Anda di halaman 1dari 70

No. L-77679. September 30,1987.

* petitioner to pay, jointly and severally with Travellers Insurance and Surety Corporation, to
the private, respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as
moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for
VICENTE VERGARA, petitioner, vs. THE COURT OF APPE ALS and AM ADEO attorney's fees and the costs. On the third party complaint, the insurance company was
AZARCON, respondents. sentenced to pay to the petitioner the following: (a) P50,000.00 for third party liability under
its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's fees.
Torts; Damages; Quasi-delict; Requisites of a quasi-delict— These requisites of a
quasi-delict are: (1) damages to the plaintiff; (2) negligence, by act or omission, of Hence, this petition for review on certiorari.
which defendant, or some person for whose acts he must respond, was guilty; and
(3) the connection of cause and effect between such negligence and the damages. Petitioner's contention that the respondent court erred in finding him guilty of
fault or negligence is not tenable. It was established by competent evidence that
Same; Same; Negligence; Common Carriers; Defective brakes cannot be considered the requisites of a quasi-delict are present in the case at bar. These requisites are:
fortuitous in character.—A mishap caused by defective brakes cannot be (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant,
considered as fortuitous in character. Certainly, the defects were curable and the or some person for whose acts he must respond, was guilty; and (3) the connection
accident preventable. of cause and effect between such negligence and the damages.

Same; Same; Same; Presumption of negligence must be overcome by evidence.— It is undisputed that private respondent suffered damages as a result of an act or
The petitioner failed to adduce any evidence to overcome the disputable omission of petitioner. The issue of whether or not this act or omission can be
presumption of negligence on his part in the selection and supervision of his considered as a "negligent" act or omission was passed upon by the trial court.
driver. The findings of said court, affirmed by the respondent court, which we are not
prepared to now disturb, show that the fact of occurrence of the "vehicular
RESOLUTION accident" was sufficiently established by the policy report and the testimony of
Patrolman Masiclat. And the fact of negligence may be deduced from the
surrounding circumstances thereof. According to the police report, "the cargo
PADILLA, J.:
truck was travelling on the right side of the road going to Manila and then it
crossed to the center line and went to the left side of the highway; it then bumped
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed a tricycle; and then another bicycle; and then said cargo truck rammed the
by private respondent against petitioner. The action arose from a vehicular storewarehouse of the plaintiff."2
accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin
Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on"
According to the driver of the cargo truck, he applied the brakes but the latter did
the store-residence of the private respondent, causing damages thereto which
not work due to mechanical defect. Contrary to the claim of the petitioner, a
were inventoried and assessed at P 53,024.22.
mishap caused by defective brakes can not be considered as fortuitous in
character. Certainly, the defects were curable and the accident preventable.
In his answer to the complaint, the petitioner alleged principally: "that his driver
Martin Belmonte operated said cargo truck in a very diligent (and) careful
Furthermore, the petitioner failed to adduce any evidence to overcome the
manner; that the steering wheel refused to respond to his effort and as a result of
disputable presumption of negligence on his part in the selection and supervision
a blown-out tire and despite application of his brakes, the said cargo truck hit the
of his driver.
store-residence of plaintiff (private respondent) and that the said accident was an
act of God for which he cannot be held liable.''1
Based on the foregoing finding by the respondent Court that there was negligence
on the part of the petitioner, the petitioner's contention that the respondent court
Petitioner also filed a third party complaint against Travellers Insurance and
erred in awarding private respondent actual, moral and exemplary damages as
Surety Corporation, alleging that said cargo truck involved in the vehicular
well as attorney's fees and costs, is untenable.
accident, belonging to the petitioner, was insured by the third party defendant
insurance company. Petitioner asked that the latter be ordered to pay him
whatever amount he may be ordered by the court to pay to the private ACCORDINGLY, the petition is DENIED.
respondent.
SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento,
The trial court rendered judgment in favor of private respondent. Upon appeal to the Court JJ., concur.
of Appeals, the latter court affirmed in toto the decision of the trial court, which ordered
G.R. No. 118889. March 23, 1998.* As a consequence, petitioner FGU Insurance Corporation, in view of its insurance
contract with Soriano, paid the latter P25,382.20. By way of subrogation,2 it sued
FGU INSURANCE CORPORATION, petitioner, vs. COURT OF APPEALS, Dahl-Jensen and respondent FILCAR as well as respondent Fortune Insurance
FILCAR TRANSPORT, INC., and FORTUNE INSURANCE CORPORATION, delict before the Regional Trial Court of Makati City.
respondents.
Unfortunately, summons was not served on Dahl-Jensen since he was no longer
Civil Law; Damages; Quasi-Delict; Requisites to sustain a claim for damages staying at his given address; in fact, upon motion of petitioner, he was dropped
based on quasi-delict.—To sustain a claim based thereon, the following requisites from the complaint.
must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of the
defendant; and, (c) connection of cause and effect between the fault or negligence On 30 July 1991 the trial court dismissed the case for failure of petitioner to
of the defendant and the damage incurred by the plaintiff. substantiate its claim of subrogation.3

Same; Same; Same; Court agrees with respondent court that petitioner failed to On 31 January 1995 respondent Court of Appeals affirmed the ruling of the trial
prove the existence of the second requisite, i.e., fault or negligence of defendant court although based on another ground, i.e., only the fault or negligence of Dahl-
FILCAR.—We agree with respondent court that petitioner failed to prove the Jensen was sufficiently proved but not that of respondent FILCAR.4 In other
existence of the second requisite, i.e., fault or negligence of defendant FILCAR, words, petitioner failed to establish its cause of action for sum of money based on
because only the fault or negligence of Dahl-Jensen was sufficiently established, quasi-delict.
not that of FILCAR. It should be noted that the damage caused on the vehicle of
Soriano was brought about by the circumstance that DahlJensen swerved to the In this appeal, petitioner insists that respondents are liable on the strength of the
right while the vehicle that he was driving was at the center lane. It is plain that ruling in MYC-Agro-Industrial Corporation v. Vda. de Caldo5 that the registered
the negligence was solely attributable to Dahl-Jensen thus making the damage owner of a vehicle is liable for damages suffered by third persons although the
suffered by the other vehicle his personal liability. Respondent FILCAR did not vehicle is leased to another.
have any participation therein.
We find no reversible error committed by respondent court in upholding the
PETITION for review of a decision of the Court of Appeals.
dismissal of petitioner’s complaint. The pertinent provision is Art. 2176 of the
The facts are stated in the opinion of the Court.
Civil Code which states: “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
Carpio, Ferrer & Evangelista Law Offices for petitioner.
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict x x x x”
Nicolas A. Gerochi, Jr. for Filcar, Transport, Inc.
To sustain a claim based thereon, the following requisites must concur: (a)
Santiago, Arevalo, Tomas & Associates for Fortune Insurance Corp. damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c)
connection of cause and damage incurred by the plaintiff.6
BELLOSILLO, J.:

We agree with respondent court that petitioner failed to prove the existence of the
For damages suffered by a third party, may an action based on quasi-delict second requisite, i.e., fault or negligence of defendant FILCAR, because only the
prosper against a rent-a-car company and, consequently, its insurer for fault or fault or negligence of Dahl-Jensen was sufficiently established, not that of
negligence of the car lessee in driving the rented vehicle? FILCAR. It should be noted that the damage caused on the vehicle of Soriano was
brought about by the circumstance that Dahl-Jensen swerved to the right while
This was a two-car collision at dawn. At around 3 o’clock of 21 April 1987, two (2) vehicles, the vehicle that he was driving was at the center lane. It is plain that the
both Mitsubishi Colt Lancers, cruising northward along Epifanio de los Santos Avenue, negligence was solely attributable to Dahl-Jensen thus making the damage
Mandaluyong City, figured in a traffic accident. The car bearing Plate No. PDG 435 owned suffered by the other vehicle his personal liability. Respondent FILCAR did not
by Lydia F. Soriano was being driven at the outer lane of the highway by Benjamin have any participation therein.
Jacildone, while the other car, with Plate No. PCT 792, owned by respondent FILCAR
Transport, Inc. (FILCAR), and driven by Peter Dahl-Jensen as lessee, was at the center
lane, left of the other vehicle. Upon approaching the corner of Pioneer Street, the car owned Article 2180 of the same Code which deals also with quasidelict provides:
by FILCAR swerved to the right hitting the left side of the car of Soriano. At that time Dahl-
Jensen, a Danish tourist, did not possess a Philippine driver’s license. 1 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. against respondent FORTUNE can neither prosper.

