of master and servant, and are said to arise from the implied
contract of service between them.
Let us now see what effect the Employers' Liability Act had upon the
common law. In England, as we have stated above, the employer
was not liable under the common law for injuries to his employees
caused by the negligence of a fellow servant who had been intrusted
by the master with the duty of furnishing the employees safe places,
machinery, etc., for their work. Under the first subsection of section
1 of the Employers' Liability Act, it is clear that an employer may no
longer claim exemption from liability upon this ground. But, as
above stated, it was already the majority rule of the common law in
the United States that masters could not delegate their
responsibilities to provide safe premises and machinery for their
employees or subordinates. Hence, we find the Massachusetts court
saying in McCafferty vs. Lewando's F. D. and C. Co. (1914 Mass., 412;
120 Am. St. Rep., 562):
So far as defects in the ways, works, and machinery are concerned,
there is no difference between the liability under the Employers'
Liability Act (Rev. Laws. c. 106, sec. 71, cl. 1) and at a common law,
except in the amount which can be recovered.
In Alabama it was said in Wilson vs. Louisville, etc., R. Co., (35 Ala.,
269):
Under the statute, negligence in causing, or failing to discover or
remedy a defect, is essential to liability. It does not undertake to
define what shall constitute a defect, or negligence in regard to the
condition of the ways, works, machinery or plant. To determine
these matters, reference must be made to the principles of the
common law. Therefore, whether the plaintiff's right to recover is
based on the statutory or common law liability of an employer, the
measure of defendant's duty to plaintiff is essentially the same.
In Colorado Milling and Elevator Co. vs. Mitchell (26 Colo., 284), it
was said:
Clauses 1 and 2, which are the only provisions that can be said to
have any bearing upon the case in hand, are, so far as they go, but a
legislative recognition of the principles laid down in the former
decisions of this court.
It is, however, observed in Toomey vs. Donovan (158 Mass., 232),
that section 4 of their Act (sec. 6 of our own) enlarges "the liability
of the employer; otherwise, it is meaningless. The inference from
the section plainly is that the employer should be liable when a
contractor does part of his work and an employee of the contractor
is injured by reason of a defect in the condition of the ways, works,
machinery, or plant furnished by the employer to the contractor,
which has not been discovered or remedied through the negligence
of the employer, or of some person intrusted by him with the duty
of seeing that they were in proper condition."
In England, the view is entertained that the liability imposed by the
Act in extension or derogation of the employer's common law
liability arises almost entirely from the partial abrogation of the
doctrine of common employment which the Act effects (Weblin vs.
Ballard, 17 Q, B. D., 122).
The Employers' Liability Act was passed to obviate the injustice to
workmen that employers should escape liability where persons
having superintendence and control in the employment were guilty
of negligence causing injury to workmen. The object of the Act was
to get rid of the inference arising from the fact of common
employment with respect to injuries caused by any persons who are
intrusted with the duty of seeing that the ways, works, or machinery
are in proper condition, who have duties of superintendence and
control. And, in the case of railroads, who have charge or control of
engines, switches, signals, or trains. (Griffiths vs. Earl or Dudley , 9 Q.
B. D., 357, 362.)
In Massachusetts, prior to the enactment in question, it had always
been the rule that the common employer was not liable to an
employee for injuries sustained through the negligence of a
superintendent or superior workman (Zeigler vs. Day, 123 Mass.,
152; Kalleck vs. Deering, 161 Mass., 469; 42 Am. St. Rep., 421). In
Quinlan vs. Lackawanna Steel Co. (107 App. Div., 176; 94 N. Y. S.,
942), it was said that the act was undoubtedly intended to make the
employer liable for the acts of a superintendent while engaged in
acts of superintendence. In 1 Dresser on Employers' Liability is it
said:
The effect of the Act is to except from the class of fellow servants,
the risk of whose negligence the servant was held to have assumed,
such persons as are intrusted by the master with duties of
superintendents while in the exercise of them.
In Alabama it has been said that the statute does not make the
master liable for the negligence of an employee who is a mere
fellow servant and nothing more of the injured employee
(Walton vs. Tennessee Coal, Iron & R. R. Co., 166 Ala., 538).
IN 5 Labatt's Master and Servant, p. 5192, it is said that, generally
speaking, conditions precedent to recovery are (1) that the servant
was a "superintendent" within the meaning of the acts; (2) that the
act which was the immediate cause of the injury was negligent; and
(3) that the act was done in the exercise of the controlling functions
of the superintendent. It has been suggested that, in effect,
subsection 2 of section 1 extends to workmen the benefit of the
principle of respondeat superior so far as negligent act of
"superintendents" are concerned.
The third subsection of section 1 carries the abrogation of the
fellow-servant doctrine even farther as respects employees of what
is generally known as the operating department of railroads. In this
industry an employer is liable not only for negligent acts of those
who may be properly said to be within subsection 2, but also,
according to subsection 3, to all persons "in charge or control of any
signal, switch, locomotive engine or train." Railroad companies have
thus special liabilities and railroad employees have special benefits
under the Act.
The effect of the Act on the fellow-servant doctrine was not to
entirely abolish it but to reduce it scope. As was said in Henahan vs.
Lyons (1909) (201 Mass., 269), "There can be no recovery for the
negligence of an employee where there is no evidence that
superintendence was his sole or principal duty."
Now, what effect has the Act had upon the common law defense of
assumption of risk, or as it is considered in some
jurisdictions, volenti non fit injuria? In a recent case decided by the
Supreme Court of the United States, in which the Federal Employers'
Liability Act of April 22, 1908 (c. 149, 35 Stat., 65) was discussed, it
was said:
Upon the merits, we of course sustain the contention that by the
Employers' Liability Act the defense of assumption of risk remains as
at common law, saving in cases mentioned in section 4, that is to
say: "any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the
injury or death of such employee." (Southern ry. co. vs. Crockett,
234 U.S., 725.)
In England, it was said in the case of Thomas vs. Quartermaine (18 Q.
B. D., 685) that the Act had not varied the effect of the
maxim volenti non fit injuria so far as it involves the ordinary risks
inherent in his particular employment. To the same effect is
O'Maley vs. South Boston Gas Light Co. (158 Mas., 135); Birmingham
Ry. and Electric Co. vs. Allen (99 Ala., 359); Whitcomb vs. Standard
Oil Co. (153 Ind., 513). But while the Act made no change in the
doctrine of assumed risks, there is, nevertheless, a noticeable
difference in the difference in the application of the doctrine in favor
of the workman since the enactment of these Acts. The doctrine is
based upon the implied consent of the servant to accept or continue
in the employment after becoming aware of the risk resulted in his
injury. It was formerly held that mere acceptance of the
employment or continuance in it with knowledge of the risk was
conclusive of the workman's consent to accept the risk, and the
usual practice was, when evidence of this nature was satisfactory, to
direct a verdict or nonsuit in favor of the defendant. The trend of
modern public sentiment in favor of compensation for industrial
accidents, however, has had the influence of making the assumption
of risks almost entirely a question of fact instead of, as under the
former practice, practically inferring his consent from the fact of his
knowledge of the risk coupled with his continuance in the service.
The unwillingness of the employee to sacrifice his employment has
been recognized as an inducement for him to run the risk, however,
unwilling he may be, in fact, to do so. This new theory of the
assumption of risk, however, does not abrogate the doctrine at all. It
merely requires more convincing evidence of the employee's
assumes the ordinary risks inherent abnormal risks arising from
unusual conditions, the new view of the doctrine requires the
question of his consent to undergo such risks to be considered
purely as a question of fact and to require cogent and convincing
evidence of such consent. Cases in which the whole matter is
discussed at length are Thomas vs. Quartermaine (18 Q. B. D., 685);
Yarmouth vs. France (19 Q. B. D., 647; 17 Eng. Rul. Cas., 217);(60 L.J.,
Q. B. D., N. S., 688); Fitzgerald vs. Connecticut River Paper Co. (155
Mass., 155;31 Am. St. Rep., 537); Mahoney vs. Dore (155 Mass.,
513); Davis vs. Forbes, 171 Mass., 548); Simoneau vs. Rice &
Hutchins (202 Mass., 82); and see 3 Labatt's Master and Servant, p.
3627, et seq.; 2 Dresser on Employers' Liability, p. 326.
The defense of contributory negligence is always available in actions
for compensation for negligence. It is a common law defense
available to a master sued by a workman in respect of personal
negligence, and, if proved, defeats the action. The act has not
deprived the employer of this defense. (20 Halsbury's Laws of
England, p. 138.)
In Massachusetts it was said that assuming the negligence of a
superintendent, the servant could not recover if he were guilty of
contributory negligence. (Regan vs. Lombard, 192 Mass., 319). This
doctrine, however, like that of the assumption of risk, has been
more recently partially abrogated by statutes. Under the Federal
Employers' Liability Act of April 22, 1908 (36 Stat., 65 U. S. Comp.
Stat. Supp., 1911, p. 1322), the defense of contributory negligence
"is abrogated in all instances where the employer's violation of a
statute enacted for the safety of his employees contributes to the
injury." And in several States the doctrine of comparative
negligence, as to some industries, has been established by statute.
The effect of these statutes is to diminish the damages recoverable
in proportion to the negligence of the injured person. (Arkansas,
Laws of 1907, p. 162; Colorado, Act of May 27, 1911; Morrison and
De Soto Stat. Ann., secs. 2060 and 2063; Florida, Gen. Stat. 1906,
secs. 3148 et seq.; Georgia, Code 1911, Acts 1909 p. 160).
Viewing the act as a whole, it was said in Thomas vs. Quartermaine
(18 Q. B. D., 685), per Bawen, L. J.:
The true view in my opinion is that the Act, with certain exceptions,
has placed the workman in a position as advantageous as but no
better than that of the rest of the world who use the master's
premises at his invitation on business. If it has created any further or
other duty to be fulfilled by the master I do not know what it is, how
it is to be defined, or who is to define it.
In Mobile etc., Ry. Co. vs. Holborn (84 Ala., 133), it was said:
The purpose of the statute is to protect the employee against the
special defenses growing out of, and incidental to, the relation of
employer and employee; and the result is to take from the employer
such special defenses, but to leave him all the defenses which he has
by the common law against one to of the public, not a trespasser,
nor a bare licensee.
In 1 Dresser on Employers' Liability, sec. 2, it is observed that it is
apparent that the Act has not attempted to define generally the
rights and duties of masters and servants, and is not a codification of
the law. Constant reference must be made to the common law to
define who are masters and who are servant, what is the scope of
the employment and whether the inquiry was the proximate result
of the negligence; and negligence itself is determined by the
common law, and not by the Act. The Act, moreover, is silent
concerning certain terms of the contract of service. It does not
impose any obligation on the master to employ competent servants,
nor to instruct or warn his servants about their work or the dangers
of it. These obligations were too well settled and important to be
taken away by implication merely, and the courts have held that the
Act was remedial, and a concurrent, instead of an exclusive, remedy.
It is manifest, therefore, that the purpose of the Employers' Liability
Act was, at most, to abolish certain defenses in certain specified
cases, but in no manner to prejudice common law right of
employees or to interfere with the enforcement of any right that the
Act itself did not create. Such have been the holdings of the courts in
England and the United States form the very beginning.
We now come to the consideration of Act No. 1874 for the purpose
of determining what effect this Act has had upon the law of
damages in personal injury cases in this country, bearing in mind
that the Act is, as we have indicated, essentially a copy of the
Massachusetts Employers' Liability Act which has "prevailed in the
State of Massachusetts some years and upon which interpretations
have been made by the Massachusetts courts, defining the exact
meaning of the provision of the law." (Special report of the joint
committee of the Philippine Legislature on the Employers' Liability
Act, Commission Journal 1908, p. 296.) We agree with the Supreme
Court of Massachusetts that the Act should be liberally construed in
favor of employees. The main purpose of the Act, as its title
indicates, was to extend the liability of employers and to render
them liable in damages for certain classes of personal injuries for
which it was thought they were liable under the law prior to the
passage of the Act.
We do not doubt that it was, prior to the passage of Act No. 1874
and still is, the duty of the employer in this jurisdiction to perform
those duties, in reference to providing reasonably safe places, and
safe and suitable ways, works, and machinary, etc., in about which
his employees are required to work, which under the common law
of England and America, are termed personal duties, and which in
the United States are held to be such that the employer cannot
delegate his responsibility and liability to his subordinates.
This (rule of) contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the
employee, thus closely corresponding to the English and American
law. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359, 366.)
So, to this extent, the first subsection of section 1 of the Act is simply
declaratory of the law as it stood previous to the enactment. It may
be that the employer would not be liable, under the Civil Code, for
personal injuries caused to his employees as a result of the
negligence of the employer's superintendent or acting
superintendent, or that of a person in charge or control of a signal,
etc., provided that the employer "employed all the diligence of a
good father of a family to avoid the damage." (Art. 1903 of the Civil
Code, and Chaves and Garcia vs. Manila Electric Railroad and Light
Co., 31 Phil. Rep., 47.) Under the Act the employer would be liable in
damages for such negligence of the employees named. If this view
be correct, a question which we are not now called upon to
definitely determine, then the liability of employers was, in fact,
extended and new rights of action were created by the Act. It is
these new rights to which the Act refers, wherein it provides that
"the employee, or his legal representative, shall, subject to the
provisions of this Act, have the rights to compensation and of action
against the employer as if he had not been an employee, nor in the
service, nor engaged in the work, of the employer."
Standing in this form, it is quite clear that it was not intended that all
rights to compensation and of action against employers by injured
employees or their representatives must be brought under be
governed by the Act. The strongest proof of all, showing that the
Legislature never intended by the Act to curtail the rights of
employees, is that of the defense of contributory negligence which
defeats the action under the Act, while under the Civil Code, such
complete defense does not exist at all in this country. (Rakes vs.
Atlantic, Gulf and Pacific Co., supra; Eades vs. Atlantic Gulf and
Pacific Co., 19 Phil. Rep., 561.) That the defense of contributory
negligence, as it is understood in the United States, is recognized in
the Act with all its force and effects is clear, because the first section
requires as an essential requisite that the employee be "in the
exercise of due care" at the time of the injury in order to hold the
employer liable for damages. The plaintiff in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra) could not have recovered under
the Act because he was not in the exercise of due care at the time of
the inquiry.
Taking into consideration what we have said above in reference to
the origin and history of the Act, its plain purport, and realizing that
the legislature was content with the expounded meaning of the
words which it adopted, we find no difficulty in reaching the
conclusion that in those cases either within or without the words of
the Act in which the law, as it stood prior to the passage of the Act,
gives an employee a remedy, he still has a right to sue under the
same conditions and to recover damages to the same extent as if
the Act had not been passed. We are also of the opinion that so far
as section 1 of the Act is concerned, the provisions giving the
employees the same rights to compensation and to action as if they
had not been employees, the requirement of notice as a condition
to maintaining the action, that relating to the time within which the
action must be brought, and that requiring the employee to give
notice to his employer within a reasonable time after he becomes
aware of the defect or negligence, only apply to those extremes
lying outside of the Civil and allied Codes, but embraced by the Act,
unless a case shall arise in which the plaintiff, although he has a
remedy under the Civil Code, insists upon relying upon the Act
alone. (Ryalls vs. Mechanics' Mills, 150 Mass., 190, and cases cited
therein.) Act No. 2473 has not in the least changed these principle.