The father and, in case of his death or incapacity, the mother, are responsible for Petitioner’s insistence on MYC-Agro-Industrial Corporation is rooted in a
the damages caused by the minor children who live in their company. misapprehension of our ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation caused injuries to several
Guardians are liable for damages caused by the minors or incapacitated persons persons and damage to property. Intending to exculpate itself from liability, the
who are under their authority and live in their company. corporation raised the defense that at the time of the collision it had no more
control over the vehicle as it was leased to another; and, that the driver was not
its employee but of the lessee. The trial court was not persuaded as it found that
The owners and managers of an establishment or enterprise are likewise
the true nature of the alleged lease contract was nothing more than a disguise
responsible for damages caused by their employees in the service of the branches
effected by the corporation to relieve itself of the burdens and responsibilities of
in which the latter are employed or on the occasion of their functions.
an employer. We upheld this finding and affirmed the declaration of joint and
several liability of the corporation with its driver. WHEREFORE, the petition is
Employers shall be liable for the damages caused by their employees and DENIED. The decision of respondent Court of Appeals dated 31 January 1995
household helpers acting within the scope of their assigned tasks, even though sustaining the dismissal of petitioner’s complaint by the trial court is
the former are not engaged in any business or industry. AFFIRMED. Costs against petitioner.

The State is responsible in like manner when it acts through a special agent; but SO ORDERED.
not when the damage has been caused by the is provided in article 2176 shall be
applicable.
Davide, Jr. (Chairman), Vitug, Panganiban and Quisumbing, JJ., concur.

Lastly, teachers or heads of establishments of arts and trades shall be liable for
Petition denied; Reviewed decision affirmed.
damages caused by their pupils and students or apprentices, so long as they
remain in their custody.
Note.—The existence of a contract between the parties does not bar a finding
of negligence under the principle of quasidelict. (Cipriano vs. Court of Appeals,
The responsibility treated of in this article shall cease when the persons herein
263 SCRA 711 [1996])
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
——o0o——
The liability imposed by Art. 2180 arises by virtue of a presumption juris tantum
of negligence on the part of the persons made responsible thereunder, derived © Copyright 2018 Central Book Supply, Inc. All rights reserved.
from their failure to exercise due care and vigilance over the acts of subordinates
to prevent them from causing damage.7 Yet, as correctly observed by respondent
court, Art. 2180 is hardly applicable because none of the circumstances mentioned
therein obtains in the case under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of the car leased to Dahl-
Jensen. As such, there was no vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be responsible for the negligent
act of Dahl-Jensen, the former not being an employer of the latter.

We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which
provides: “In motor vehicle mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the use of due diligence,
prevented the misfortune x x x x If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable.” Obviously, this provision of Art. 2184 is
neither applicable because of the absence of master-driver relationship between
respondent FILCAR and Dahl-Jensen. Clearly, petitioner has no cause of action
against respondent FILCAR on the basis of quasi-delict; logically, its claim
No. L-24837. June 27, 1968. Another letter was also prepared and signed by the said President of the Bank for
the Special Sheriff dated April 17, 1963.
JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs, vs. BANK OF
THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as “Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the
President of the said Bank, defendants. amount of P383 in favor of B.M. Glass Service dated April 16, 1963 and bearing
No. C-424852, and check No. C-394996 for the amount of P100 in favor of the
Civil law; Tort; Damages; Existence of a contract between the parties is not a bar to Lega Corporation, and drawn against the said Bank, were deposited by the said
the commission of a, tort by the one against the other.—It has been repeatedly drawees with the said bank. Believing that the plaintiff Singson, the drawer of
held: that the existence of a contract between the parties does not bar the the check, had no more control over the balance of his deposits in the said bank,
commission of a tort by the one against the other and the consequent recovery 01 the checks were dishonored and were refused payment by the said bank. After the
damages therefor (Cangco v. Manila Railroad, 38 Phil. 768; Yamada v. Manila first check was returned by the bank to the B.M. Glass Service, the latter wrote
Railroad, 33 Phil. 8; Vasquez v. Borja, 74 Phil. 560). Indeed, this view has been, in plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that his
effect, reiterated in a comparatively recent case. Thus, in Air France vs. check for P383.00 bearing No. C-424852 was not honored by the bank for the
Carrascoso, L-21438, Sept. 28, 1966, involving an airplane passenger who, despite reason that his account therein had already been garnished. The said B.M. Glass
his first-class ticket, had been illegally ousted from his first-class accomodation Service further stated in the said letter that they were constrained to close his
and compelled to take a seat in the tourist compartment, was held entitled to credit account with them. In view thereof, plaintiff Julian C. Singson wrote the
recover damages from the air-carrier, upon the ground of tort on the latter’s part, defendant bank a letter on April 19, 1963, claiming that his name was not
for, although the relation between a passenger and a carrier is “contractual both included in the Writ of Execution and Notice of Garnishment, which was served
in origin and nature the act that breaks the contract may also be a tort.” upon the bank. The defendant President Santiago Freixas of the said bank took
APPEAL from a judgment of the Court of First Instance of Manila. Montesa, J. steps to verify this information and after having confirmed the same, apologized
The facts are stated in the opinion of the Court.
Gil B. Galang for plaintiffs.
to the plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
Aviado & Aranda for defendants. requesting him to disregard their letter of April 17, 1963, and that the action of
CONCEPCION, C.J.:
garnishment from his account had already been removed. A similar letter was
written by the said official of the bank on April 22, 1963 to the Special Sheriff
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a informing him that his letter dated April 17, 1963 to the said Special Sheriff was
decision of the Court of First Instance of Manila dismissing their complaint considered cancelled and that they had already removed the Notice of
against defendants herein, the Bank of the Philippine Islands and Santiago Garnishment from plaintiff Singson’s account. Thus, the defendants lost no time
Freixas. to rectify the mistake that had been inadvertently committed, resulting in the
temporary freezing of the account of the plaintiff with the said bank for a short
It appears that Singson, was one of the defendants in Civil Case No. 23906 of the time.
Court of First Instance, Manila, in which judgment had been rendered sentencing
him and his co-defendants therein, namely, Celso Lobregat and Villa-Abrille & x x x x”
Co., to pay the sum of P105,539.56 to the plaintiff therein, Philippine Milling Co.
Singson and Lobregat had seasonably appealed from said judgment, but not Villa- On May 8, 1963, the Singsons commenced the present action against the Bank
Abrille & Co., as against which said judgment, accordingly, became final and and its president, Santiago Freixas, for damages1 in consequence of said illegal
executory. In due course, a writ of garnishment was subsequently served upon the freezing of plaintiffs’ account.
Bank of the Philippine Islands—in which the Singsons had a current account—
insofar as Villa-Abrille’s credits against the Bank were concerned. What
happened thereafter is set forth in the decision appealed from, from which we After appropriate proceedings, the Court of First Instance of Manila rendered
quote: judgment dismissing the complaint upon the ground that plaintiffs cannot recover
from the defendants upon the basis of a quasi-delict, because the relation between
the parties is contractual in nature; because this case does not fall under Article
“Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all 2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not
matters of execution and garnishment, upon reading the name of the plaintiff established the amount of damages allegedly sustained by them.
herein in the title of the Writ of Garnishment as a party defendant, without
further reading the body of the said garnishment and informing himself that said
garnishment was merely intended for the deposits of defendant Villa-Abrille & The lower court held that plaintiffs’ claim for damages cannot be based upon a
Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin Bona, prepared a tort or quasi-delict, their relation with the defendants being contractual in
letter for the signature of the President of the Bank informing the plaintiff Julian nature. We have repeatedly held, however, that the existence of a contract
C. Singson of the garnishment of his deposits by the plaintiff in that case. between the parties does not bar the commission of a tort by the one against the
order and the consequent recovery of damages therefor.2 Indeed, this view has
been, in effect, reiterated in a comparatively recent case. Thus, in Air France vs.
Carrascoso,3 involving an airplane passenger who, despite his first-class ticket,
had been illegally ousted from his first-class accommodation and compelled to
take a seat in the tourist compartment, was held entitled to recover damages from
the air-carrier, upon the ground of tort on the latter’s part, for, although the
relation between a passenger and a carrier is “contractual both in origin and
nature x x x the act that breaks the contract may also be a tort”.

In view, however, of the facts obtaining in the case at bar, and considering,
particularly, the circumstance that the wrong done to the plaintiffs was remedied
as soon as the President of the bank realized the mistake he and his subordinate
employee had committed, the Court finds that an award of nominal damages—the
amount of which need not be proven4—in the sum of P1,000, in addition to
attorney’s fees in the sum of P500, would suffice to vindicate plaintiff’s rights. 5

WHEREFORE, the judgment appealed from is hereby reversed, and another


one shall be entered sentencing the defendant Bank of the Philippine Islands to
pay to the plaintiffs said sums of P1,000, as nominal damages, and P500, as
attorney’s fees, apart from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles,


JJ., concur.

Fernando, J., took no part.

Judgment reversed.

Notes.—The principle in the Singson case, supra, “that the existence of a contract
between the parties does not bar the commission of a tort by the one against the
other and the consequent recovery of damages therefor” modifies in effect the rule
that “liability for quasi-delict arises if no pre-existing contractual relation
between the parties exists (Flores v. Miranda, L-12163, March 4, 1959; Art. 2176,
N.C.C.). Noteworthy to state here is the ruling that the definition of quasi-delict
in Article 2176 of the new Civil Code expressly excludes the cases where there is a
pre-existing contractual relationship between the parties (Verzosa v. Baytan, et al,
L-14092, April 29, 1960). Cf. Annotation entitled “Recovery of Damages Based on
Quasi-delict,” 22 SCRA 567–577.

© Copyright 2018 Central Book Supply, Inc. All rights reserved.


[No. 29356: December 29, 1928] conflicting views which it is difficult to reconcile. The present decision, therefore,
will aim to present as best it may, the principles for which a majority of the court
THE CITY OF MANILA, plaintiff and appellee, vs. THE MANILA ELECTRIC stand, leaving it to the individual member to dissent or otherwise explain his vote
COMPANY, defendant and appellant. as to him seems fit and proper.

1.
PLEADING AND PRACTICE; EVIDENCE; ADMISSIBILITY OF A RECORD On June 8, 1925, in the City of Manila, there occurred a collision between a street
IN A CRIMINAL PROCEEDING IN A CIVIL ACTION.—A record in a criminal car of the Manila Electric Company, of which Sixto Eustaquio was the motorman,
action cannot be admitted in a civil action except by way of inducement or to show and a truck belonging to the City of Manila. As a result of the collision, the truck
a collateral fact. The rule might be different if the party in the civil action had was damaged in the sum of P1,788.27. Sixto Eustaquio was prosecuted for the
control over the proceedings in the criminal action as by showing that the party in crime of damage to property and slight injuries through reckless imprudence. He
the civil action supplied the lawyer for the accused in the criminal action. was convicted by final judgment, and was sentenced to pay a fine of P900, to
indemnify the offended party, the City of Manila, in the sum of P1,788.27, with
subsidiary imprisonment in case of insolvency, and to pay the costs. Not being
2.
CRIMINAL LAW; SUBSIDIARY CIVIL LIABILITY FOR CRIMES;
able to collect the indemnity from the accused, the City of Manila began an action
RELATIONS OF PENAL CODE AND CIVIL CODE.—Where a motorman was to obtain payment from the Manila Electric Company. An allegation of the
convicted of the crime of damage to property and slight injuries through reckless complaint was "That the defendant Manila Electric Company as master of the
imprudence, and was sentenced therefor to pay a fine of ?900, to indemnify the said agent and servant, Sixto Eustaquio, by virtue of its relations with the latter
offended party in the sum of P1,788.27, with subsidiary imprisonment in case of and by express provisions of law, is subsidiarily liable to the herein plaintiff for
insolvency, and to pay the costs, and where the offended party was not able to the sum of P1,788.27, representing the damages caused by its agent and servant,
collect the indemnity from the accused and so began an action to obtain payment
the said Sixto Eustaquio, in the discharge of his duties as motorman of the
from the master, it is held that the case relates to the Penal Code and not to the defendant's electric car." The principal special defense set up in the answer to the
Civil Code, and so should be governed by the provisions of the Penal Code and not complaint was that the defendant had used all the diligence of a good father of a
by the provisions of the Civil Code. family to prevent the damage suffered by plaintiff. At the trial, the parties agreed
on certain stipulations and admissions. The Assistant City Fiscal also offered to
3.
ID.; ID.; ID.—The Penal Code authorizes the determination of subsidiary present two witnesses, but the trial judge.thought this unnecessary and so took
liability. The Civil Code negatives its applicability by providing that civil judicial cognizance of the decision and the record in the criminal case which
obligations arising from crimes or misdemeanors shall be governed by the convicted the motorman, all against the protest of counsel for the Manila Electric
provisions of the Penal Code. In other words, the Penal Code affirms its Company who noted his exceptions. The adverse judgment is now contested on
jurisdiction ,while the Civil Code negatives its jurisdiction. the ground that the trial court committed two errors, the first in admitting in
evidence the documents marked Exhibits A, B, C, D, E. and F, constituting the
Per JOHNSON, J., concurring: record in the case of the People of the Philippine Islands vs. Sixto Eustaquio; and
the second in not absolving the appellant from the complaint.
4.
DAMAGES, CIVIL AND CRIMINAL, RESULTING FROM CRIMES AND
MISDEMEANORS; SHOULD BE SETTLED IN ONE ACTION.—In this I. The first error plainly has merit. As a general rule, a record in a criminal action
jurisdiction the rule is, that all liabilities, civil and criminal, resulting from the cannot be admitted in evidence in a civil action except by way of inducement or to
same crimes and misdemeanors, shall be decided in the same case. No such rule show a collateral fact. The very obvious reason is that the parties and the issues
exists in the United States. The reason for the rule is to avoid the multiplicity of in a criminal action and a civil action are not the same. It is rudimentary that due
actions. process must be followed in the trial of all causes. No man or entity may be
APPEAL from a judgment of the Court of First Instance of Manila. Del Rosario, J. condemned without a day in court. (Almeida Chantangco and Lete vs. Abaroa
The facts are stated in the opinion of the court.
MALCOLM, J.: [1910], 218 U. S., 476; 40 Phil., 1056; Ed. A. Keller ,& Co. vs. Ellerman &
Bucknall Steamship Co. [1918], 38 Phil., 514.)
The Manila Electric Company appeals from a judgment of the Court of First
Instance of Manila which condemns it to pay to the City of Manila the sum of It needs to be repeated that the Manila Electric Company was not a party at the
P1,788.27, with legal interest from September 10, 1927, and with costs. While the trial of the criminal case. There is extant in the record no indication that the
case in its superficial aspects has appeared to be a simple one, in its Manila Electric Company had any control over the proceedings in the criminal
fundamentals the cause suggests important questions which possibly the parties case. All that the record in the criminal case showed was that the "abogado
have not entirely grasped. By way of preliminary statement, it also remains to be defensor" (Attorney for the defense) was Antonio Carrascoso. All that the record
said that the numerous deliberations of the court on the case have disclosed in the civil case showed was "Comparecieron: * * * Por la entidad demandada The
Manila Electric Co., los abogados señores Antonio T. Carrascoso, jr., y Guillermo
Cabrera" (Appearances: * * * For the defendant Manila Electric Company provisions of the Civil Code. Book IV, Title XVI, Chapter II, of the Civil Code
attorneys Antonio T. Carrascoso, jr., and Guillermo Cabrera). By a coincidence, concerns obligations which arise from fault or negligence. It is provided in article
Attorney Carrascoso was both counsel for the defendant in the criminal action 1903 that the obligation imposed for the damage to another caused by fault or
and for the defendant in the civil action. But there is lacking any proof showing negligence is enforcible against those persons for whom another is responsible.
that the Manila Electric Company supplied the lawyer for the accused in the But it is added that "The liability imposed by this article shall cease in case the
criminal action and so is concluded by the judgment there rendered. (By way of persons subject thereto prove that they exercised all the diligence of a good father
parenthesis, it may be said further that the statements just made are offered to of a family to prevent the damage." Found prior to these articles of the Civil Code
meet the argument advanced during our discussion to the effect that the court in the Chapter of Title I, Book IV, pertaining to general provisions of obligations,
should treat the interests of the Manila Electric Company as involved in both are articles 1092 and 1093. The first provides: "Civil obligations arising from
litigations and should thus consider the company as a real party without right crimes or misdemeanors shall be governed by the provisions of the Penal Code."
now to protest against the judgment.) The last mentioned provides: "Those arising from wrongful or negligent acts or
omissions not punishable by ,law shall be subject to the provisions of Chapter
It is our ruling that prejudicial error was committed in the admission by the trial second of Title sixteen of this book."—-that is among others to the provisions of
court of Exhibits A to P, but that since the plaintiff made the proper offer to article 1903 above-mentioned.
present its witnesses, the case should be remanded for a new trial.
Manresa, speaking of article 1092 of the Civil Code, offers the following comment:
II. It has been suggested that having passed on the first error that would be
sufficient. Theoretically, that is true. Practically, it is a fallacious argument. A "The Penal Code treats of this matter, first, in Chapter II, Title 2, of Book I,
new trial left unguided would immediately raise questions which would need to be determining therein who are civilly liable for crimes or misdemeanors and in
passed upon eventually by this court. Also if the customary defense in civil what manner, and stating in Title 4. of the same Book the extent and purposes of
actions for damages is to be held sufficient, the new trial would be fruitless and said obligations. Said Book I, ends with article 135, which makes express
the appeal might just as well be dismissed now as later, in view of the reference to the civil legislation, which reference, as may be seen, is also made in
stipulations appearing in the record. other provisions.