The net result is that we are required, under the pleadings and
record in the case at bar, to determine whether the plaintiff can
recover for the death of her son under either Act No. 1874 or the
Civil Code.
Assuming that the excavation for the gas pipe is within the category
of "ways, works, or machinery connected with the used in the
business of the defendant, " we are of the opinion that recovery
cannot be had under the Act for the reason that, as we have
indicated, the deceased was at a place where he had no right to be
at the time he met his death. His work did not call him there, nor is it
shown that he was permitted there tacitly or otherwise. Under the
Anglo-American law the applicable to such a set of facts is that the
master is not responsible, under the Employers' Liability Act, for
accidents to his employees when they are outside the scope of their
employment for purpose of their own.
The obligations of the master ... continue in force, not only during all
the time in which his servants are actually engaged in his service, but
also during the time reasonably occupied by them on his premises in
going to and returning from their work and in intervals of rest
between. ... But he is under no obligation to keep in safe condition
for their use any part of the premises to which their duties do not
call them and to which he has not given them permission to go.
(Street's edition of Shearman and Redfield on Negligence [vol. 1],
sec. 188.)
To the same effect is 4 Labatt's Master and Servant, p. 4697.
A master's duty in respect to furnishing his servants a safe place in
which to work extends to such parts of his premises only as he has
prepared for their occupancy while doing his work, and to such
other parts as he knows or ought to know they are accustomed to
use while doing it. The application of this principle has frequently
prevented recovery in cases where the injury proximately resulted
form the fact that the injured servant was occupying the dangerous
position merely for his own convenience and accommodation.
Under such circumstances his legal rights are no greater than those
of a licensee.
Besides the many cases cited by this author supporting his text, we
note Connell vs. New York C. and H. R. R. Co. (129 N. Y., Sup. 666);
Louisville and N. R. R. Co. vs. Hocker (111 Ky., 707); Gawlack vs.
Michigan C. R. Co. (11 Ohio C. C., 59); Pfeiffer vs. Ringer (12 Daly,
437) — in all of which cases the injured persons were attending a
call of nature in dangerous circumstances at places not authorized
by the employer to be used for that purpose; Wilson vs. Chesapeake
and O. Ry. Co. (130 Ky., 182), where plaintiff left a roundhouse in
which he was working at night and get something to eat; Pioneer
Mining and Mfg. Co. vs. Talley (12 L. R. A., N. S., 861), where plaintiff,
a miner, left his work and went into another portion of the mine to
get his own tools which he had loaned to other workmen;
McCann vs. Atlantic Mills (20 R. I., 566), where plaintiff went into a
dark place to get a drink of water and was injured by falling into a
reservoir; and Adams vs. Iron Cliffs Co. (78 Mich., 271; 18 Am. St.
Rep., 441), where plaintiff left his work during working hours and
started to cross some railroads racks for the purpose of attending to
his private business. In all these cases it was held that the injured
person was outside the scope of his employment at the time and,
hence, had no right of action against his employer.
Article 1105 of the Civil Code provides that:
No one shall be liable for events which could not be foreseen, or
which having been foreseen were inevitable, with the exception of
the cases expressly mentioned in the law of those in which the
obligation so declares.
The case under consideration does not fall within the exceptions
mentioned in the above quoted article. (Manresa, vol. 8, p. 91.)
After providing a reasonably safe place in and about which the
deceased was required to work, the defendant's liability was then
limited to those events which could have been foreseen. Article
1902 provides that a person who, by an act or omission causes
damage to another when there is fault or negligence shall be obliged
to repair the damage so done. Article 1903 after providing for the
liability of principals for the acts of their employees, agents, or these
for whom they are otherwise responsible, provides that such liability
shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the
damage. We have then, on the one hand, nonliability of an employer
for events which could not be foreseen (article 1105), and where he
has exercised the care of a good father of a family (article 1903),
and, on the other hand, his liability where fault or negligence may be
attributed to him (article 1902).
Gideon, city engineer of Manila and a witness for the plaintiff,
testified concerning his experience with trenches in the city. He
stated that if the trenches are very dangerous his department uses
sheathing piles and braces them firmly. If the trenches are of
considerable depth and the ground is not considered safe, they put
planks on both sides, supported by braces. If the trenches are not
very deep or if the ground is considered safe, they simply make the
excavations. The conditions vary and the precautions used depend
upon the opinion of an experienced engineer. Seaver, chief of police
of the city of Manila and also a witness for the plaintiff, testified that
the slide which caused the death of the deceased came principally
from the side of the trench farthest from the street-car tracks.
Captain Ordax of the police department, another witness for the
plaintiff, testified that the earth which covered the deceased's body
came from the side opposite the street-car tracks. Another witness
testified that the distance from the street-car tracks to the trench
was only a few feet, but that the trench had been open for a week.
From the testimony of the witnesses it does not appear that there
was any water in the bottom of the trench, although some of the
witnesses said that it was damp. The trench was only three and one-
half to four and one-half feet deep. The cause of Ocumen's death
was not the weight of the earth which fell upon him, but was due to
suffocation. He was sitting or squatting when the slide gave way.
Had he been even half-erect, it is highly probable that he would
have escaped suffocation or even serious injury. Hence, the accident
was of a most unusual character. Experience and common sense
demonstrate that ordinarily no danger to employees is to be
anticipated from such a trench as that in question. The fact that the
walls had maintained themselves for a week, without indication of
their giving way, strongly indicates that the necessity for bracing or
shoring the trench was remote. To require the company to guard
against such an accident as the one in question would virtually
compel it to shore up every foot of the miles of trenches dug by it in
the city of Manila for the gas mains. Upon a full consideration of the
evidence, we are clearly of the opinion that ordinary care did not
require the shoring of the trench walls at the place where the
deceased met his death. The event properly comes within the class
of those which could not be foreseen; and, therefore, the defendant
is not liable under the Civil Code.
Having reached the conclusions above set forth, it is unnecessary to
inquire into the right of the plaintiff to bring and maintain this
action.
For the foregoing reasons the judgment appealed from is reversed
and the complaint dismissed, without costs. So ordered.

G.R. No. 154259 February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel
Manila Garden (Hotel Nikko)1 and Ruby Lim assail the Decision2 of
the Court of Appeals dated 26 November 2001 reversing the
Decision3 of the Regional Trial Court (RTC) of Quezon City, Branch
104, as well as the Resolution4 of the Court of Appeals dated 09 July
2002 which denied petitioners’ motion for reconsideration.
The cause of action before the trial court was one for damages
brought under the human relations provisions of the New Civil Code.
Plaintiff thereat (respondent herein) Roberto Reyes, more popularly
known by the screen name "Amay Bisaya," alleged that at around
6:00 o’clock in the evening of 13 October 1994, while he was having
coffee at the lobby of Hotel Nikko,5 he was spotted by his friend of
several years, Dr. Violeta Filart, who then approached him. 6 Mrs.
Filart invited him to join her in a party at the hotel’s penthouse in
celebration of the natal day of the hotel’s manager, Mr. Masakazu
Tsuruoka.7 Mr. Reyes asked if she could vouch for him for which she
replied: "of course."8Mr. Reyes then went up with the party of Dr.
Filart carrying the basket of fruits which was the latter’s present for
the celebrant.9 At the penthouse, they first had their picture taken
with the celebrant after which Mr. Reyes sat with the party of Dr.
Filart.10 After a couple of hours, when the buffet dinner was ready,
Mr. Reyes lined-up at the buffet table but, to his great shock, shame
and embarrassment, he was stopped by petitioner herein, Ruby Lim,
who claimed to speak for Hotel Nikko as Executive Secretary
thereof.11 In a loud voice and within the presence and hearing of the
other guests who were making a queue at the buffet table, Ruby Lim
told him to leave the party ("huwag ka nang kumain, hindi ka
imbitado, bumaba ka na lang").12 Mr. Reyes tried to explain that he
was invited by Dr. Filart.13 Dr. Filart, who was within hearing
distance, however, completely ignored him thus adding to his shame
and humiliation.14 Not long after, while he was still recovering from
the traumatic experience, a Makati policeman approached and
asked him to step out of the hotel.15 Like a common criminal, he was
escorted out of the party by the policeman.16 Claiming damages, Mr.
Reyes asked for One Million Pesos actual damages, One Million
Pesos moral and/or exemplary damages and Two Hundred
Thousand Pesos attorney’s fees.17
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the
party but not under the ignominious circumstance painted by the
latter. Ms. Lim narrated that she was the Hotel’s Executive Secretary
for the past twenty (20) years.18 One of her functions included
organizing the birthday party of the hotel’s former General
Manager, Mr. Tsuruoka.19 The year 1994 was no different. For Mr.
Tsuruoka’s party, Ms. Lim generated an exclusive guest list and
extended invitations accordingly.20 The guest list was limited to
approximately sixty (60) of Mr. Tsuruoka’s closest friends and some
hotel employees and that Mr. Reyes was not one of those
invited.21 At the party, Ms. Lim first noticed Mr. Reyes at the bar
counter ordering a drink.22 Mindful of Mr. Tsuruoka’s wishes to keep
the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain
waiter," to inquire as to the presence of Mr. Reyes who was not
invited.23 Mr. Miller replied that he saw Mr. Reyes with the group of
Dr. Filart.24 As Dr. Filart was engaged in conversation with another
guest and as Ms. Lim did not want to interrupt, she inquired instead
from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr.
Filart did not invite Mr. Reyes.25 Ms. Lim then requested Ms. Fruto
to tell Mr. Reyes to leave the party as he was not invited.26 Mr.
Reyes, however, lingered prompting Ms. Lim to inquire from Ms.
Fruto who said that Mr. Reyes did not want to leave.27 When Ms.
Lim turned around, she saw Mr. Reyes conversing with a Captain
Batung whom she later approached.28 Believing that Captain Batung
and Mr. Reyes knew each other, Ms. Lim requested from him the
same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes
to leave the party as he was not invited.29 Still, Mr. Reyes lingered.
When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to
speak to him herself as there were no other guests in the immediate
vicinity.30However, as Mr. Reyes was already helping himself to the
food, she decided to wait.31 When Mr. Reyes went to a corner and
started to eat, Ms. Lim approached him and said: "alam ninyo, hindo
ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain,
ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na
kayo."32 She then turned around trusting that Mr. Reyes would show
enough decency to leave, but to her surprise, he began screaming
and making a big scene, and even threatened to dump food on
her.331awphi1.nét
Dr. Violeta Filart, the third defendant in the complaint before the
lower court, also gave her version of the story to the effect that she
never invited Mr. Reyes to the party.34 According to her, it was Mr.
Reyes who volunteered to carry the basket of fruits intended for the
celebrant as he was likewise going to take the elevator, not to the
penthouse but to Altitude 49.35 When they reached the penthouse,
she reminded Mr. Reyes to go down as he was not properly dressed
and was not invited.36 All the while, she thought that Mr. Reyes
already left the place, but she later saw him at the bar talking to Col.
Batung.37 Then there was a commotion and she saw Mr. Reyes
shouting.38 She ignored Mr. Reyes.39 She was embarrassed and did
not want the celebrant to think that she invited him.40
After trial on the merits, the court a quo dismissed the
complaint,41 giving more credence to the testimony of Ms. Lim that
she was discreet in asking Mr. Reyes to leave the party. The trial
court likewise ratiocinated that Mr. Reyes assumed the risk of being
thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a
guest of Mr. Tsuruoka, the birthday celebrant. He assumed the risk
of being asked to leave for attending a party to which he was not
invited by the host. Damages are pecuniary consequences which the
law imposes for the breach of some duty or the violation of some
right. Thus, no recovery can be had against defendants Nikko Hotel
and Ruby Lim because he himself was at fault (Garciano v. Court of
Appeals, 212 SCRA 436). He knew that it was not the party of
defendant Violeta Filart even if she allowed him to join her and took
responsibility for his attendance at the party. His action against
defendants Nikko Hotel and Ruby Lim must therefore fail.42
On appeal, the Court of Appeals reversed the ruling of the trial court
as it found more commanding of belief the testimony of Mr. Reyes
that Ms. Lim ordered him to leave in a loud voice within hearing
distance of several guests:
In putting appellant in a very embarrassing situation, telling him that
he should not finish his food and to leave the place within the
hearing distance of other guests is an act which is contrary to
morals, good customs . . ., for which appellees should compensate
the appellant for the damage suffered by the latter as a
consequence therefore (Art. 21, New Civil Code). The liability arises
from the acts which are in themselves legal or not prohibited, but
contrary to morals or good customs. Conversely, even in the
exercise of a formal right, [one] cannot with impunity intentionally
cause damage to another in a manner contrary to morals or good
customs.43
The Court of Appeals likewise ruled that the actuation of Ms. Lim in
approaching several people to inquire into the presence of Mr.
Reyes exposed the latter to ridicule and was uncalled for as she
should have approached Dr. Filart first and both of them should
have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been
done by appellee Lim was to approach appellee Mrs. Filart and
together they should have told appellant Reyes in private that the
latter should leave the party as the celebrant only wanted close
friends around. It is necessary that Mrs. Filart be the one to
approach appellant because it was she who invited appellant in that
occasion. Were it not for Mrs. Filart’s invitation, appellant could not
have suffered such humiliation. For that, appellee Filart is equally
liable.
...
The acts of [appellee] Lim are causes of action which are predicated
upon mere rudeness or lack of consideration of one person, which
calls not only protection of human dignity but respect of such
dignity. Under Article 20 of the Civil Code, every person who violates
this duty becomes liable for damages, especially if said acts were
attended by malice or bad faith. Bad faith does not simply connote
bad judgment or simple negligence. It imports a dishonest purpose
or some moral obliquity and conscious doing of a wrong, a breach of
a known duty to some motive or interest or ill-will that partakes of
the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).44
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby
Lim and Dr. Violeta Filart the solidary obligation to pay Mr. Reyes (1)
exemplary damages in the amount of Two Hundred Thousand Pesos
(P200,000); (2) moral damages in the amount of Two Hundred
Thousand Pesos (P200,000); and (3) attorney’s fees in the amount of
Ten Thousand Pesos (P10,000).45 On motion for reconsideration, the
Court of Appeals affirmed its earlier decision as the argument raised
in the motion had "been amply discussed and passed upon in the
decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel Nikko and Ruby Lim
contend that the Court of Appeals seriously erred in –
I.
… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT
INJURIA CONSIDERING THAT BY ITS OWN FINDINGS, AMAY BISAYA
WAS A GATE-CRASHER
II.
… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY
LIABLE WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING,
AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH HUMILIATION,"
"WERE IT NOT FOR DR. FILART’S INVITATION"
III.
… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT
AS REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE
HUMILIATION OF AMAY BISAYA
IV.
… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY
BECAUSE OF HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN
ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS REGARD
V.
… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE
APPELLANT’S BRIEF, THEREBY DEPARTING FROM THE ACCEPTED
AND USUAL COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the
doctrine of volenti non fit injuria, they cannot be made liable for
damages as respondent Reyes assumed the risk of being asked to
leave (and being embarrassed and humiliated in the process) as he
was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is
not esteemed in law as injury"47 ) refers to self-inflicted injury48 or to
the consent to injury49 which precludes the recovery of damages by
one who has knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so.50 As formulated by
petitioners, however, this doctrine does not find application to the
case at bar because even if respondent Reyes assumed the risk of
being asked to leave the party, petitioners, under Articles 19 and 21
of the New Civil Code, were still under obligation to treat him fairly
in order not to expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively
in asking Roberto Reyes, a.k.a. "Amay Bisaya," to leave the party
where he was not invited by the celebrant thereof thereby
becoming liable under Articles 19 and 21 of the Civil Code.
Parenthetically, and if Ruby Lim were so liable, whether or not Hotel
Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and
irreconcilable conclusions concerning the same facts and evidence
of the case, this Court is left without choice but to use its latent
power to review such findings of facts. Indeed, the general rule is
that we are not a trier of facts as our jurisdiction is limited to
reviewing and revising errors of law.51 One of the exceptions to this
general rule, however, obtains herein as the findings of the Court of
Appeals are contrary to those of the trial court. 52 The lower court
ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave
the party as she talked to him politely and discreetly. The appellate
court, on the other hand, held that Ms. Lim is liable for damages as
she needlessly embarrassed Mr. Reyes by telling him not to finish his
food and to leave the place within hearing distance of the other
guests. Both courts, however, were in agreement that it was Dr.
Filart’s invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the
lower court’s findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,53 for-
invitation-only, thrown for the hotel’s former Manager, a Japanese
national. Then came a person who was clearly uninvited (by the
celebrant)54 and who could not just disappear into the crowd as his
face is known by many, being an actor. While he was already
spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was
aware of his presence. Ms. Lim, mindful of the celebrant’s
instruction to keep the party intimate, would naturally want to get
rid of the "gate-crasher" in the most hush-hush manner in order not
to call attention to a glitch in an otherwise seamless affair and, in
the process, risk the displeasure of the celebrant, her former boss.
To unnecessarily call attention to the presence of Mr. Reyes would
certainly reflect badly on Ms. Lim’s ability to follow the instructions
of the celebrant to invite only his close friends and some of the
hotel’s personnel. Mr. Reyes, upon whom the burden rests to prove
that indeed Ms. Lim loudly and rudely ordered him to leave, could
not offer any satisfactory explanation why Ms. Lim would do that
and risk ruining a formal and intimate affair. On the contrary, Mr.
Reyes, on cross-examination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she was very close. Close
enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while
you were at the buffet table? How close was she when she
approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and
she shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba
ka na lang."
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many.55
In the absence of any proof of motive on the part of Ms. Lim to
humiliate Mr. Reyes and expose him to ridicule and shame, it is
highly unlikely that she would shout at him from a very close
distance. Ms. Lim having been in the hotel business for twenty years
wherein being polite and discreet are virtues to be emulated, the
testimony of Mr. Reyes that she acted to the contrary does not
inspire belief and is indeed incredible. Thus, the lower court was
correct in observing that –
Considering the closeness of defendant Lim to plaintiff when the
request for the latter to leave the party was made such that they
nearly kissed each other, the request was meant to be heard by him
only and there could have been no intention on her part to cause
embarrassment to him. It was plaintiff’s reaction to the request that
must have made the other guests aware of what transpired between
them. . .
Had plaintiff simply left the party as requested, there was no need
for the police to take him out.56
Moreover, another problem with Mr. Reyes’s version of the story is
that it is unsupported. It is a basic rule in civil cases that he who
alleges proves. Mr. Reyes, however, had not presented any witness
to back his story up. All his witnesses – Danny Rodinas, Pepito
Guerrero and Alexander Silva - proved only that it was Dr. Filart who
invited him to the party.57
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the
party to which he was not invited, cannot be made liable to pay for
damages under Articles 19 and 21 of the Civil Code. Necessarily,
neither can her employer, Hotel Nikko, be held liable as its liability
springs from that of its employee.58
Article 19, known to contain what is commonly referred to as the
principle of abuse of rights,59 is not a panacea for all human hurts
and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.1awphi1.nét
Elsewhere, we explained that when "a right is exercised in a manner
which does not conform with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be responsible."60 The object of this
article, therefore, is to set certain standards which must be observed
not only in the exercise of one’s rights but also in the performance
of one’s duties.61 These standards are the following: act with justice,
give everyone his due and observe honesty and good faith. 62 Its
antithesis, necessarily, is any act evincing bad faith or intent to
injure. Its elements are the following: (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.63 When Article 19 is violated, an
action for damages is proper under Articles 20 or 21 of the Civil
Code. Article 20 pertains to damages arising from a violation of
law64 which does not obtain herein as Ms. Lim was perfectly within
her right to ask Mr. Reyes to leave. Article 21, on the other hand,
states:
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
Article 2165 refers to acts contra bonus mores and has the following
elements: (1) There is an act which is legal; (2) but which is contrary
to morals, good custom, public order, or public policy; and (3) it is
done with intent to injure.66
A common theme runs through Articles 19 and 21,67 and that is, the
act complained of must be intentional.68
As applied to herein case and as earlier discussed, Mr. Reyes has not
shown that Ms. Lim was driven by animosity against him. These two
people did not know each other personally before the evening of 13
October 1994, thus, Mr. Reyes had nothing to offer for an
explanation for Ms. Lim’s alleged abusive conduct except the
statement that Ms. Lim, being "single at 44 years old," had a "very
strong bias and prejudice against (Mr. Reyes) possibly influenced by
her associates in her work at the hotel with foreign
businessmen."69 The lameness of this argument need not be
belabored. Suffice it to say that a complaint based on Articles 19 and
21 of the Civil Code must necessarily fail if it has nothing to
recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to
leave was likewise acceptable and humane under the circumstances.
In this regard, we cannot put our imprimatur on the appellate
court’s declaration that Ms. Lim’s act of personally approaching Mr.
Reyes (without first verifying from Mrs. Filart if indeed she invited
Mr. Reyes) gave rise to a cause of action "predicated upon mere
rudeness or lack of consideration of one person, which calls not only
protection of human dignity but respect of such dignity."70 Without
proof of any ill-motive on her part, Ms. Lim’s act of by-passing Mrs.
Filart cannot amount to abusive conduct especially because she did
inquire from Mrs. Filart’s companion who told her that Mrs. Filart
did not invite Mr. Reyes.71 If at all, Ms. Lim is guilty only of bad
judgment which, if done with good intentions, cannot amount to
bad faith.
Not being liable for both actual and moral damages, neither can
petitioners Lim and Hotel Nikko be made answerable for exemplary
damages72 especially for the reason stated by the Court of Appeals.
The Court of Appeals held –
Not a few of the rich people treat the poor with contempt because
of the latter’s lowly station in life.l^vvphi1.net This has to be limited
somewhere. In a democracy, such a limit must be established. Social
equality is not sought by the legal provisions under consideration,
but due regard for decency and propriety (Code Commission, pp. 33-
34). And by way of example or correction for public good and to
avert further commission of such acts, exemplary damages should
be imposed upon appellees.73
The fundamental fallacy in the above-quoted findings is that it runs
counter with the very facts of the case and the evidence on
hand.l^vvphi1.net It is not disputed that at the time of the incident
in question, Mr. Reyes was "an actor of long standing; a co-host of a
radio program over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda Papin; a
showbiz Coordinator of Citizen Crime Watch; and 1992 official
candidate of the KBL Party for Governor of Bohol; and an awardee of
a number of humanitarian organizations of the Philippines."74 During
his direct examination on rebuttal, Mr. Reyes stressed that he had
income75 and nowhere did he say otherwise. On the other hand, the
records are bereft of any information as to the social and economic
standing of petitioner Ruby Lim. Consequently, the conclusion
reached by the appellate court cannot withstand scrutiny as it is
without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any
damage which Mr. Reyes might have suffered through Ms. Lim’s
exercise of a legitimate right done within the bounds of propriety
and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim
and Nikko Hotel Manila Garden is GRANTED. The Decision of the
Court of Appeals dated 26 November 2001 and its Resolution dated
09 July 2002 are hereby REVERSED and SET ASIDE. The Decision of
the Regional Trial Court of Quezon City, Branch 104, dated 26 April
1999 is hereby AFFIRMED. No costs.
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.
Sought to be reversed in this petition is the Decision * of the
respondent Court of Appeals' First Division, setting aside the
judgment of the then Court of First Instance (CFI) of Ilocos Norte,
with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and
another rendered in its stead whereby defendant is hereby
sentenced to pay plaintiffs actual damages of P30,229.45;
compensatory damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in
both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties
strive for the recognition of their respective versions of the scenario
from which the disputed claims originate. The respondent Court of
Appeals (CA) summarized the evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June
28 until the early morning of June 29, 1967 a strong typhoon by the
code name "Gening" buffeted the province of Ilocos Norte, bringing
heavy rains and consequent flooding in its wake. Between 5:30 and
6:00 A.M. on June 29, 1967, after the typhoon had abated and when
the floodwaters were beginning to recede the deceased Isabel Lao
Juan, fondly called Nana Belen, ventured out of the house of her
son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City,
and proceeded northward towards the direction of the Five Sisters
Emporium, of which she was the owner and proprietress, to look
after the merchandise therein that might have been damaged.
Wading in waist-deep flood on Guerrero, the deceased was followed
by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by
the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ
Cinema, which was partly owned by the deceased. Aida and Linda
walked side by side at a distance of between 5 and 6 meters behind
the deceased, Suddenly, the deceased screamed "Ay" and quickly
sank into the water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot where the
deceased sank they saw an electric wire dangling from a post and
moving in snake-like fashion in the water. Upon their shouts for
help, Ernesto dela Cruz came out of the house of Antonio Yabes.
Ernesto tried to go to the deceased, but at four meters away from
her he turned back shouting that the water was grounded. Aida and
Linda prodded Ernesto to seek help from Antonio Yabes at the YJ
Cinema building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in
law had been electrocuted, he acted immediately. With his wife
Jane, together with Ernesto and one Joe Ros, Yabes passed by the
City Hall of Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to cut off the
electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house
were out indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body of the
deceased. The body was recovered about two meters from an
electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29,
1967, Engineer Antonio Juan, Power Plant Engineer of the National
Power Corporation at the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such
abnormalities as grounded or short-circuited lines. Between 6:00
and 6:30 A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected lines.
Electric lines were hanging from the posts to the ground. Since he
could not see any INELCO lineman, he decided to go to the INELCO
Office at the Life Theatre on Rizal Street by way of Guerrero. As he
turned right at the intersection of Guerrero and Rizal, he saw an
electric wire about 30 meters long strung across the street "and the
other end was seeming to play with the current of the water." (p. 64,
TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and
seeing no lineman therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on
another inspection trip. Having learned of the death of Isabel Lao
Juan, he passed by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body had been
taken. Using the resuscitator which was a standard equipment in his
jeep and employing the skill he acquired from an in service training
on resuscitation, he tried to revive the deceased. His efforts proved
futile. Rigor mortis was setting in. On the left palm of the deceased,
Engr. Juan noticed a hollow wound. Proceeding to the INELCO
Office, he met two linemen on the way. He told them about the
grounded lines of the INELCO In the afternoon of the same day, he
went on a third inspection trip preparatory to the restoration of
power. The dangling wire he saw on Guerrero early in the morning
of June 29, 1967 was no longer there.Many people came to the
house at the corner of Guerrero and M.H. del Pilar after learning
that the deceased had been electrocuted. Among the sympathizers
was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos
Norte. Upon the request of the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on June 29, 1967. The skin
was grayish or, in medical parlance, cyanotic, which indicated death
by electrocution. On the left palm, the doctor found an "electrically
charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first
degree burn. About the base of the thumb on the left hand was a
burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death
prepared by Dr. Castro stated the cause of' death as ,'circulatory
shock electrocution" (Exh. I; p. 103, Ibid.).In defense and
exculpation, defendant presented the testimonies of its officers and
employees, namely, Conrado Asis, electric engineer; Loreto Abijero,
collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili,
president-manager of INELCO Through the testimonies of these
witnesses, defendant sought to prove that on and even before June
29, 1967 the electric service system of the INELCO in the whole
franchise area, including Area No. 9 which covered the residence of
Antonio Yabes at No. 18 Guerrero Street, did not suffer from any
defect that might constitute a hazard to life and property. The
service lines, devices and other INELCO equipment in Area No. 9 had
been newly-installed prior to the date in question. As a public
service operator and in line with its business of supplying electric
current to the public, defendant had installed safety devices to
prevent and avoid injuries to persons and damage to property in
case of natural calamities such as floods, typhoons, fire and others.
Defendant had 12 linesmen charged with the duty of making a
round-the-clock check-up of the areas respectively assigned to
them.Defendant asserts that although a strong typhoon struck the
province of Ilocos Norte on June 29, 1967, putting to streets of
Laoag City under water, only a few known places in Laoag were
reported to have suffered damaged electric lines, namely, at the
southern approach of the Marcos Bridge which was washed away
and where the INELCO lines and posts collapsed; in the eastern part
near the residence of the late Governor Simeon Mandac; in the far
north near the defendant's power plant at the corner of Segundo
and Castro Streets, Laoag City and at the far northwest side, near
the premises of the Ilocos Norte National High School. Fabico
Abijero, testified that in the early morning before 6 o'clock on June
29, 1967 he passed by the intersection of Rizal and Guerrero Streets
to switch off the street lights in Area No. 9. He did not see any cut or
broken wires in or near the vicinity. What he saw were many people
fishing out the body of Isabel Lao Juan.A witness in the person of Dr.
Antonio Briones was presented by the defense to show that the
deceased could not have died of electrocution Substantially, the
testimony of the doctor is as follows: Without an autopsy on the
cadaver of the victim, no doctor, not even a medicolegal expert, can
speculate as to the real cause of death. Cyanosis could not have
been found in the body of the deceased three hours after her death,
because cyanosis which means lack of oxygen circulating in the
blood and rendering the color of the skin purplish, appears only in a
live person. The presence of the elongated burn in the left palm of
the deceased (Exhibits C-1 and C-2) is not sufficient to establish her
death by electrocution; since burns caused by electricity are more or
less round in shape and with points of entry and exit. Had the
deceased held the lethal wire for a long time, the laceration in her
palm would have been bigger and the injury more massive. (CA
Decision, pp. 18-21, Rollo)An action for damages in the aggregate
amount of P250,000 was instituted by the heirs of the deceased with
the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on
Appeal, p. 55, Rollo), petitioner advanced the theory, as a special
defense, that the deceased could have died simply either by
drowning or by electrocution due to negligence attributable only to
herself and not to petitioner. In this regard, it was pointed out that
the deceased, without petitioner's knowledge, caused the
installation of a burglar deterrent by connecting a wire from the
main house to the iron gate and fence of steel matting, thus,
charging the latter with electric current whenever the switch is on.
Petitioner then conjectures that the switch to said burglar deterrent
must have been left on, hence, causing the deceased's electrocution
when she tried to open her gate that early morning of June 29, 1967.
After due trial, the CFI found the facts in favor of petitioner and
dismissed the complaint but awarded to the latter P25,000 in moral
damages and attorney's fees of P45,000. An appeal was filed with
the CA which issued the controverted decision.In this petition for
review the petitioner assigns the following errors committed by the
respondent CA:
1. The respondent Court of Appeals committed grave abuse of
discretion and error in considering the purely hearsay alleged
declarations of Ernesto de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed grave abuse of
discretion and error in holding that the strong typhoon "Gening"
which struck Laoag City and Ilocos Norte on June 29, 1967 and the
flood and deluge it brought in its wake were not fortuitous events
and did not exonerate petitioner-company from liability for the
death of Isabel Lao Juan.3. The respondent Court of Appeals gravely
abused its discretion and erred in not applying the legal principle of
"assumption of risk" in the present case to bar private respondents
from collecting damages from petitioner company.4. That the
respondent Court of Appeals gravely erred and abused its discretion
in completely reversing the findings of fact of the trial court.5. The
findings of fact of the respondent Court of Appeals are reversible
under the recognized exceptions.6. The trial court did not err in
awarding moral damages and attorney's fees to defendant
corporation, now petitioner company.7. Assuming arguendo that
petitioner company may be held liable from the death of the late
Isabel Lao Juan, the damages granted by respondent Court of
Appeals are improper and exhorbitant. (Petitioners Memorandum,
p. 133, Rollo)Basically, three main issues are apparent: (1) whether
or not the deceased died of electrocution; (2) whether or not
petitioner may be held liable for the deceased's death; and (3)
whether or not the respondent CA's substitution of the trial court's
factual findings for its own was proper.In considering the first issue,
it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show
that the deceased died of electrocution, a conclusion which can be
primarily derived from the photographed burnt wounds (Exhibits
"C", "C-1", "C-2") on the left palm of the former. Such wounds
undoubtedly point to the fact that the deceased had clutched a live
wire of the petitioner. This was corroborated by the testimony of Dr.
Jovencio Castro who actually examined the body of the deceased a
few hours after the death and described the said burnt wounds as a
"first degree burn" (p. 144, TSN, December 11, 1972) and that they
were "electrically charged" (p. 102, TSN, November 28, 1972).
Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong
added that after the deceased screamed "Ay" and sank into the
water, they tried to render some help but were overcome with fear
by the sight of an electric wire dangling from an electric post,
moving in the water in a snake-like fashion (supra). The foregoing
therefore justifies the respondent CA in concluding that "(t)he
nature of the wounds as described by the witnesses who saw them
can lead to no other conclusion than that they were "burns," and
there was nothing else in the street where the victim was wading
thru which could cause a burn except the dangling live wire of
defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory
that the deceased was electrocuted, if such was really the case when
she tried to open her steel gate, which was electrically charged by an
electric wire she herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch to said burglar alarm
was left on. But this is mere speculation, not backed up with
evidence. As required by the Rules, "each party must prove his own
affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA
significantly noted that "during the trial, this theory was abandoned"
by the petitioner (CA Decision, p. 23, Rollo).Furthermore the CA
properly applied the principle of res gestae. The CA said:Linda
Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were
with the deceased during that fateful morning of June 29, 1967. This
Court has not been offered any sufficient reason to discredit the
testimonies of these two young ladies. They were one in the
affirmation that the deceased, while wading in the waist-deep flood
on Guerrero Street five or six meters ahead of them, suddenly
screamed "Ay" and quickly sank into the water. When they
approached the deceased to help, they were stopped by the sight of
an electric wire dangling from a post and moving in snake-like
fashion in the water. Ernesto dela Cruz also tried to approach the
deceased, but he turned back shouting that the water was
grounded. These bits of evidence carry much weight. For the subject
of the testimonies was a startling occurrence, and the declarations
may be considered part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following
requisites must be present: (1) that the principal act, the res gestae,
be a startling occurrence; (2) that the statements were made before
the declarant had time to contrive or devise; (3) that the statements
made must concern the occurrence in question and its immediately
attending circumstances (People vs. Ner, 28 SCRA 1151; People vs.
Balbas, 122 SCRA 959). We do not find any abuse of discretion on
the CA' part in view of the satisfaction of said requisites in the case
at bar.The statements made relative to the startling occurrence are
admitted in evidence precisely as an exception to the hearsay rule
on the grounds of trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley vs. State, 53
Ala. 182), and "necessity" because such natural and spontaneous
utterances are more convincing than the testimony of the same
person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the
fact that the declarant, Ernesto de la Cruz, was not presented to
testify does not make the testimony of Linda Alonzo Estavillo and
Aida Bulong hearsay since the said declaration is part of the res
gestae. Similarly, We considered part of the res gestae a
conversation between two accused immediately after commission of
the crime as overheard by a prosecution witness (People vs. Reyes,
82 Phil. 563).While it may be true that, as petitioner argues (vide
petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not
an actual witness to the instant when the deceased sank into the
waist-deep water, he acted upon the call of help of Aida Bulong and
Linda Alonzo Estavillo with the knowledge of, and immediately after,
the sinking of the deceased. In fact the startling event had not yet
ceased when Ernesto de la Cruz entered the scene considering that
the victim remained submerged. Under such a circumstance, it is
undeniable that a state of mind characterized by nervous
excitement had been triggered in Ernesto de la Cruz's being as
anybody under the same contingency could have experienced. As
such, We cannot honestly exclude his shouts that the water was
grounded from the res gestae just because he did not actually see
the sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of
Ernesto de la Cruz. While We concede to the submission that the
statement must be one of facts rather than opinion, We cannot
agree to the proposition that the one made by him was a mere
opinion. On the contrary, his shout was a translation of an actuality
as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz'
testimony was suppressed by the private respondents, thus, is
presumed to be adverse to them pursuant to Section 5(e), Rule 131.
For the application of said Rule as against a party to a case, it is
necessary that the evidence alleged to be suppressed is available
only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil.
953). The presumption does not operate if the evidence in question
is equally available to both parties (StaplesHowe Printing Co. vs.
Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that
petitioner could have called Ernesto de la Cruz to the witness stand.
This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's
counsel when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of
the house?A. Well, you can ask that matter from him sir because he
is here. (TSN, p. 30, 26 Sept. 1972)The foregoing shows that
petitioner had the opportunity to verify the declarations of Ernesto
de la Cruz which, if truly adverse to private respondent, would have
helped its case. However, due to reasons known only to petitioner,
the opportunity was not taken.Coming now to the second issue, We
tip the scales in the private respondents' favor. The respondent CA
acted correctly in disposing the argument that petitioner be
exonerated from liability since typhoons and floods are fortuitous
events. While it is true that typhoons and floods are considered Acts
of God for which no person may be held responsible, it was not said
eventuality which directly caused the victim's death. It was through
the intervention of petitioner's negligence that death took place. We
subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the
electrocution and consequent death of the late Isabel Lao Juan,
defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence
and to negate the charge of negligence. The witnesses testified in a
general way about their duties and the measures which
defendant 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.
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.
Easler v. HEJAZ TEMPLE OF GREENVILLE, SC
Annotate this Case
285 S.C. 348 (1985)
329 S.E.2d 753
George Blanton EASLER, Respondent, v. HEJAZ TEMPLE A. .A. .O. .N.
.M. .S..OF GREENVILLE, S.C. an unincorporated association; and The
Imperial Council of the Nobles of the Mystic Shrine of North
America, an Iowa Corporation, Appellants. Janice G. EASLER,
Respondent, v. HEJAZ TEMPLE A..A. .O. .N. .M. .S. .OF GREENVILLE,
S.C. an unincorporated association; and The Imperial Council of the
Nobles of the Mystic Shrine of North America, an Iowa Corporation,
Appellants.
22300
Supreme Court of South Carolina.
Heard March 12, 1985.
Decided April 25, 1985.
*349 *350 William M. Grant, Jr., W. Benjamin McClain, Jr., and O.G.
Calhoun, all of Haynsworth, Perry, Bryant, Marion & Johnstone,
Greenville, for appellants.
J. Bruce Foster; George F. Abernathy and Billy C. Terry, both of
Odom, Terry, Abernathy & Cantrell; and Ben C. Harrison of Burts,
Turner, Hammett, Harrison & Rhodes, all of Spartanburg, for
respondents.
Heard March 12, 1985.
Decided April 25, 1985.
CHANDLER, Justice:
Hejaz Temple A. .A. .O. .N. .M. .S. .(Hejaz) and the Imperial Council of
the Nobles of the Mystic Shrine of North America (Council) appeal
from jury verdicts received by Respondent George Blanton Easler
(Easler) for actionable negligence, and by Easler's wife (Wife) for loss
of consortium.
We affirm.
BACKGROUND FACTS
Easler, a candidate for Hejaz membership, was injured during a
"hazing" event which was part of initiation ceremonies.
The event directly involved is known as the "mattress-rotating barrel
trick." It requires each candidate to slide down an eight to nine foot
high metal board onto mattresses which, with connecting
mattresses, lead to a barrel over which the candidate is required to
climb. Members of Hejaz stand on each side of the mattresses and
barrel and funpaddle candidates enroute to the barrel, and assist
those who fall.
*351 While negotiating this event Easler tripped and, instead of
surmounting the barrel, fell headlong into it, causing a damage-
producing neck injury.
At the conclusion of a five-day trial Easler received a verdict of
$361,800.00, and Wife a verdict of $37,500.00.
ISSUES
Summarizing the exceptions, Hejaz and Council contend:
(1) Easler's own negligence was the sole proximate cause of his
injury. (2) Easler assumed the risk. (3) Hejaz is an unincorporated
association, so that Easler, as a member of the association, is barred
from recovery. (4) Hejaz was not the agent of Council. (5) The
testimony of D.W. Bradbury was inadmissible. (6) The testimony of
Richard Petty was inadmissible. (7) The verdicts were excessive. I.
NEGLIGENCE AND PROXIMATE CAUSE
Hejaz and Council contend that the record contains no evidence of
actionable negligence on their part and that Easler's own negligence
solely caused his injury. We disagree.
The evidence discloses that the mattresses leading to the barrel
were stacked two deep, not fastened to the floor and were loosely
connected. When a candidate completed his slide onto the first set
of mattresses, the abutting mattresses would rise, creating an
unevenness which contributed to tripping. It was testified that this
condition was easily correctible: the mattresses could have been
fastened to the floor, securely connected and a single canvas placed
over them.
It is elementary that when more than one reasonable inference may
be drawn from the evidence the matter is one for the jury, not the
court and, further, that motions asserting the absence of any
negligence must be viewed in the light most favorable to the party
against whom made. Mahaffey v. Ahl, 264 S.C. 241, 246, 214 S.E.
(2d) 119 (1975), citing Cantrell v. Carruth, 250 S.C. 415, 418, 158 S.E.
(2d) 208 (1967).
*352 Here, the jury was entitled to find that the manner in which
Hejaz carried out the "mattress-rotating barrel trick" was hazardous
and constituted actionable negligence.
II. ASSUMPTION OF RISK
Hejaz and Council contend that Easler is barred from recovery by the
doctrine of assumption of risk. We disagree.
The decisions of our Court hold uniformly that, in order for the
doctrine to apply and bar recovery, the injured party must have
"freely and voluntarily exposed [him]self to a known danger of
which [he] understood and appreciated the danger." King v. Daniel
International Corporation, 278 S.C. 350, 354, 296 S.E. (2d) 335
(1982); Canady v. Martschink Beer Distributors, Inc., 255 S.C. 119,
177 S.E. (2d) 475 (1970); Turner v. Sinclair Refining Company, 254
S.C. 36, 173 S.E. (2d) 356 (1970).
The record contains sufficient evidence from which the jury could
conclude that the danger which brought about his injury was not
understood and appreciated by Easler. For example, the effect of
the unevenness of the connecting mattresses was testified to by
Walter Johnson, a witness for Easler:
Q. Mr. Johnson, did you see what Mr. Easler tripped on? A. The
mattress. Yes, I saw him. Q. You saw his foot catch on it? A. Yes,
when he stepped at or near between the two (2) mattresses, one (1)
went down and his foot tripped on the mattress. [Emphasis
supplied.]
Hejaz and Council rely upon House v. European Health Spa, 269 S.C.
64, 239 S.E. (2d) 653 (1977). In House the evidence was undisputed
that the plaintiff exposed herself to a risk of which she was fully
aware. Here, while Easler was aware that he was participating in a
hazing type activity, the jury could find from the evidence that his
knowledge did not extend to a danger understood and appreciated
by him.
House is not applicable here.
*353 III. MEMBER OF UNINCORPORATED ASSOCIATION
Hejaz contends that Easler, as a member himself of the association,
was engaged in a joint and common enterprise which bars him from
recovery.
Directed verdict and judgment n.o.v. motions by Hejaz on this issue
were properly refused by the trial judge, as the testimony relating to
Easler's membership status at the time of injury was in conflict.
Likewise, the trial judge properly refused to charge the jury that
members of an unincorporated association may not recover from
the association for tortious conduct of other association members.
While this may be a correct statement of law, such a charge here
presumes that Easler was officially a member at the time of injury,
an evidentiary fact in dispute.
Accordingly, this exception is without merit.
IV. AGENCY OF HEJAZ
Hejaz and Council contend that, as a matter of law, Hejaz was not
the agent of Council. We disagree. "The test to determine agency is
whether or not the purported principal has the right to control the
conduct of his alleged agent." Fernander v. Thigpen, 278 S.C. 140,
144, 293 S.E. (2d) 424 (1982).
When Fernander is applied to the evidence here, it becomes patent
that directed verdict and judgment n.o.v. motions were correctly
denied. Based upon the record the trial judge stated in his order,
and understandably, that "the evidence presented was not so clear
and convincing that the court probably should have held as a matter
of law that Hejaz Temple was an agent of the Imperial Council."