We desire to pay our respects to the second error assigned and to the point of "In those mutual references of one legislation to another, there is no doubt as to
whether or not a case of this character should be governed by the provisions of the the application of one or the other, nor can they be criticized, since they are well
Penal Code or by the provisions of the Civil Code. grounded.

The Penal Code authorizes the imposition of subsidiary liability in default of the "The Civil Code refers to the Penal Code as the rule applicable in the first place,
persons criminally liable. Article 20 of the Penal Code provides that this since the latter determines and punishes the acts giving rise to said obligations,
subsidiary liability shall "apply to masters, teachers, persons, and corporations or creates said obligations, thereby determining their existence and is, therefore,
engaged in any kind of industry for felonies and misdemeanors committed by for that reason of preferential application. But, then, as the Penal Code is
their servants, pupils, workmen, apprentices, or employees in the discharge of concerned with, and is interested only in determining how the civil obligation it
their duties." It is under this provision that the City of Manila is attempting to creates comes into existence and develops under the influence of the illicit
collect damages from the Manila Electric Company. If the Philippines still lay character of the act from which it arises and in the guilt of the subject of said
beneath the dominion of Spain, the pronouncement of primary and subsidiary obligation, as a consequence of said illicit character, it lays down only those rules
liability would be taken much as a matter of course. (See decisions of the Supreme inspired by those motives; and once the connection of that obligation with the
Court of Spain of October 10,1884, January 3, 1887, June 15, 1889, March 6, criminal liability is established in its provisions, with the consequences that may
1897, December 14, 1894, February 19, 1902; 2 Viada Código Penal Comentado, be inferred from the fact that the former is based on the latter; and after an effort
5th ed., pp. 487-495; 1 Hidalgo Código Penal, pp. 331-334; 1 Groizard Código has been made, within the sphere of that civil responsibility, toward making the
Penal, pp. 736-738; Opinion of the Fiscal of the Supreme Court of Justice of Spain indemnification coextensive with the effects of the crime, and a special necessity,
of January 17, 1865, 22 Revista de Legislación y Jurisprudencial, p. 412; Código which is characteristic of punishment and is the subject matter of the Penal Code,
Penal of Spain of 1928, art. 78.) The Penal Code then takes cognizance of the Civil has been shown in the provisions regulating said liability, the Penal Code, could
Code when in article 133 it is provided: "Civil liability arising from felonies or not, without going beyond its one sphere, give all the rules relative to said
misdemeanors shall be extinguished in the same manner as other obligations, in obligations, nor did it have any necessity for doing so, because once the peculiar
accordance with the rules of civil law." nature of said obligations is saved by its provisions, the essence thereof common
to the other obligations must, as in the latter, be defined by the civil law, which
In connection with the Penal Code, there must be taken into view certain will thus become an important source, although suppletory, of those derived from
crime. the widest known authorities on the subject of damages. But that was strictly a
civil action not predicated on or related to a criminal action. It was said:
"The peculiar rules of the Penal Code, as may be seen, are inspired by those "Inasmuch as no criminal proceeding had been instituted, growing out of the
motives which, as we have stated, might make them necessary for said Code to accident in question, the provisions of the Penal Code cannot affect this action.
establish, as distinguished from the criterion of the civil law with regard to This construction renders it unnecessary to finally determine here whether this
obligations in general. Thus, the fundamental declaration of article 18 gives the subsidiary civil liability in penal actions has survived the laws that fully
connection of civil obligation with criminal liability and explains the origin of the regulated it or has been abrogated by the American civil and criminal procedure
former: article 19 solves the doubt which that connection, among certain now in force in the Philippines." That such subsidiary civil liability in penal
liabilities, may create, and determining its limits in the nature and consequences actions has not been abrogated by later laws, seems fairly well established.
of the act, it mentions those which are of a civil nature, basing the civil liability Section 107 of the Code of Criminal Procedure recognizes the rights of persons
upon principles of justice, and rather upon casualty than upon liability of a injured by the offense to take part in the prosecution of the offense and to recover
criminal character. The intention to make indemnification proportionate to the damages. It is there provided that "the court upon conviction of the accused may
nature and effects of the act, from which the obligation arises, inspires the enter judgment against him for the damages occasioned by his wrongful act."
provisions contained in articles 121 to 124, both inclusive; the necessity to Authoritative decisions have also leaned in the direction of taking it for granted
distinguish, in order to give the consequences which the crime may produce that civil liability could be fixed in the criminal action. While the law of criminal
within the sphere of civil law, whether or not the persons thereby bound are procedure is silent on the subject of subsidiary liability, so far as we can see, there
guilty, prevails in article 128 and partly in article 122; article 125 gives the could exist no good reason for not permitting the action to be carried forward to
essential difference between the civil obligation and the personal criminal the second stage and there to fix subsidiary liability.
liability, and dissipates a doubt which, due to the latter's intransmissibility,
might arise as to the former by reason of its accessory character in connection With this preliminary point out of the way, there is no escaping the conclusion
with the other, and by the intimate connection between both which the crime or that the provisions of the Penal Code govern. The Penal Code in easily
misdemeanor creates and the criminal law declares; the influence of the severity understandable language authorizes the determination of subsidiary liability. The
on the punishment is noted in articles 20 and 21, even though the latter coincide Civil Code negatives its application by providing that civil obligations arising
with the criterion followed in analogous cases by the Civil Code, and already from crimes or misdemeanors shall be governed by the provisions of the Penal
deviating from the latter's criterion by reason of that severity founded on the Code. The conviction of the motorman was a misdemeanor falling under article
illicit origin of the obligations which it declares, it provides for the latter a 604 of the Penal Code. The act of the motorman was not a wrongful or negligent
necessary solidarity in article 127; and abandoning also the criterion of the civil act or omission not punishable by law. Accordingly, the civil obligation connected
law in article 126, it establishes within that solidarity, not the presumption of up with the Penal Code and not with article 1903 of the Civil Code. In other
equal division which the latter provides in such a case, but a prudent division words, the Penal Code affirms its jurisdiction while the Civil Code negatives its
which may, and generally must be, unequal, in order that the influence of the jurisdiction. This is a case of criminal negligence out of which civil liability arises
different participation in the crime or misdemeanor which is the origin of the and not a case of civil negligence.
former may also reach the Civil obligation.
The decision of the United States Supreme Court in the case of Almeida
"In all other respects, and even in some of those same features, either by the Chantangco and Lete vs. Abaroa, supra, should be read in connection both with
express reference of the articles which provide for them, or by the latter's the discussion of the first assignment of error and the question now before us. In