The jury's finding on agency is supported by substantial evidence,
typical of which is the testimony of witness Jack Tyner, a former
potentate and present treasurer of Hejaz Temple:
A. ... I served as potentate in 1969, which the previous five (5) years I
had served up the ladder. In 1973, I was elected Treasurer, and I've
been Treasurer ever since. *354 Q. You are Treasurer of Hejaz Shrine
Temple? A. Yes. Q. Now, what does the word "Potentate" imply, or
what are the responsibilities of the Potentate? A. The Potentate is
responsible for the government of Hejaz Shrine Temple for his year
as Potentate. Q. And he is responsible to the national organization?
A. Yes. * * * * * * Q. Mr. Tyner, what control does the national
organization have over Hejaz Shrine Temple and how does it
exercise that control?
A. We're governed by a set of by-laws.
Q. Are a copy of those here today?
A. Yes, there's a copy here.
Q. And you're talking about the by-laws of the national corporation.
A. Yes.
Q. And are there articles of incorporation for the national
corporation?
A. Yes.
* * * * * * Q. Let me ask you, Mr. Tyner, if you will, just tell us who
decides the location of a temple?
A. The Imperial Council.
Q. The Imperial Council.
A. Yes.
Q. Can you move your temple without their permission?
A. No, sir.
Q. Who decides on the qualifications of a member of Hejaz Temple?
A. The Imperial Council and its representatives.
Q. Who decides how many meetings you will have a year and when
you can call a special meeting?
A. The Imperial Council.
Q. Who decides the method by which you ballot on candidates for
admission?
A. The same.
Q. Who decides on the qualifications of the officers?
A. The Imperial Council. [Emphasis supplied].
*355 V. TESTIMONY OF WITNESS BRADBURY
Over objection of Hejaz and Council the trial judge admitted the
expert witness testimony of D.W. Bradbury concerning Hejaz's
negligence.
Bradbury, a professor at Clemson University, holds undergraduate
and master's degrees in mechanical engineering. Since 1948 he has
also been a consultant in design of buildings and structures,
including floors, walks and steps. He teaches safety engineering.
The objection is addressed, not to Bradbury's qualification, but to
the claim that his testimony relates to a matter of common
knowledge and is not, therefore, a proper subject for expert
testimony. We disagree.
The "mattress-rotating barrel trick" involves slides, connecting
mattresses, barrels, running, distances and climbing, and the
manner in which each contributes to the procedure. Expert
testimony was clearly relevant to the issue of safety.
Mr. Bradbury, in answer to a hypothetical question, the form of
which has been approved by this Court, testified that the trick, as
required to be performed, was dangerous. He then described in
detail the reasons for his opinion and steps which should have been
taken to make it safe.
The testimony was competent and properly admitted.
VI. TESTIMONY OF WITNESS PETTY
Hejaz and Council contend the trial judge erred in admitting the
expert testimony of Richard Petty, a witness presented by Easler on
the issue of damages. They assert that Petty lacked qualification as
an expert in the area about which he testified. We disagree.
Petty's challenged testimony related to future damages, current
interest yields and inflation rates.
The record discloses that Petty holds a college B.S. degree in
marketing and business; that he worked in production planning and
marketing with Milliken and Company for six years; that the
business firm he now owns engages in financial and estate planning
and in the sale of annuities; that he works with the trust
departments of all Spartanburg banks in financial planning for the
future.
The trial judge found correctly that Petty was qualified as an expert
to testify upon the issue of damages.
*356 VII. EXCESSIVENESS OF VERDICTS
Finally, Hejaz and Council contend that the verdicts were contrary to
the preponderance of the evidence, entitling them to a new trial
absolute or, in the alternative to a new trial nisi, in that they were
the result of bias, prejudice, caprice or passion, or other
consideration not founded upon the evidence. We disagree.
When verdicts are challenged as excessive, this Court has
distinguished between those unduly liberal and those actuated by
passion, caprice or prejudice.
(1) The unduly liberal verdict:
Where the verdict is deemed excessive by the trial judge, in the
sense that it indicates merely undue liberality on the part of the jury,
the trial judge alone has the power, and with it the responsibility, of
setting aside the verdict absolutely or reducing it by the granting of a
new trial nisi. [Emphasis supplied].
Young v. Warr, 252 S.C. 179, 187, 165 S.E. (2d) 797 (1969), citing
Gray v. Davis, 247 S.C. 536, 148 S.E. (2d) 682 (1966).
(2) The verdict actuated by passion, caprice or prejudice: It is only
when the verdict is so grossly excessive and the amount awarded so
shockingly disproportionate to the injuries as to indicate that the
jury was moved or actuated by passion, caprice, prejudice, or other
consideration not found on the evidence that it becomes the duty of
this court, as well as of the trial court, to set aside the verdict
absolutely.
Young, supra, citing Ray v. Simon, 245 S.C. 346, 140 S.E. (2d) 575
(1965).
Accordingly, this Court will not set aside a verdict for its possibly
undue liberality.
Nor do we find abuse of discretion by the trial judge, amounting to
error of law, in refusing to set the verdict aside absolutely. When the
record is reviewed, this verdict, assuming its liberality, is not so
excessive as to indicate that the jury was actuated by passion,
caprice or prejudice.
At the time of injury Easler, age 37 and father of four children, was a
carpenter-construction contractor in good *357 health with annual
earnings averaging over $15,000.00 for the preceding five years. Dr.
Darwin Keller, testifying for Hejaz as a neurosurgeon specialist,
described him as a good athlete, "outstanding" softball player and
"diligent family man." His life expectancy was over 37 years.
The injury to Easler's neck was severe, resulting in a displacement
forward of cervical vertebra number six (C-6) beyond number seven
(C-7). When he failed to respond to conservative therapy a fusion of
cervical vertebrae six and seven was performed. He has considerable
limitation of motion and, according to medical witnesses, will be
restricted in his activities as a carpenter. The pain from which he
suffers is aggravated and intensified by neck movement.
Dr. Ballenger, to whom Easler was referred by Dr. Keller, was not
called as a witness. However, on cross-examination Dr. Keller
testified that he was given a written opinion by Dr. Ballenger that
Easler had suffered a spinal cord injury.
Although not interpreted on initial x-rays, Dr. John Featherstone, a
specialist in radiology, testified that Easler's injury included a small
fracture of thoracic vertebra number one (T-1).
Easler's injury is described graphically by Dr. J.A. McCarthy,
orthopedic surgeon:
Q. What is your opinion as to the problems that Mr. Easler will have
with his neck in the future? A. First of all, I think the man already has
a serious problem. He has severe loss of motion. He has severe
degrees of pain. Any stress situation that requires the neck, the pain
is going to be worse. This exists right now. And as far as I am
concerned, it just about incapacitates him from doing most
anything, be it work or play or what-have-you ... And, hence, he's
going to develop rather severe arthritic changes in the neck at a
fairly rapid rate which is going to lead to further pain and even
further limitation of his motion. Q. In your opinion will Mr. Easler
ever be able to engage in gainful employment? A. ... I can only state
that he, in my opinion, is severely impaired and thereby is limited
severely in what job activities he can do from an orthopedic
standpoint.
*358 The effect of the injury upon Easler's future employment was
addressed directly by expert witness Dr. Benson Hecher, a
consultant in vocational testing and job placement:
Q. Would you tell us what that opinion is? A. Based on Mr. Easler's
age, his condition, work history, transferable skills and medical
records it is my opinion that Mr. Easler is unable to perform any
substantial gainful work activity in open competition with others.
Finally, the injury has resulted in psychiatric problems, requiring the
treatment of a specialist in that field. According to Dr. Robert Ford,
Easler suffers from depression, secondary to situational pressures,
including financial problems brought on by his inability to work. He
will, in Dr. Ford's opinion, require treatment in the future "[a]t least
over several years."
With reference to Wife's action for loss of consortium, Hejaz's
contention that it is based upon insufficient evidence is without
merit.
CONCLUSION
It was for the jury to weigh the evidence, determine witness
credibility and reach a verdict. A search of the entire record reveals
nothing to suggest that any party failed to receive a fair and
impartial trial.
Affirmed.
G.R. No. L-6092 March 8, 1912
TAN CHIONG SIAN, plaintiff-appellee,
vs.INCHAUSTI AND CO., defendant-appellant.
This is an appeal through bill of exceptions, by counsel for the firm
of Inchausti & Co., from a judgment rendered by the Honorable A.S.
Crossfield, judge.
On January 11, 1909, the Chinaman, Tan Chiong Sian or Tan Chinto,
filed a written complaint, which was amended on the 28th of the
same month and again amended on October 27 of the same year,
against the said firm, wherein he alleged, among other things, as a
cause of action: That, on or about November 25, 1908, the plaintiff
delivered to the defendant 205 bundles or cases of general
merchandise belonging to him, which Inchausti & Co., upon
receiving, bound themselves to deliver in the pueblo of Catarman,
Province of Samar, to the Chinaman, Ong Bieng Sip, and in
consideration of the obligations contracted by the defendant party,
the plaintiff obligated himself to pay to the latter the sum of P250
Philippine currency, which payment should be made upon the
delivery of the said merchandise in the said pueblo Catarman; but
that the defendant company neither carried nor delivered the
aforementioned merchandise to the said Ong Bieng Sip, in
Catarman, but unjustly and negligently failed to do so, with the
result that the said merchandise was almost totally lost; that, had
the defendant party complied well and faithfully with its obligation,
according to the agreement made, the merchandise concerned
would have a value of P20,000 in the said pueblo of Catarman on the
date when it should have been delivered there, wherefore the
defendant party owed the plaintiff the said sum of P20,000, which it
had not paid him, or any part thereof, notwithstanding the many
demands of the plaintiff; therefore the latter prayed for judgment
against the defendant for the said sum, together with legal interest
thereon from November 25, 1908, and the costs of the suit.
Counsel for the defendant company, in his answer, set forth, that he
admitted the allegations of paragraphs 1 and 2 of the complaint,
amended for the second time, and denied those paragraphs 3, 4, 5,
6 and 7 of the same. As his first special defense, he alleged that on
or about November 28, 1908, his client, the said firm, received in
Manila from Ong Bieng Sip 205 bundles, bales, or cases of
merchandise to be placed on board the steamer Sorsogon,
belonging to the defendant, for shipment to the port of Gubat,
Province of Sorsogon, to be in the said port transshipped into
another of the defendant's vessels for transportation to the port of
Catarman, Samar, and delivered to the aforesaid Chinaman, Ong
Bieng Sip; that the defendant company, upon receiving the said
merchandise from the latter, Ong Bieng Sip, and on its entering into
a contract of maritime transportation with him did not know and
was not notified that the plaintiff, Tan Chiong Sian, had any interest
whatever in the said merchandise and had made with the plaintiff
no contract relative to the transportation of such goods, for, on
receiving the latter from the said Ong Bieng Sip, for transportation,
there were made out and delivered to him three bills of lading, Nos.
38, 39 and 76, which contained a list of the goods received and,
printed on the back thereof were the terms of the maritime
transportation contract entered into by and between the plaintiff
and the defendant company, copies of which bills of lading and
contract, marked as Exhibits A, B, and C, are of record, attached to
and made an integral part of the said answer; that Ong Bieng Sip
accepted the said bills of lading and the contract extended on the
backs thereof; that the merchandise mentioned was put on board
the steamer Sorsogon and carried to the port of Gubat, Province of
Sorsogon, where this vessel arrived on November 28, 1908, on
which date the lorcha Pilar, into which the said merchandise was to
be transshipped for carriage to Catarman, was not at Gubat, and
therefore the goods had to be unloaded and stored in the defendant
company's warehouses at Gubat; that, on the 4th of December of
the same year, the lorcha Pilar arrived at Gubat and, after the
termination of certain necessary work, the goods received from
Chinaman, Ong Bieng Sip, were taken aboard the same, together
with other merchandise belonging to the defendant party, for the
purpose of transportation to the port of Catarman; that, before the
said lorcha could leave for its destination, a strong wind arose which
in the course of the day increased in force until, early in the morning
of the following day, the lorcha was dragged and driven, by the force
of the storm, upon the shore, despite the means employed by the
crew to avoid the accident, and notwithstanding the five anchors
that held the craft, which was thus wrecked and completely
destroyed and the merchandise with which it was laden, including
the 205 bundles or packages taken aboard for the said Chinaman,
was scattered on the shore; that, on the occasion, the lorcha
Pilar was in good condition, provided with all the proper and
necessary equipment and accessories and carried a crew of
sufficient number in command of a skillful patron or master,
wherefore the wreck of the said craft was solely due to the
irresistible force of the elements and of the storm which drove it
upon the shore; that the defendant company, with the greatest
possible diligence, gathered up the said shipwrecked goods that had
been shipped by the Chinaman, Ong Bieng Sip, but, owing to the
damage they had suffered, it was impossible to preserve them, so,
after having offered to deliver them to him, the defendant
proceeded, in the presence of a notary, to sell them at public
auction and realized from the sale thereof P1,693.67, the reasonable
value of the same in the condition in which they were after they had
been gathered up and salved from the wreck of the lorcha Pilar; that
the expenses occasioned by such salvage and sale of the said goods
amounted to P151.35, which were paid by the defendant party; that
the latter offered to the Chinese shipper, the plaintiff, the amount
realized from the sale of the said merchandise, less P151.35, the
amount of the expenses, and the sum of P250, the amount of the
freight stipulated, and is still willing to pay such products of the said
sale to the aforementioned Ong Bieng Sip or to any other person
who should establish his subrogation to the rights of the Chinaman,
Ong Bieng Sip, with respect to the said amount; that, as his client's
second special defense, the defendant company alleged that one of
the conditions of the shipping contract executed between it and the
Chinaman, Ong Bieng Sip, relative to the transportation of the said
merchandise, was that the said firm should not be held liable for
more than P25 for any bundle or package, unless the value of its
contents should be stated in the bill of lading, and that the shipper,
Chinaman, Ong Bieng Sip, did not state in the bill of lading the value
of any of the bundles or packages in which the goods shipped by him
were packed. Counsel for the defendant company, therefore, prayed
the court to absolve his client from the complaint, with costs against
the plaintiff.After the hearing of the case and the introduction of
testimony by the parties, judgment was rendered, on March 18,
1910, in favor of the plaintiff, Tan Chiong Sian or Tan Chinto, against
the defendant Inchausti and Co., for the sum of P14,642.63, with
interest at the rate of 6 per cent per annum from January 11, 1909,
and for the costs of the trial. The defendant party appealed from this
judgment.This suit was brought for the purpose of collecting a
certain sum which it is alleged the defendant firm owes the plaintiff
for losses and damages suffered by the latter as a result of the
former's noncompliance with the terms of an agreement or contract
to transport certain merchandise by sea from this city to the pueblo
of Catarman, Island of Samar, for the sum of P250.
The principal question to be determined is whether the defendant is
liable for the loss of the merchandise and for failure to deliver the
same at the place of destination, or whether he is relieved from
responsibility on the ground of force majeure.
Article 1601 of the Civil Code prescribes:
Carriers of goods by land or by water shall be subject with regard to
the keeping and preservation of the things entrusted to them, to the
same obligations as determined for innkeepers by articles 1783 and
1784.The provisions of this article shall be understood without
prejudice to what is prescribed by the Code of Commerce with
regard to transportation by sea and land.
Article 1602 reads:Carriers are also liable for the loss of and damage
to the things which they receive, unless they prove that the loss or
damage arose from a fortuitous event or force majeure.
The articles aforecited are as follows:ART. 1783. The depositum of
goods made by travelers in inns or hostelries shall also be
considered a necessary one. The keepers of inns and hostelries are
liable for them as such bailees, provided that notice thereof may
have been given to them or to their employees, and that the
travelers on their part take the precautions which said innkeepers or
their substitutes may have advised them concerning the care and
vigilance of said goods.ART. 1784. The liability referred to in the
preceding article shall include damages to the goods of the travelers
caused the servants or employees of the keepers for inns or
hostelries as well as by strangers, but not those arising from robbery
or which may be caused by any other case of force majeure.
Article 361 of the Code of Commerce provides:
Merchandise shall be transported at the risk and venture of the
shipper, unless the contrary was expressly stipulated.
Therefore, all damages and impairment suffered by the goods in
transportation, by reason of accident, force majeure, or by virtue of
the nature or defect of the articles, shall be for the account and risk
of the shipper.The proof of these accidents in incumbent on the
carrier.ART. 362. The carrier, however, shall be liable for the losses
and damages arising from the causes mentioned in the foregoing
article if it is proved that they occurred on account of his negligence
or because he did not take the precautions usually adopted by
careful persons, unless the shipper committed fraud in the bill of
lading, stating that the goods were of a class or quality different
from what they really were.If, notwithstanding the precaution
referred to in this article, the goods transported run the risk of being
lost on account of the nature or by reason of an unavoidable
accident, without there being time for the owners of the same to
dispose thereof, the carrier shall proceed to their sale, placing them
for this purpose at the disposal of the judicial authority or of the
officials determined by special provisions.ART. 363. With the
exception of the cases prescribed in the second paragraph of article
361, the carrier shall be obliged to deliver the goods transported in
the same condition in which, according to the bill of lading, they
were at the time of their receipt, without any detriment or
impairment, and should he not do so, he shall be obliged to pay the
value of the goods not delivered at the point where they should
have been and at the time the delivery should have taken place.If
part of the goods transported should be delivered the consignee
may refuse to receive them, when he proves that he can not make
use thereof without the others.On November 25, 1908, Inchausti &
Co. received in Manila from the Chinaman, Ong Bieng Sip, 205
bundles, bales or cases of goods to be conveyed by the
steamer Sorsogon to the port of Gubat, Province of Sorsogon, where
they were to be transshipped to another vessel belonging to the
defendant company and by the latter transported to the pueblo of
Catarman, Island of Samar, there to be delivered to the Chinese
shipper with whom the defendant party made the shipping contract.
To this end three bills of lading were executed, Nos. 38, 39, and 76,
copies of which, marked as Exhibits A, B, and C, are found on pages
13, 14, and 15 of the record.The steamer Sorsogon, which carried
the goods, arrived at the port of Gubat on the 28th of that month
and as the lorcha Pilar, to which the merchandise was to be
transshipped for its transportation to Catarman, was not yet there,
the cargo was unloaded and stored in the defendant company's
warehouses at that port.Several days later, the lorcha just
mentioned arrived at Gubat and, after the cargo it carried had been
unloaded, the merchandise belonging to the Chinaman, Ong Bieng
Sip, together with other goods owned by the defendant Inchausti &
Co., was taken aboard to be transported to Catarman; but on
December 5, 1908, before the Pilar could leave for its destination,
towed by the launch Texas, there arose and, as a result of the strong
wind and heavy sea, the lorcha was driven upon the shore and
wrecked, and its cargo, including the Chinese shipper's 205 packages
of goods, scattered on the beach. Laborers or workmen of the
defendant company, by its order, then proceeded to gather up the
plaintiff's merchandise and, as it was impossible to preserve it after
it was salved from the wreck of the lorcha, it was sold at public
auction before a notary for the sum of P1,693.67.The contract
entered into between the Chinese shipper, Ong Bieng Sip, and the
firm of Inchausti & Co., provided that transportation should be
furnished from Manila to Catarman, although the merchandise
taken aboard the steamer Sorsogon was to be transshipped at Gubat
to another vessel which was to convey it from that port to
Catarman; it was not stipulated in the said contract that
the Sorsogon should convey the goods to their final destination, nor
that the vessel into which they were to be transshipped, should be a
steamer. The shipper, Ong Bieng Sip, therefore assented to these
arrangements and made no protest when his 205 packages of
merchandise were unloaded from the ship and, on account of the
absence of the lorcha Pilar, stored in the warehouses at Gubat nor
did he offer any objection to the lading of his merchandise on to
this lorcha as soon as it arrived and was prepared to receive cargo;
moreover, he knew that to reach the port of Catarman with
promptness and dispatch, the lorcha had to be towed by some
vessel like the launch Texas, which the defendant company had
been steadily using for similar operations in those waters.Hence the
shipper, Ong Bieng Sip, made no protest or objection to the
methods adopted by the agents of the defendant for the
transportation of his gods to the port of their destination, and the
record does not show that in Gubat the defendant possessed any
other means for the conveyance and transportation of merchandise,
at least for Catarman, than the lorcha Pilar, towed by said launch
and exposed during its passage to all sorts of accidents and perils
from the nature and seafaring qualities of a lorcha, from the
circumstances then present and the winds prevailing on the Pacific
Ocean during the months of November and December.It is to be
noted that a lorcha is not easily managed or steered when the
traveling, for, out at sea, it can only be moved by wind and sails; and
along the coast near the shore and in the estuaries where it
customarily travels, it can only move by poling. For this reason, in
order to arrive at the pueblo of Catarman with promptness and
dispatch, the lorcha was usually towed by the launch Texas.The
record does not show that, from the afternoon of the 4th of
December, 1908, until the morning of the following day, the 5th,
the patron or master of the lorcha which was anchored in the cove
of Gubat, received any notice from the captain of the steamer Ton
Yek, also anchored near by, of the near approach of a storm. The
said captain, Juan Domingo Alberdi, makes no reference in his sworn
testimony of having given any such notice to the patron of
the lorcha, nor did the latter, Mariano Gadvilao, testify that he
received such notice from the captain of the Ton Yek or from the
person in charge of the Government observatory. Gadvilao,
the patron, testified that only between 10 and 11 o'clock of Saturday
morning, the 5th of December, was he informed by Inchausti & Co.'s
agent in Gubat that a baguio was approaching; that thereupon, on
account of the condition of the sea, he dropped the four anchors
that the lorcha had on board and immediately went ashore to get
another anchor and a new cable in order more securely to hold the
boat in view of the predicted storm. This testimony was
corroborated by the said representative, Melchor Muñoz. So
the lorcha, when the storm broke upon it, was held fast by five
anchors and was, as testified by the defendant without
contradiction or evidence to the contrary, well found and provided
with all proper and necessary equipment and had a sufficient crew
for its management and preservation.The patron of
the lorcha testified specifically that at Gubat or in its immediate
vicinity there is no port whatever adequate for the shelter and
refuge of vessels in cases of danger, and that, even though there
were, on being advised between 10 and 11 o'clock of the morning of
the 5th, of the approach of a storm from the eastern Pacific, it
would have been impossible to spread any sails or weigh anchor on
the lorcha without being dragged or driven against the reefs by the
force of the wind. As the craft was not provided with steam or other
motive power, it would not have been possible for it to change its
anchorage, nor move from the place where it lay, even several hours
before the notice was received by its patron. A lorcha can not be
compared with a steamer which does not need the help or
assistance of any other vessel in its movements.Due importance
must be given to the testimony of the weather observer, Antonio
Rocha, that the notice received from the Manila Observatory on the
afternoon of December 4, with regard to a storm travelling from the
east of the Pelew Islands toward the northwest, was not made
known to the people of Gubat and that he merely left a
memorandum notice on the desk of the station, intending to give
explanations thereof to any person who should request them of
him. So the notice of the storm sent by the Manila Observatory was
only known to the said observer, and he did not apprise the public of
the approach of the storm until he received another notice from
Manila at 20 minutes past 8 o'clock on Saturday morning, December
5. Then he made a public announcement and advised the authorities
of the storm that was coming.The patron of the lorcha Pilar is
charged with gross negligence for not having endeavored to remove
his craft to a safe place in the Sabang River, about half a mile from
where it was anchored.In order to find out whether there was or
was not such negligence on the part of the patron, it becomes
necessary to determine, first, whether the lorcha, on the morning of
December 5, could be moved by its own power and without being
towed by any steamboat, since it had no steam engine of its own;
second, whether the lorcha, on account of its draft and the
shallowness of the mouth of the said river, could have entered the
latter before the storm broke.The patron, Mariano Gadvilao, stated
under oath that the weather during the night of December 4 was
not threatening and he did not believe there would be a storm; that
he knew the Sabang River; and that the lorcha Pilar, when loaded,
could not enter as there was not sufficient water in its channel; that,
according to an official chart of the port of Gubat, the bar of the
Sabang River was covered by only a foot and a half of water at
ordinary low tide and the lorcha Pilar, when loaded, drew 6 feet and
a half; that aside from the fact that the condition of the sea would
not have permitted the lorcha to take shelter in the said river, even
could it have relied upon the assistance of a towboat, at half past 8
o'clock in the morning the tide was still low; there was but little
water in the river and still less over the bar.It was proven by the said
official chart of the port of Gubat, that the depth of water over the
bar or entrance of the Sabang River is only one foot and a half at
ordinary low tide; that the rise and fall of the tide is about 4_«_ feet,
the highest tide being at 2 o'clock in the afternoon of every day; and
at that hour, on the 5th of December, the hurricane had already
made its appearance and the wind was blowing with all its fury and
raising great waves.The lorcha Pilar, loaded as it had been from the
afternoon of December 4, even though it could have been moved by
means of poles, without being towed, evidently could not have
entered the Sabang River on the morning of the 5th, when the wind
began to increase and the sea to become rough, on account of the
low tide, the shallowness of the channel, and the boat's draft.The
facts stated in the foregoing paragraph were proved by the said
chart which was exhibited in evidence and not rejected or assailed
by the plaintiff. They were also supported by the sworn testimony of
the patron of the lorcha, unrebutted by any oral evidence on the
part of the plaintiff such as might disprove the certainty of the facts
related, and, according to section 275 of the Code of Civil Procedure,
the natural phenomenon of the tides, mentioned in the official
hydrographic map, Exhibit 7, which is prima facie evidence on the
subject, of the hours of its occurrence and of the conditions and
circumstances of the port of Gubat, shall be judicially recognized
without the introduction of proof, unless the facts to the contrary be
proven, which was not done by the plaintiff, nor was it proven that
between the hours of 10 and 11 o'clock of the morning of December
5, 1908, there did not prevail a state of low tide in the port of Gubat.
The oral evidence adduced by the plaintiff with respect to the depth
of the Sabang River, was unable to overcome that introduced by the
defendant, especially the said chart. According to section 320 of the
Code of Civil Procedure, such a chart is prima facie evidence of
particulars of general notoriety and interest, such as the existence of
shoals of varying depths in the bar and mouth of the Sabang River
and which obstruct the entrance into the same; the distance, length,
and number of the said shoals, with other details apparently well
known to the patron of the lorcha Pilar, to judge from his testimony.
Vessels of considerable draft, larger than the said lorcha, might have
entered the Sabang River some seven or nine years before,
according to the testimony of the Chinaman, Antonio B. Yap Cunco,
though he did not state whether they did so at high tide; but, since
1901, or previous years, until 1908, changes may have taken place in
the bed of the river, its mouth and its bar. More shoals may have
formed or those in existence may have increased in extent by the
constant action of the sea. This is the reason why the patron,
Gadvilao, who was acquainted with the conditions of the port and
cove of Gubat, positively declared that the lorcha Pilar could not, on
account of her draft, enter the Sabang River, on account of low
water.The patron of the lorcha, after stating (p.58) that at Gubat or
in its vicinity there is no port that affords shelter, affirmed that it
was impossible to hoist the sails or weigh the anchors on the
morning of the 5th of December, owing to the force of the wind and
because the boat would immediately have been dragged or driven
upon the shoals; that furthermore the lorcha was anchored in a
channel some 300 brazas wide, but, notwithstanding this width, the
Pilar was, for want of motive power, unable to move without being
exposed to be dashed against the coast by the strong wind and the
heavy sea then prevailing. The testimony of this witness was neither
impugned nor offset by any evidence whatever; he was a patron of
long years of service and of much practice in seafaring, especially in
the port of Gubat and its vicinity, who had commanded or been
intrusted with the command of other crafts similar to
the lorcha Pilar and his testimony was absolutely
uncontradicted.The patron Gadvilao, being cognizant of the duties
imposed upon him by rules 14 and 15 of article 612, and others, of
the Code of Commerce, remained with sailors, during the time the
hurricane was raging, on board the lorcha from the morning of
December 5 until early the following morning, the 6th, without
abandoning the boat, notwithstanding the imminent peril to which
he was exposed, and kept to his post until after the wreck and
the lorcha had been dashed against the rocks. Then he solicited help
from the captain of the steamer Ton Yek, and, thanks to the relief
afforded by a small boat sent by the latter officer, Gadvilao with his
crew succeeded in reaching land and immediately reported the
occurrence to the representative of Inchausti & Co. and to the public
official from whom he obtained the document of protest, Exhibit 1.