influence, the civil obligation shall be subject to the Civil Code, which even in that decision, Mr. Justice Lurton, delivering the opinion of the court, said:
some of those peculiar rules has supposed a modification in so far as it does not
establish the benefit of exemption to the extent needed for support, as provided "The case is, however, one which we conceive must be governed by the local law of
for in the Penal Code. the Philippine Islands, and the single question to which we need address
ourselves is as to whether that law was rightly applied by the local tribunals.
"While the Civil Code, in its article 1092, simply makes ref erence to the Penal
Code, yet, it is beyond doubt that by this reference it means those rules of a "Article 1902 of the Civil Code in force in the Philippine Islands reads thus: 'A
general nature which regulate the civil liability arising from the particular crimes person who, by an act or omission, causes damage to another when there is fault
or misdemeanors therein mentioned, and that, in connection therewith, they shall or negligence, shall be obliged to repair the damage so done.' By articles 1092 and
have the preferential application which this article recognizes in favor of the 1093 of the same Code provision is made for the enforcement of civil liability,
Penal Code." (8 Manresa Código Civil Español, 3d ed., pp. 28-32.) varying in character according to the origin of the liability. Thus, article 1092
provides that civil obligations arising from crimes and misdemeanors shall be
The case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), is one of governed by the provisions of the Penal Code. On the other hand, article 1093
provides that 'those arising from acts or omissions, in which fault or negligence, the court gave attention to a similar question. Speaking through Mr. Justice
not punished by law, occurs, shall be subject to the provisions of chapter second of Villamor, the court reached the following conclusions:
title sixteen of this book.' The action here involved comes directly under article
1092, above set out, and is not an action arising from 'fault or negligence, not "Article 1902 of the Civil Code has no application in the instant case, first, because said
punished by law.' The complaint alleges that the act of burning was 'malicious article presupposes the existence of (f ault or negligence upon which the action is based, and
and unlawful,' and not that it was the result of any 'fault or negligence.' This was second, it refers to a fault or negligence not punishable by law, because if the fault or
the construction placed upon the complaint by both the courts below, and is a negligence is punished by law, it ceases to be the quasi crime of negligence having purely
construction not challenged here. It follows that we must turn to the Penal Code civil effects, and becomes a crime or misdemeanor, according to the gravity of the penalty
to discover when a civil action arises out of a crime or misdemeanor, and the imposed by the law, and in that case it comes within the purview of article 1092 of the Civil
Code. Under the facts set forth in the complaint, if there was any fault or negligence on the
procedure of the enforcement of such civil liability. Article 17 of the Penal Code
part of the defendant, it must necessarily be a fault punishable by law (arts. 568, 590, and
reads as follows: 'Every person criminally liable for a crime or misdemeanor is 604 of the Penal Code), for through said fault he caused the death of the plaintiff's son.
also civilly liable.' May this civil liability be enforced without a prior legal Homicide through reckless imprudence is punished as a crime, and therefore the provisions
determination of the fact of the defendant's guilt of crime? Does civil liability exist applicable would be those of the Penal Code and the Law of Criminal Procedure above
at all if the defendant has been found not guilty of the acts out of which the civil cited."
liability arises? The opinion of the court below was that a judgment of conviction
was essential to an action for indemnification under the applicable local law. To Our deduction, therefore, is that the case relates to the Penal Code and not to the
this conclusion we assent, upon the following considerations: Civil Code. Indeed, as pointed out by the trial judge, any different ruling would
permit the master to escape scot-free by simply alleging and proving that the
"First, by the positive legislation of the Philippine Codes, civil and criminal, a distinction is master had exercised all diligence in the selection and training of its servants to
drawn between a civil liability which results from the mere negligence of the defendant and prevent the damage, That would be a good defense to a strictly civil action, but
a liability for the civil consequences of a crime by which another has sustained loss or might or might not be to a civil action either a part of or predicated on conviction
injury.
for a crime or misdemeanor. (By way of parenthesis, it may be said further that
the statements here made are offered to meet the argument advanced during our
"Second, the plain inference from article 17, above set out, is that civil liability springs out deliberations to the effect that article 1092 of the Civil Code should be
of and is dependent upon facts which, if true, would constitute a crime or misdemeanor. disregarded and codal articles 1093 and 1903 applied.)

"Third, the Philippine Code of Procedure plainly contemplates that the civil liability of the
In accordance with the foregoing, the judgment appealed from will be set
defendant shall be ascertained and declared in the criminal proceedings.
aside, and the record remanded to the lower court for a new trial. Without special
finding as to costs in this instance, it will be so ordered.
"Thus, section 742 of the Code of Criminal Procedure, after requiring that, in a criminal
proceeding, all of the minor or incidental offenses included in the principal crime shall be
decided, adds: 'All questions relating to the civil liability which may have been the subject- Avanceña, C. J., Street, Villamor, Romualdez, and VillaReal, JJ., concur.
matter of the charge shall be decided in the sentence.'
JOHNSON, J., concurring in part, with the following observation:
"The foregoing considerations eliminate any question of the effect of such a judgment of
acquittal under the principles of the common law and require an affirmance of the judgment In this jurisdiction the rule is, that all liabilities, civil and criminal, resulting from crimes
of the court below as properly based upon the applicable substantive law of the Philippine and misdemeanors, shall be decided in the same case. No such rule exists in the United
Islands, which has not been superseded by legislation since the establishment of the present States. To avoid a multiplicity of actions, therefore, all persons who are civilly and
Philippine Government." criminally liable as a result of crimes and misdemeanors, should be cited to appear for the
purpose of making their defense. All such persons are proper parties. There is no reason in
The facts here are distinguishable from those in Chaves and Garcia vs. Manila law why there should be more than one action to settle both the criminal and civil liabilities.
Electric Railroad and Light Company ([1915], 31 Phil., 47). In the cited case,
while the motorman was prosecuted and convicted, his sentence included no JOHNS, J., concurring:
imposition of civil liability. So the court correctly held, although without
discussion, that the employer was not liable in damages resulting from the I, concur in the result on the first assignment of error and at this time decline to express
criminal negligence of his employee, when he has exercised the care of a good any opinion as to the second.
father of a family in selecting said employee.
Ostrand, J., dissents. | Judgment set aside, and record remanded for new trial.
In the later decision of this court in Francisco vs. Onrubia ( [1924], 46 Phil., 327),
[G.R. No. 7567. November 12, 1912. ] street car on a public thoroughfare in as thickly settled district, to satisfy himself
that the track is clear immediately in front of his car before setting it in motion
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO BARIAS, Defendant- from a standstill and for that purpose to incline his body slightly forward, if that
Appellant. be necessary, in order to bring the track immediately in front of his car within his
line of vision.
Bruce, Lawrence, Ross & Block for Appellant. CARSON, J. :
Solicitor-General Harvey for Appellee.