By such procedure, he showed that, as a patron skilled in the
exercise of his vocation, he performed the duties imposed by law in
cases of shipwreck brought about by force majeure.Treating of
shipwrecks, article 840 of the Code of Commerce prescribes:The
losses and damages suffered by a vessel and her cargo by reason of
shipwreck or standing shall be individually for the account of the
owners, the part of the wreck which may be saved belonging to
them in the same proportion.And Article 841 of the same code
reads:If the wreck or stranding should arise through the malice,
negligence, or lack of skill of the captain, or because the vessel put
to sea insufficiently repaired and supplied, the owner or the
freighters may demand indemnity of the captain for the damages
caused to the vessel or cargo by the accident, in accordance with the
provisions contained in articles 610, 612, 614, and 621.The general
rule established in the first of the foregoing articles is that the loss of
the vessel and of its cargo, as the result of shipwreck, shall fall upon
the respective owners thereof, save for the exceptions specified in
the second of the said articles.These legal provisions are in harmony
with those of articles 361 and 362 of the Code of Commerce, and are
applicable whenever it is proved that the loss of, or damage to, the
goods was the result of a fortuitous event or of force majeure; but
the carrier shall be liable for the loss or the damage arising from the
causes aforementioned, if it shall have been proven that they
occurred through his own fault or negligence or by his failure to take
the same precautions usually adopted by diligent and careful
persons.In the contract made and entered into by and between the
owner of the goods and the defendant, no term was fixed within
which the said merchandise should be delivered to the former at
Catarman, nor was it proved that there was any delay in loading the
goods and transporting them to their destination. From the 28th of
November, when the steamer Sorsogon arrived at Gubat and landed
the said goods belonging to Ong Bieng Sip to await
the lorcha Pilar which was to convey them to Catarman, as agreed
upon, no vessel carrying merchandise made the voyage from Gubat
to the said pueblo of the Island of Samar, and with Ong Bieng Sip's
merchandise there were also to be shipped goods belonging to the
defendant company, which goods were actually taken on board the
said lorcha and suffered the same damage as those belonging to the
Chinaman. So that there was no negligence, abandonment, or delay
in the shipment of Ong Bieng Sip's merchandise, and all that was
done by the carrier, Inchausti & Co., was what it regularly and
usually did in the transportation by sea from Manila to Catarman of
all classes of merchandise. No attempt has been made to prove that
any course other than the foregoing was pursued by that firm on
this occasion; therefore the defendant party is not liable for the
damage occasioned as a result of the wreck or stranding of
the lorcha Pilar because of the hurricane that overtook this craft
while it was anchored in the port of Gubat, on December 5, 1908,
ready to be conveyed to that of Catarman.It is a fact not disputed,
and admitted by the plaintiff, that the lorcha Pilar was stranded and
wrecked on the coast of Gubat during the night of the 5th or early in
the morning of the 6th of December, 1908, as a result of a violent
storm that came from the Pacific Ocean, and, consequently, it is a
proven fact that the loss or damage of the goods shipped on the
said lorcha was due to the force majeure which caused the wreck of
the said craft.According to the aforecited article 361 of the Code of
Commerce, merchandise shall be transported at the risk and venture
of the shipper, unless the contrary be expressly stipulated. No such
stipulation appears of record, therefore, all damages and
impairment suffered by the goods in transportation, by reason of
accident, force majeure, or by virtue of the nature or defect of the
articles, are for the account and risk of the shipper.
A final clause of this same article adds that the burden of proof of
these accidents is upon the carrier; the trial record fully discloses
that the loss and damage of the goods shipped by the Chinaman,
Ong Bieng Sip, was due to the stranding and wreck of
the lorcha Pilar in the heavy storm or hurricane aforementioned;
this the plaintiff did not deny, and admitted that it took place
between the afternoon of the 5th and early in the morning of the
6th of December, 1908, so it is evident that the defendant is exempt
from the obligation imposed by the law to prove the occurrence of
the said storm, hurricane, or cyclone in the port of Gubat, and,
therefore, if said goods were lost or damaged and could not be
delivered in Catarman, it was due to a fortuitous event and a
superior, irresistible natural force, or force majeure, which
completely disabled the lorcha intended for their transportation to
the said port of the Island of Samar.The record bears no proof that
the said loss or damage caused by the stranding or wreck of
the lorcha Pilar as a result of the storm mentioned, occurred
through carelessness or negligence on the part of the defendant
company, its agents or the patron of the said lorcha, or because they
did not take the precautions usually adopted by careful and diligent
persons, as required by article 362 of the Code of Commerce; the
defendant company, as well as its agents and the patron of
the lorcha, had a natural interest in preserving the craft and its own
goods laden therein — an interest equal to that of the Chinese
shipper in preserving his own which were on board the ship lorcha
— and, in fact, the defendant, his agents and the patron did take the
measures which they deemed necessary and proper in order to save
the lorcha and its cargo from the impending danger; accordingly,
the patron, as soon as he was informed that a storm was
approaching, proceeded to clear the boat of all gear which might
offer resistance to the wind, dropped the four anchors he had, and
even procured an extra anchor from the land, together with a new
cable, and cast it into the water, thereby adding, in so far as
possible, to the stability and security of the craft, in anticipation of
what might occur, as presaged by the violence of the wind and the
heavy sea; and Inchausti & Company's agent furnished the articles
requested by the patron of the lorcha for the purpose of preventing
the loss of the boat; thus did they all display all the diligence and
care such as might have been employed by anyone in similar
circumstances, especially the patron who was responsible for
the lorcha under his charge; nor is it possible to believe that the
latter failed to adopt all the measures that were necessary to save
his own life and those of the crew and to free himself from the
imminent peril of shipwreck.In view of the fact that the lorcha Pilar
had no means of changing its anchorage, even supposing that there
was a better one, and was unable to accept help from any steamer
that might have towed it to another point, as wherever it might have
anchored, it would continually have been exposed to the lashing of
the waves and to the fury of the hurricane, for the port of Gubat is a
cove or open roadstead with no shelter whatever from the winds
that sweep over it from the Pacific Ocean, and in view of the
circumstances that it was impossible for the said lorcha, loaded as it
then was, to have entered the Sabang River, even though there had
been a steamer to tow it, not only because of an insufficient depth
of water in its channel, but also on account of the very high bar at
the entrance of the said river, it is incontrovertible that the
stranding and wreck of the lorcha Pilar was due to a fortuitous event
or to force majeure and not to the fault and negligence of the
defendant company and its agents or of the patron, Mariano
Gadvilao, inasmuch as the record discloses it to have been duly
proved that the latter, in difficult situation in which unfortunately
the boat under his charge was placed, took all the precautions that
any diligent man should have taken whose duty it was to save the
boat and its cargo, and, by the instinct of self-preservation, his own
life and those of the crew of the lorcha; therefore, considering the
conduct of the patron of the lorcha and that of the defendant's
agent in Gubat, during the time of the occurrence of the disaster,
the defendant company has not incurred any liability whatever for
the loss of the goods, the value of which is demanded by the
plaintiff; it must, besides, be taken into account that the defendant
itself also lost goods of its own and the lorcha too.From the moment
that it is held that the loss of the said lorcha was due to force
majeure, a fortuitous event, with no conclusive proof or negligence
or of the failure to take the precautions such as diligent and careful
persons usually adopt to avoid the loss of the boat and its cargo, it is
neither just nor proper to attribute the loss or damage of the goods
in question to any fault, carelessness, or negligence on the part of
the defendant company and its agents and, especially, the patron of
the lorcha Pilar.Moreover, it is to be noted that, subsequent to the
wreck, the defendant company's agent took all the requisite
measures for the salvage of such of the goods as could be recovered
after the accident, which he did with the knowledge of the shipper,
Ong Bieng Sip, and, in effecting their sale, he endeavored to secure
all possible advantage to the Chinese shipper; in all these
proceedings, as shown by the record, he acted in obedience to the
law.
From all the foregoing it is concluded that the defendant is not liable
for the loss and damage of the goods shipped on the lorcha Pilar by
the Chinaman, Ong Bieng Sip, inasmuch as such loss and damage
were the result of a fortuitous event or force majeure, and there was
no negligence or lack of care and diligence on the part of the
defendant company or its agents.
Therefore, we hold it proper to reverse the judgment appealed
from, and to absolve, as we hereby do, the defendant, Inchausti &
Co., without special findings as to costs.
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch
IX of the Court of First Instance of Pangasinan and FIDEL H.
SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.
ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First
Instance of Pangasinan Branch IX, in Civil Case No. U2412, entitled,
"Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of
Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault
or negligence of the defendant (Umali) as owner and manager of the
Alcala Electric Plant", although the liability of defendant is mitigated
by the contributory negligence of the parents of the boy "in not
providing for the proper and delegate supervision and control over
their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the
plaintiff by ordering the defendant to pay to the plaintiff the sum of
Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00)
for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as
reasonable attorney's fee, or a total of Nine Thousand Seven
Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So
Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of
Alcala Pangasinan, which started from 2:00 o'clock in the afternoon
and lasted up to about midnight of the same day. During the storm,
the banana plants standing on an elevated ground along the barrio
road in San Pedro Ili of said municipality and near the transmission
line of the Alcala Electric Plant were blown down and fell on the
electric wire. As a result, the live electric wire was cut, one end of
which was left hanging on the electric post and the other fell to the
ground under the fallen banana plants.
On the following morning, at about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Iii who was passing by saw the broken
electric wire and so he warned the people in the place not to go
near the wire for they might get hurt. He also saw Cipriano
Baldomero, a laborer of the Alcala Electric Plant near the place and
notified him right then and there of the broken line and asked him
to fix it, but the latter told the barrio captain that he could not do it
but that he was going to look for the lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left
the place, a small boy of 3 years and 8 months old by the name of
Manuel P. Saynes, whose house is just on the opposite side of the
road, went to the place where the broken line wire was and got in
contact with it. The boy was electrocuted and he subsequently died.
It was only after the electrocution of Manuel Saynes that the broken
wire was fixed at about 10:00 o'clock on the same morning by the
lineman of the electric plant.
Petitioner claims that he could not be liable under the concept of
quasi-delict or tort as owner and manager of the Alcala Electric Plant
because the proximate cause of the boy's death electrocution could
not be due to any negligence on his part, but rather to a fortuitous
event-the storm that caused the banana plants to fall and cut the
electric line-pointing out the absence of negligence on the part of his
employee Cipriano Baldomero who tried to have the line repaired
and the presence of negligence of the parents of the child in
allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of
negligence on the part of defendants' employees in the Alcala
Electric Plant resulted in the death of the victim by electrocution.
First, by the very evidence of the defendant, there were big and tall
banana plants at the place of the incident standing on an elevated
ground which were about 30 feet high and which were higher than
the electric post supporting the electric line, and yet the employees
of the defendant who, with ordinary foresight, could have easily
seen that even in case of moderate winds the electric line would be
endangered by banana plants being blown down, did not even take
the necessary precaution to eliminate that source of danger to the
electric line. Second, even after the employees of the Alcala Electric
Plant were already aware of the possible damage the storm of May
14, 1972, could have caused their electric lines, thus becoming a
possible threat to life and property, they did not cut off from the
plant the flow of electricity along the lines, an act they could have
easily done pending inspection of the wires to see if they had been
cut. Third, employee Cipriano Baldomero was negligent on the
morning of the incident because even if he was already made aware
of the live cut wire, he did not have the foresight to realize that the
same posed a danger to life and property, and that he should have
taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises
because what was foremost in his mind was the repair of the line,
obviously forgetting that if left unattended to it could endanger life
and property.
On defendants' argument that the proximate cause of the victim's
death could be attributed to the parents' negligence in allowing a
child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the
part of defendants' employees resulting in a live wire lying on the
premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an
innocent child, could have met the same fate that befell the victim.
It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the
child, which enabled him to leave the house alone on the morning of
the incident and go to a nearby place cut wire was very near the
house (where victim was living) where the fatal fallen wire
electrocuted him, might mitigate respondent's liability, but we
cannot agree with petitioner's theory that the parents' negligence
constituted the proximate cause of the victim's death because the
real proximate cause was the fallen live wire which posed a threat to
life and property on that morning due to the series of negligence
adverted to above committed by defendants' employees and which
could have killed any other person who might by accident get into
contact with it. Stated otherwise, even if the child was allowed to
leave the house unattended due to the parents' negligence, he
would not have died that morning where it not for the cut live wire
he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the
plaintiff (parents of the victim in this case) was only contributory,
the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages, but
the courts shall mitigate the damages to be awarded. This law may
be availed of by the petitioner but does not exempt him from
liability. Petitioner's liability for injury caused by his employees
negligence is well defined in par. 4, of Article 2180 of the Civil Code,
which states:
The owner and manager of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on tile
occasion of their functions.
The negligence of the employee is presumed to be the negligence of
the employer because the employer is supposed to exercise
supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and
Court of Appeals, 107 Phil. 109). In fact the proper defense for the
employer to raise so that he may escape liability is to prove that he
exercised, the diligence of the good father of the family to prevent
damage not only in the selection of his employees but also in
adequately supervising them over their work. This defense was not
adequately proven as found by the trial Court, and We do not find
any sufficient reason to deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error
committed by the trial Court in this case, either in its appreciation of
the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities
emanating therefrom. The inevitable conclusion is that no error
amounting to grave abuse of discretion was committed and the
decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974
is affirmed.
Costs against petitioner.
SO ORDERED.
G.R. No. 164349 January 31, 2006
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC.
(RCPI),Petitioner,
vs.
ALFONSO VERCHEZ, GRACE VERCHEZ-INFANTE, MARDONIO
INFANTE, ZENAIDA VERCHEZ-CATIBOG, AND FORTUNATO
CATIBOG, Respondents.
DECISION
CARPIO MORALES, J.:
On January 21, 1991, Editha Hebron Verchez (Editha) was confined
at the Sorsogon Provincial Hospital due to an ailment. On even date,
her daughter Grace Verchez-Infante (Grace) immediately hied to the
Sorsogon Branch of the Radio Communications of the Philippines,
Inc. (RCPI) whose services she engaged to send a telegram to her
sister Zenaida Verchez-Catibog (Zenaida) who was residing at 18
Legal St., GSIS Village, Quezon City1 reading: "Send check money
Mommy hospital." For RCPI’s services, Grace paid P10.502 for which
she was issued a receipt.3
As three days after RCPI was engaged to send the telegram to
Zenaida no response was received from her, Grace sent a letter to
Zenaida, this time thru JRS Delivery Service, reprimanding her for
not sending any financial aid.
Immediately after she received Grace’s letter, Zenaida, along with
her husband Fortunato Catibog, left on January 26, 1991 for
Sorsogon. On her arrival at Sorsogon, she disclaimed having received
any telegram.
In the meantime, Zenaida and her husband, together with her
mother Editha left for Quezon City on January 28, 1991 and brought
Editha to the Veterans Memorial Hospital in Quezon City where she
was confined from January 30, 1991 to March 21, 1991.
The telegram was finally delivered to Zenaida 25 days later or on
February 15, 1991.4 On inquiry from RCPI why it took that long to
deliver it, a messenger of RCPI replied that he had nothing to do
with the delivery thereof as it was another messenger who
previously was assigned to deliver the same but the address could
not be located, hence, the telegram was resent on February 2, 1991,
and the second messenger finally found the address on February 15,
1991.
Editha’s husband Alfonso Verchez (Verchez), by letter of March 5,
1991,5 demanded an explanation from the manager of the Service
Quality Control Department of the RCPI, Mrs. Lorna D. Fabian, who
replied, by letter of March 13, 1991,6 as follows:
Our investigation on this matter disclosed that subject telegram was
duly processed in accordance with our standard operating
procedure. However, delivery was not immediately effected due to
the occurrence of circumstances which were beyond the control and
foresight of RCPI. Among others, during the transmission process,
the radio link connecting the points of communication involved
encountered radio noise and interferences such that subject
telegram did not initially registered (sic) in the receiving teleprinter
machine.
Our internal message monitoring led to the discovery of the
above. Thus, a repeat transmission was made and subsequent
delivery was effected. (Underscoring supplied)
Verchez’s lawyer thereupon wrote RCPI’s manager Fabian, by letter
of July 23, 1991,7 requesting for a conference on a specified date
and time, but no representative of RCPI showed up at said date and
time.
On April 17, 1992, Editha died.
On September 8, 1993, Verchez, along with his daughters Grace and
Zenaida and their respective spouses, filed a complaint against RCPI
before the Regional Trial Court (RTC) of Sorsogon for damages. In
their complaint, the plaintiffs alleged that, inter alia, the delay in
delivering the telegram contributed to the early demise of the late
Editha to their damage and prejudice,8 for which they prayed for the
award of moral and exemplary damages9 and attorney’s fees.10
After its motion to dismiss the complaint for improper venue11 was
denied12 by Branch 5 of the RTC of Sorsogon, RCPI filed its answer,
alleging that except with respect to Grace,13 the other plaintiffs had
no privity of contract with it; any delay in the sending of the
telegram was due to force majeure, "specifically, but not limited to,
radio noise and interferences which adversely affected the
transmission and/or reception of the telegraphic message";14 the
clause in the Telegram Transmission Form signed by Grace absolved
it from liability for any damage arising from the transmission other
than the refund of telegram tolls;15 it observed due diligence in the
selection and supervision of its employees; and at all events, any
cause of action had been barred by laches.16
The trial court, observing that "although the delayed delivery of the
questioned telegram was not apparently the proximate cause of the
death of Editha," ruled out the presence of force majeure.
Respecting the clause in the telegram relied upon by RCPI, the trial
court held that it partakes of the nature of a contract of adhesion.
Finding that the nature of RCPI’s business obligated it to dispatch
the telegram to the addressee at the earliest possible time but that
it did not in view of the negligence of its employees to repair its
radio transmitter and the concomitant delay in delivering the
telegram on time, the trial court, upon the following provisions of
the Civil Code, to wit:
Article 2176 – Whoever by act or omission causes damage to
another, there being at 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 quasi-delict and is
governed by the provisions of this Chapter.
Article 1173 defines the fault of (sic) negligence of the obligor as the
"omission of the diligence which is required by the nature of the
obligation and corresponds with the circumstances of the person, of
the time, or the place."
In the instant case, the obligation of the defendant to deliver the
telegram to the addressee is of an urgent nature. Its essence is the
early delivery of the telegram to the concerned person. Yet, due to
the negligence of its employees, the defendant failed to discharge of
its obligation on time making it liable for damages under Article
2176.
The negligence on the part of the employees gives rise to
the presumption of negligence on the part of the
employer.17 (Underscoring supplied),
rendered judgment against RCPI. Accordingly, it disposed:
WHEREFORE, in the light of the foregoing premises, judgment is
hereby rendered in favor of the plaintiffs and against the defendant,
to wit:
Ordering the defendant to pay the plaintiffs the following amount:
1. The amount of One Hundred Thousand (P100,000.00) Pesos as
moral damages;
2. The amount of Twenty Thousand (P20,000.00) Pesos as attorney’s
fees; and
3. To pay the costs.
SO ORDERED.18
On appeal, the Court of Appeals, by Decision of February 27,
2004,19 affirmed the trial court’s decision.
Hence, RCPI’s present petition for review on certiorari, it raising the
following questions: (1) "Is the award of moral damages proper even
if the trial court found that there was no direct connection between
the injury and the alleged negligent acts?"20 and (2) "Are the
stipulations in the ‘Telegram Transmission Form,’ in the nature
"contracts of adhesion" (sic)?21
RCPI insists that respondents failed to prove any causal connection
between its delay in transmitting the telegram and Editha’s death.22
RCPI’s stand fails. It bears noting that its liability is anchored
on culpa contractual or breach of contract with regard to Grace, and
on tort with regard to her co-plaintiffs-herein-co-respondents.
Article 1170 of the Civil Code provides:
Those who in the performance of their obligations are guilty of
fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages. (Underscoring
supplied)
Passing on this codal provision, this Court explained:
In culpa contractual x x x the mere proof of the existence of the
contract and the failure of its compliance justify, prima facie, a
corresponding right of relief. The law, recognizing the obligatory
force of contracts, will not permit a party to be set free from liability
for any kind of misperformance of the contractual undertaking or a
contravention of the tenor thereof. A breach upon the contract
confers upon the injured party a valid cause for recovering that
which may have been lost or suffered. The remedy serves to
preserve the interests of the promissee that may include
his "expectation interest," which is his interest in having the benefit
of his bargain by being put in as good a position as he would have
been in had the contract been performed, or his "reliance
interest," which is his interest in being reimbursed for loss caused by
reliance on the contract by being put in as good a position as he
would have been in had the contract not been made; or
his "restitution interest," which is his interest in having restored to
him any benefit that he has conferred on the other party. Indeed,
agreements can accomplish little, either for their makers or for
society, unless they are made the basis for action. The effect of
every infraction is to create a new duty, that is, to make recompense
to the one who has been injured by the failure of another to observe
his contractual obligation unless he can show extenuating
circumstances, like proof of his exercise of due diligence x x x or of
the attendance of fortuitous event, to excuse him from his ensuing
liability.23 (Emphasis and underscoring supplied)
In the case at bar, RCPI bound itself to deliver the telegram within
the shortest possible time. It took 25 days, however, for RCPI to
deliver it.
RCPI invokes force majeure, specifically, the alleged radio noise and
interferences which adversely affected the transmission and/or
reception of the telegraphic message. Additionally, its messenger
claimed he could not locate the address of Zenaida and it was only
on the third attempt that he was able to deliver the telegram.
For the defense of force majeure to prosper,
x x x it is necessary that one has committed no negligence or
misconduct that may have occasioned the loss. An act of God cannot
be invoked to protect a person who has failed to take steps to
forestall the possible adverse consequences of such a loss. One’s
negligence may have concurred with an act of God in producing
damage and injury to another; nonetheless, showing that the
immediate or proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability. When the
effect is found to be partly the result of a person’s participation –
whether by active intervention, neglect or failure to act – the
whole occurrence is humanized and removed from the rules
applicable to acts of God.
xxxx
Article 1174 of the Civil Code states that no person shall be
responsible for a fortuitous event that could not be foreseen or,
though foreseen, was inevitable. In other words, there must be an
exclusion of human intervention from the cause of injury or
loss.24 (Emphasis and underscoring supplied)
Assuming arguendo that fortuitous circumstances prevented RCPI
from delivering the telegram at the soonest possible time, it should
have at least informed Grace of the non-transmission and the non-
delivery so that she could have taken steps to remedy the situation.
But it did not. There lies the fault or negligence.
In an earlier case also involving RCPI, this Court held:
Considering the public utility of RCPI’s business and its contractual
obligation to transmit messages, it should exercise due diligence to
ascertain that messages are delivered to the persons at the given
address and should provide a system whereby in cases of
undelivered messages the sender is given notice of non-delivery.
Messages sent by cable or wireless means are usually more
important and urgent than those which can wait for the mail.25
xxxx
People depend on telecommunications companies in times of deep
emotional stress or pressing financial needs. Knowing that
messages about the illnesses or deaths of loved ones, births or
marriages in a family, important business transactions, and notices
of conferences or meetings as in this case, are coursed through the
petitioner and similar corporations, it is incumbent upon them to
exercise a greater amount of care and concern than that shown in
this case. Every reasonable effort to inform senders of the non-
delivery of messages should be undertaken.26
(Emphasis and underscoring supplied)
RCPI argues, however, against the presence of urgency in the
delivery of the telegram, as well as the basis for the award of moral
damages, thus:27
The request to send check as written in the telegraphic text negates
the existence of urgency that private respondents’ allegations that
‘time was of the essence’ imports. A check drawn against a Manila
Bank and transmitted to Sorsogon, Sorsogon will have to be
deposited in a bank in Sorsogon and pass thru a minimum clearing
period of 5 days before it may be encashed or withdrawn. If the
transmittal of the requested check to Sorsogon took 1 day – private
respondents could therefore still wait for 6 days before the same
may be withdrawn. Requesting a check that would take 6 days
before it could be withdrawn therefore contradicts plaintiff’s claim
of urgency or need.28
At any rate, any sense of urgency of the situation was met when
Grace Verchez was able to communicate to Manila via a letter that
she sent to the same addressee in Manila thru JRS.29
xxxx
As far as the respondent court’s award for moral damages is
concerned, the same has no basis whatsoever since private
respondent Alfonso Verchez did not accompany his late wife when
the latter went to Manila by bus. He stayed behind in Sorsogon for
almost 1 week before he proceeded to Manila. 30
When pressed on cross-examination, private respondent Alfonso
Verchez could not give any plausible reason as to the reason why he
did not accompany his ailing wife to Manila.31
xxxx
It is also important to consider in resolving private respondents’
claim for moral damages that private respondent Grace Verchez did
not accompany her ailing mother to Manila.32
xxxx
It is the common reaction of a husband to be at his ailing wife’s side
as much as possible. The fact that private respondent Alfonso
Verchez stayed behind in Sorsogon for almost 1 week convincingly
demonstrates that he himself knew that his wife was not in critical
condition.33
(Emphasis and underscoring supplied)
RCPI’s arguments fail. For it is its breach of contract upon which its
liability is, it bears repeating, anchored. Since RCPI breached its
contract, the presumption is that it was at fault or negligent. It,
however, failed to rebut this presumption.
For breach of contract then, RCPI is liable to Grace for damages.
And for quasi-delict, RCPI is liable to Grace’s co-respondents
following Article 2176 of the Civil Code which provides:
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. (Underscoring supplied)
RCPI’s liability as an employer could of course be avoided if it could
prove that it observed the diligence of a good father of a family to
prevent damage. Article 2180 of the Civil Code so provides:
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.
xxxx
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
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.
xxxx
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. (Underscoring
supplied)
RCPI failed, however, to prove that it observed all the diligence of a
good father of a family to prevent damage.
Respecting the assailed award of moral damages, a determination of
the presence of the following requisites to justify the award is in
order:
x x x firstly, evidence of besmirched reputation or physical, mental
or psychological suffering sustained by the claimant; secondly, a
culpable act or omission factually established; thirdly, proof that the
wrongful act or omission of the defendant is the proximate cause of A contract of adhesion is defined as one in which one of the parties
damages sustained by the claimant; and fourthly, that the case is imposes a ready-made form of contract, which the other party may
predicated on any of the instances expressed or envisioned by accept or reject, but which the latter cannot modify. One party
Article 2219 and Article 2220 of the Civil Code.34 prepares the stipulation in the contract, while the other party
Respecting the first requisite, evidence of suffering by the plaintiffs- merely affixes his signature or his "adhesion" thereto, giving no
herein respondents was correctly appreciated by the CA in this wise: room for negotiation and depriving the latter of the opportunity to
The failure of RCPI to deliver the telegram containing the message of bargain on equal footing.38 (Emphasis and underscoring supplied)
appellees on time, disturbed their filial tranquillity. Family members While a contract of adhesion is not necessarily void and
blamed each other for failing to respond swiftly to an emergency unenforceable, since it is construed strictly against the party who
that involved the life of the late Mrs. Verchez, who suffered from drafted it or gave rise to any ambiguity therein, it is stricken down as
diabetes.35 void and unenforceable or subversive of public policy when the
As reflected in the foregoing discussions, the second and third weaker party is imposed upon in dealing with the dominant
requisites are present. bargaining party and is reduced to the alternative of taking it or
On the fourth requisite, Article 2220 of the Civil Code provides: leaving it, completely deprived of the opportunity to bargain on
Willful injury to property may be a legal ground for awarding moral equal footing.39
damages if the court should find that, under the circumstances, such This Court holds that the Court of Appeals’ finding that the parties’
damages are justly due. The same rule applies to breaches of contract is one of adhesion which is void is, given the facts and
contract where the defendant acted fraudulently or in bad circumstances of the case, thus well-taken.
faith. (Emphasis and underscoring supplied) WHEREFORE, the petition is DENIED, and the challenged decision of
After RCPI’s first attempt to deliver the telegram failed, it did not the Court of Appeals is AFFIRMED.
inform Grace of the non-delivery thereof and waited for 12 days Costs against petitioner.
before trying to deliver it again, knowing – as it should know – that SO ORDERED.
time is of the essence in the delivery of telegrams. When its second
long-delayed attempt to deliver the telegram again failed, it, again,
waited for another 12 days before making a third attempt. Such
nonchalance in performing its urgent obligation indicates gross
negligence amounting to bad faith. The fourth requisite is thus also
present.
In applying the above-quoted Article 2220, this Court has awarded
moral damages in cases of breach of contract where the defendant
was guilty of gross negligence amounting to bad faith, or in wanton
disregard of his contractual obligation.36
As for RCPI’s tort-based liability, Article 2219 of the Civil Code
provides:
Moral damages may be recovered in the following and analogous
cases:
xxxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34, and 35. (Emphasis supplied)
Article 26 of the Civil Code, in turn, provides:
Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The following
and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention, and other
relief:
xxxx
(2) Meddling with or disturbing the private life or family relations of
another. (Emphasis supplied)
RCPI’s negligence in not promptly performing its obligation
undoubtedly disturbed the peace of mind not only of Grace but also
her co-respondents. As observed by the appellate court, it disrupted
the "filial tranquillity" among them as they blamed each other "for
failing to respond swiftly to an emergency." The tortious acts and/or
omissions complained of in this case are, therefore, analogous to
acts mentioned under Article 26 of the Civil Code, which are among
the instances of quasi-delict when courts may award moral damages
under Article 2219 of the Civil Code.
In fine, the award to the plaintiffs-herein respondents of moral
damages is in order, as is the award of attorney’s fees, respondents
having been compelled to litigate to protect their rights.
Clutching at straws, RCPI insists that the limited liability clause in the
"Telegram Transmission Form" is not a contract of adhesion. Thus it
argues:
Neither can the Telegram Transmission Form be considered a
contract of adhesion as held by the respondent court. The said
stipulations were all written in bold letters right in front of the
Telegram Transmission Form. As a matter of fact they were beside
the space where the telegram senders write their telegraphic
messages. It would have been different if the stipulations were
written at the back for surely there is no way the sender will easily
notice them. The fact that the stipulations were located in a
particular space where they can easily be seen, is sufficient notice to
any sender (like Grace Verchez-Infante) where she could manifest
her disapproval, leave the RCPI station and avail of the services of
the other telegram operators.37 (Underscoring supplied)
RCPI misunderstands the nature of a contract of adhesion. Neither
the readability of the stipulations nor their physical location in the
contract determines whether it is one of adhesion.