SYLLABUS This is an appeal from a sentence imposed by the Honorable A. S. Crossfield,


judge of the Court of First Instance of Manila, for homicide resulting from
1. NEGLIGENCE DEFINED. — Negligence is "the failure to observe, for the reckless negligence. The information charges:
protection of the interests of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person "That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said
suffers injury." Segundo Barias was a motorman on street car No. 9, run 7, of the Pasay-Cervantes lines of
the Manila Electric Railroad and Light Company, a corporation duly organized and doing
business in the city of Manila, Philippine Islands; as such motorman he was controlling and
2. ID.; ID. — Silvela’s observation that "if a moment’s attention and reflexion
operating said street car along Rizal Avenue, formerly Calle Cervantes, of this city, and as
would have shown a person that the act which he was about to perform was liable such motorman of said street car he was under obligation to run the same with due care and
to have the harmful consequences which it had, such person acted with temerity diligence to avoid any accident that might occur to vehicles and pedestrians who were
and may be guilty of imprudencia temeraria," cited with approval. traveling on said Rizal Avenue; said accused, at said time and place, did willfully, with
reckless imprudenced and inexcusable negligence and in violation of the regulations
3. ID.; ID. — "The diligence with which the law requires the individual at all promulgated to that effect, control and operate said street car, without heeding the
pedestrians crossing Rizal Avenue from one side to the other, thus knocking down and
times to govern his conduct varies with the nature of the situation in which he is
causing by his carelessness and imprudent negligence that said street car No. 9, operated
placed and with the importance of the act which he is to perform." (U. S. v. Reyes, and controlled by said accused, as hereinbefore stated, should knock down and pass over the
1 Phil. Rep., 375, 377.) body and head of one Fermina Jose, a girl 2 years old, who at said time and place was
crossing the said Rizal Avenue, the body of said girl being dragged along the street-car track
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF on said Rizal Avenue for a long distance, thus crushing and destroying her head and causing
her sudden death as a result of the injury received; that if the acts executed by the accused
MOTORMEN. — Held, that a motorman operating a street car on a public street
had been done with malice, he would be guilty of the serious crime of homicide."
in a densely populated section of the city of Manila is bound to know and to
recognize that any negligence on his part in observing the track over which he is
running his car may result in fatal accidents. He has no right, when he starts The defendant was a motorman for the Manila Electric Railroad and Light
from a standstill, to assume that the track before his car is clear. It is his duty to Company. At about 6 o’clock on the morning of November 2, 1911, he was driving
satisfy himself of that fact by keeping a sharp lookout and doing everything in his his car along Rizal Avenue and stopped it near the intersection of that street with
power to avoid the danger which is necessarily incident to the operation of heavy Calle Requesen to take on some passengers. When the car stopped, the defendant
street cars on thoroughfares in populous sections of the city. looked backward, presumably to note whether all the passengers were aboard,
and then started his car. At that moment Ferminia Jose, a child about 3 years old,
walked or ran in front of the car. She was knocked down and dragged some little
5. ID.; ID.; ID. — In the absence of some regulation of his employers, a motorman
distance underneath the car, and was left dead upon the track. The motorman
who has brought his car to a standstill is not bound to keep his eyes directly to
proceeded with his car to the end of the track, some distance from the place of the
the front while the car is stopped, but before setting it again in motion, it is his
accident, and apparently knew nothing of it until his return, when he was
duty to satisfy himself that the track is clear, and for that purpose to look and to
informed of what had happened.
see the track just in front of his car.

There is no substantial dispute as to the facts. It is true that one witness testified
6. ID.; ID.; ID. — The reasons of public policy which impose upon street car
that the defendant started the car without turning his head, and while he was
companies and their employees the duty of exercising the utmost degree of
still looking backwards and that this testimony was directly contradicted by that
diligence in securing the safety of passengers, apply with equal force to the duty
of another witness. But we do not deem it necessary to make an express finding
of avoiding infliction of injuries upon pedestrians and others upon the public
as to the precise direction in which the defendant’s head was turned at the
streets and thoroughfares over which such companies are authorized to run their
moment when he started his car. It is sufficient for the purpose of our decision to
cars.
hold, as we do, that the evidence clearly discloses that he started his car from a
standstill without looking over the track immediately in front of the car to satisfy
7. ID.; ID.; ID. — It is the manifest duty of a motorman operating an electric himself that it was clear. He did not see the child until after he had run his car
over it, and after he had returned to the place where it was found dead, and we "Prudence is that cardinal virtue which teaches us to discern and distinguish the good from
think we are justified in saying that wherever he was looking at the moment the bad, in order to adopt or to flee from it. It also means good judgment, temperance, and
when he started his car, he was not looking at the track immediately in front of moderation in one’s action.’Temerario’ without reflection and without examining the same.
Consequently, he who from lack of good judgment, temperance, or moderation in his action,
the car, and that he had not satisfied himself that this portion of the track was
exposes himself without reflection and examination to the danger of committing a crime,
clear immediately before putting the car in motion. must be held responsible under the provision of law aforementioned."

The trial court found the defendant guilty of imprudencia temeraria (reckless Negligence is want of the care required by the circumstances. It is a relative or
negligence) as charged in the information, and sentenced him to one year and one comparative, not an absolute, term and its application depends upon the situation
month of imprisonment in Bilibid Prison, and to pay the costs of the action. of the parties and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree of care is necessary,
The sole question raised by this appeal is whether the evidence shows such and the failure to observe it is a want of ordinary care under the circumstances.
carelessness or want of ordinary care on the part of the defendant as to amount to (Ahern v. Oregon Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)
reckless negligence (imprudencia temeraria).
Ordinary care, if the danger is great, may rise to the grade of a very exact and
Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be: "The unchangeable attention. (Parry Mfg. Co. v. Eaton, 41 Ind. App., 81, 1908; 83 N.
failure to observe, for the protection of the interests of another person, that degree E., 510.)
of care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury.” In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held that: "The diligence
with which the law requires the individual at all times to govern his conduct
In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that: "Reckless negligence varies with the nature of the situation in which he is placed and with the
consists of the failure to take such precautions or advance measures in the importance of the act which he is to perform."
performance of an act as the most common prudence would suggest whereby
injury is caused to persons or to property." The question to be determined then, is whether, under all the circumstances, and
having in mind the situation of the defendant when he put his car in motion and
Silvela says in his "Derecho Penal," in speaking of reckless imprudence ran it over the child, he was guilty of a failure to take such precautions or
(imprudencia temeraria): advance measures as common prudence would suggest.

"The word ’negligencia’ used in the code, and the term ’imprudencia’ with which this The evidence shows that the thoroughfare on which the incident occurred was a
punishable act is defined, express this idea in such a clear manner that it is not necessary to public street in a densely populated section of the city. The hour was six in the
enlarge upon it. He who has done everything on his part to prevent his actions from causing morning, or about the time when the residents of such streets begin to move
damage to another, although he has not succeeded in doing so, notwithstanding his efforts,
about. Under such conditions a motorman of an electric street car was clearly
is the victim of an accident, and cannot be considered responsible for the same." (Vol. 2, p.
127 [153].) charged with a high degree of diligence in the performance of his duties. He was
bound to know and to recognize that any negligence on his part in observing the
track over which he was running his car might result in fatal accidents. He had
"Temerario is, in our opinion, one who omits, with regard to his actions, which are
no right to assume that the track before his car was clear. It was his duty to
liable to cause injury to another, that care and diligence, that attention, which satisfy himself of that fact by keeping a sharp lookout, and to do everything in his
can be required of the least careful, attentive, or diligent. If a moment’s attention power to avoid the danger which is necessarily incident to the operation of heavy
and reflection would have shown a person that the act which he was about to
street cars on public thoroughfares in populous sections of the city.
perform was liable to have the harmful consequence which it had, such person
acted with temerity and may be guilty of ’imprudencia temeraria." It may be that
in practice this idea has been given a greater scope and acts of imprudence which Did he exercise the degree of diligence required of him? We think this question
did not show carelessness as carried to such a high degree, might have been must be answered in the negative. We do not go so far as to say that having
punished as ’imprudencia temeraria;’ but in our opinion, the proper meaning of brought his car to a standstill it was his bounden duty to keep his eyes directed to
the word does not authorize another interpretation." (Id., p 133 [161].) the front. Indeed, in the absence of some regulation of his employers, we can well
understand that, at times, it might be highly proper and prudent for him to gland
back before again setting his car in motion, to satisfy himself that he understood
Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8, of correctly a signal to go forward or that all the passengers had safely alighted or
his work on the Penal Code, says: gotten on board. But we do insist that before setting his car again in motion, it
was his duty to satisfy himself that the track was clear, and, for that purpose, to on the track immediately in front of his car; and we hold that it is the manifest
look and to see the track just in front of his car. This the defendant did not do, duty of a motorman, who is about to start his car on a public thoroughfare in a
and the result of his negligence was the death of the child. thickly-settled district, to satisfy himself that the track is clear immediately in
front of his car, and to incline his body slightly forward, if that be necessary, in
In the case of Smith v. St. Paul City Ry. Co., (32 Min., p. 1), the supreme court of order to bring the whole track within his line of vision. Of course, this may not be,
Minnesota, in discussing the diligence required of street railway companies in the and usually is not necessary when the car is in motion, but we think that it is
conduct of their business observed that: "The defendant was a carrier of required by the dictates of the most ordinary prudence in starting from a
passengers for hire, owning and controlling the tracks and cars operated thereon. standstill.
It is therefore subject to the rules applicable to passenger carriers. (Thompson’s
Carriers, 442; Barrett v. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) , We are not unmindful of our remarks in the case of U. S. v. Bacho (10 Phil. Rep.,
205.) As respects hazards and dangers incident to the business or employment, 577), to which our attention is directed by counsel for Appellant. In that case we
the law enjoins upon such carrier the highest degree of care consistent with its said that:
undertaking, and it is responsible for the slightest negligence. (Wilson v.
Northern Pacific R. Co., 26 minn., 278; Warren v. Fitchburg R. Co., 8 Allen, 233; ". . . In the general experience of mankind, accidents apparently unavoidable and often
43 Am. Dec. 354, 356, notes and cases.) . . . The severe rule which enjoins upon inexplicable are unfortunately too frequent to permit us to conclude that some one must be
the carrier such extraordinary care and diligence, is intended, for reasons of criminally liable for negligence in every case where an accident occurs. it is the duty of the
public policy, to secure the safe carriage of passengers, in so far as human skill prosecution in each case to prove by competent evidence not only the existence of criminal
and foresight can affect such result." The case just cited was a civil case, and the negligence, but that the accused was guilty thereof."
doctrine therein announced d especial reference to the care which should be
exercised in securing the safety of passengers. But we hold that the reasons of Nor do we overlook the ruling in the case of U. S. v. Barnes (12 Phil. Rep., 93), to
public policy which imposed upon street car companies and their employees the which our attention is also invited, wherein we held that the defendant was not
duty of exercising the utmost degree of diligence in securing the safety of guilty of reckless negligence, where it appeared that he killed another by the
passengers, apply with equal force to the duty of avoiding the infliction of injuries discharge of his gun under such circumstances that he might have been held
upon pedestrians and others on the public streets and thoroughfares over which guilty of criminally reckless negligence had he had knowledge at that moment
these companies are authorized to run their cars. And while, in a criminal case, that another person was in such position as to be in danger if the gun should be
the courts will require proof of the guilt of the company or its employees beyond a discharged. In this latter case the defendant had no reason to anticipate that the
reasonable doubt, nevertheless the care or diligence required of the company and person who was injured was in the line of fire, or that there was any probability
its employees is the same in both cases, and the only question to be determined is that he or anyone else would place himself in the line of fire. In the case at bar,
whether the proof shows beyond a reasonable doubt that the failure to exercise however, it was, as we have seen, the manifest duty of the motorman to take
such care or diligence was the cause of the accident, and that the defendant was reasonable precautions in starting his car to see that in doing so he was not
guilty thereof. endangering the life of any pedestrian, old or young; and to this end it was further
his duty to guard against the reasonable possibility that some one might be on the
Counsel for the defendant insist that the accident might have happened despite evidence showing, is it does, that the child was killed at the moment when the car
the exercise of the utmost care by the defendant, and they have introduced was set in motion, we are justified in holding that, had the motorman seen the
photographs into the record for the purpose of proving that while the motorman child, he could have avoided the accident; the accident was not, therefore,
was standing in his proper place on the front platform of the car, a child might "unavoidable or inexplicable," and it appearing that the motorman, by the
have walked up immediately in front of the car, a child might have walked up exercise of ordinary diligence, might have seen the child before he set the car in
immediately in front of the car without coming within the line of his vision. motion, his failure to satisfy himself that the track was clear before doing so was
Examining the photographs, we think that this contention may have some reckless negligence, of which he was properly convicted in the court below.
foundation in fact; but only to this extent, that standing erect, at the position he
would ordinarily assume while the car is in motion, the eye of the average We think, however, that the penalty should be reduced to that of six months and one day of
motorman might just miss seeing the top of the head of a child, about three years prision correccional. Modified by substituting for so much thereof as imposes the penalty of
old, standing or walking close up to the front of the car. But it is also very evident one year and one month of imprisonment, the penalty of six months and one day of prision
correccional, the judgment of the lower court convicting and sentencing the appellant is
that by inclining the head and shoulders forward very slightly, and glancing in
affirmed, with the costs of both instances against him. So ordered.
front of the car, a person in the position of a motorman could not fail to see a child
on the track immediately in front of his car; and we hold that it is the manifest
duty of a motorman, who is about to start his car on a public thoroughfare in a Arellano, C.J., Torres and Mapa, JJ., concur. | Johnson, J., concurs in the result.
thickly-settled district, to satisfy himself that the track is clear immediately in
front of his car, a person in the position of a motorman could not fail to see a child Trent, J., dissents.
No. L-44264. September 19, 1988.* Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless
Imprudence in Criminal Case No. 10201 of the then Court of First Instance of
HEDY GAN y YU, petitioner, vs. THE HONORABLE COURT OF APPEALS and Manila, Branch XXII, presided by Judge Federico C. Alikpala. She was sentenced
the PEOPLE OF THE PHILIPPINES, respondents. to an indeterminate penalty of four (4) months and one (1) day of arresto mayor as
minimum and two (2) years, four (4) months and one (1) day of prision
correccional as maximum and was made to indemnify the heirs of the victim the
Criminal Law; Homicide Through Reckless Imprudence; Civil Law; Torts and
sum of P12,000.00 without any subsidiary imprisonment in case of insolvency and
Damages; Test for Determining Negligence Resulting in Injury or Damages; to pay the costs. On appeal, the trial court’s decision was modified and petitioner
Failure to take precautions to avoid the mischievous results of a person’s course of was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with
action constitutes negligence.—The test for determining whether or not a person is
the decision of the Court of Appeals,1 petitioner has come to this Court for a
negligent in doing an act whereby injury or damage results to the person or complete reversal of the judgment below.
property of another is this: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes the duty on The facts of the case as found by the appellate court are as follows:
the doer to take precaution against its mischievous results and the failure to do so
constitutes negligence. “In the morning of July 4, 1972 at about 8:00 o’clock, the accused Hedy Gan was driving a
Toyota car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of
North Bay Boulevard, there were two vehicles, a truck and a jeepney parked on one side of
Same; Same; Same; Same; Same; Same; Emergency Rule, Defined.—A corollary the road, one following the other about two to three meters from each other. As the car
rule is what is known in the law as the emergency rule. “Under that rule, one who driven by the accused approached the place where the two vehicles were parked, there was a
suddenly finds himself in a place of danger, and is required to act without time to vehicle coming from the opposite direction, followed by another which tried to overtake and
consider the best means that may be adopted to avoid the impending danger, is bypass the one in front of it and thereby encroached the lane of the car driven by the
not guilty of negligence, if he fails to adopt what subsequently and upon reflection accused. To avoid a head-on collision with the oncoming vehicle, the defendant swerved to
may appear to have been a better method, unless the emergency in which he finds the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man
who was about to cross the boulevard from south to north, pinning him against the rear of
himself is brought about by his own negligence.
the parked jeepney. The force of the impact caused the parked jeepney to move forward
hitting the rear of the parked truck ahead of it. The pedestrian was injured, the Toyota
Same; Same; Same; Same; Same; Same; Appellant is not guilty of Homicide Thru Sedan was damaged on its front, the jeep suffered damages on its rear and front parts, and
Simple Imprudence, as there was no showing that she had sufficient time to the truck sustained scratches at the wooden portion of its rear. The body of the old man who
analyze the situation and ponder on which course of action would result in the was later identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial
least possible harm.—Applying the above tests to the case at bar, we find the Hospital but was (pronounced) dead on arrival.”2
petitioner not guilty of the crime of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said: “The accused should have An information for Homicide thru Reckless Imprudence was filed against
stepped on the brakes when she saw the car going in the opposite direction petitioner in view of the above incident. She entered a plea of not guilty upon
followed by another which overtook the first by passing towards its left. She arraignment and the case was set for trial.
should not only have swerved the car she was driving to the right but should have
also tried to stop or lessen her speed so that she would not bump into the Meanwhile, petitioner sought and was granted a re-investigation by the City
pedestrian who was crossing at the time but also the jeepney which was then Fiscal, as a result of which the trial fiscal moved for the dismissal of the case
parked along the street.” The course of action suggested by the appellate court against petitioner during the resumption of hearing on September 7, 1972. The
would seem reasonable were it not for the fact that such suggestion did not take grounds cited therefor were lack of interest on the part of the complaining witness
into account the amount of time afforded petitioner to react to the situation she to prosecute the case as evidenced by an affidavit of desistance submitted to the
was in. For it is undeniable that the suggested course of action presupposes trial court and lack of eyewitness to sustain the charge.
sufficient time for appellant to analyze the situation confronting her and to
ponder on which of the different courses of action would result in the least
The motion to dismiss filed by the fiscal was never resolved. The Court instead
possible harm to herself and to others. Due to the lack of eyewitnesses, no
ordered the prosecution to present its evidence. After the prosecution rested its
evidence was presented by the prosecution with respect to the relative distances
case, the petitioner filed a motion to dismiss the case on the ground of
of petitioner to the parked jeepney and the oncoming overtaking vehicle that
insufficiency of evidence.
would tend to prove that petitioner did have sufficient time to reflect on the
consequences of her instant decision to swerve her car to the right without
stepping on her brakes. On December 22, 1972, the trial court rendered judgment finding petitioner guilty
PETITION to review the judgment of the Court of Appeals. beyond reasonable doubt of the offense charged.
FERNAN, C.J.:
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, not only have swerved the car she was driving to the right but should have also tried to stop
1976, the Court of Appeals rendered a decision, the dispositive portion of which or lessen her speed so that she would not bump into the pedestrian who was crossing at the
reads as follows: time but also the jeepney which was then parked along the street.”7

“Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the The course of action suggested by the appellate court would seem reasonable were
crime of homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of the it not for the fact that such suggestion did not take into account the amount of
Revised Penal Code she is hereby sentenced to the indeterminate penalty of three (3) time afforded petitioner to react to the situation she was in. For it is undeniable
months and eleven (11) days of arresto mayor and to indemnify the heirs of Isidoro Casino in that the suggested course of action presupposes sufficient time for appellant to
the sum of Twelve Thousand Pesos (P12,000.00) without, however, any subsidiary analyze the situation confronting her and to ponder on which of the different
imprisonment in case of insolvency, and to pay the costs.”3 courses of action would result in the least possible harm to herself and to others.

Petitioner now appeals to this Court on the following assignments of errors: Due to the lack of eyewitnesses, no evidence was presented by the prosecution
I
with respect to the relative distances of petitioner to the parked jeepney and the
The Court of Appeals erred in holding that when the petitioner saw a car travelling directly
towards her, she should have stepped on the brakes immediately or in swerving her vehicle oncoming overtaking vehicle that would tend to prove that petitioner did have
to the right should have also stepped on the brakes or lessened her speed, to avoid the death sufficient time to reflect on the consequences of her instant decision to swerve her
of a pedestrian. car to the right without stepping on her brakes. In fact, the evidence presented by
II the prosecution on this point is the petitioner’s statement to the police 8 stating:
The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple
Imprudence. “Ang masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na
III aking kasalubong kung kaya ay aking kinabig sa kanan ang aking kotse subalit siya naman biglang
The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa. Iyan ho ang buong
the sum of P12,000.00.4 pangyayari nang nasabing aksidente.”9 (italics supplied)

We reverse. The prosecution having presented this exhibit as its own evidence, we cannot but
deem its veracity to have been admitted by it. Thus, under the circumstances
The test for determining whether or not a person is negligent in doing an act narrated by petitioner, we find that the appellate court is asking too much from a
whereby injury or damage results to the person or property of another is this: mere mortal like the petitioner who in the blink of an eye had to exercise her best
Would a prudent man in the position of the person to whom negligence is judgment to extricate herself from a difficult and dangerous situation caused by
attributed foresee harm to the person injured as a reasonable consequence of the the driver of the overtaking vehicle. Petitioner certainly could not be expected to
course about to be pursued? If so, the law imposes the duty on the doer to take act with all the coolness of a person under normal conditions. 10 The danger
precaution against its mischievous results and the failure to do so constitutes confronting petitioner was real and imminent, threatening her very existence.
negligence.5 She had no opportunity for rational thinking but only enough time to heed the
very powerful instinct of self-preservation.
A corollary rule is what is known in the law as the emergency rule. “Under that
rule, one who suddenly finds himself in a place of danger, and is required to act Also, the respondent court itself pronounced that the petitioner was driving her
without time to consider the best means that may be adopted to avoid the car within the legal limits. We therefore rule that the “emergency rule”
impending danger, is not guilty of negligence, if he fails to adopt what enunciated above applies with full force to the case at bar and consequently
subsequently and upon reflection may appear to have been a better method, absolve petitioner from any criminal negligence in connection with the incident
unless the emergency in which he finds himself is brought about by his own under consideration.
negligence.”6
We further set aside the award of damages to the heirs of the victim, who by
Applying the above test to the case at bar, we find the petitioner not guilty of the executing a release of the claim due them, had effectively and clearly waived their
crime of Simple Imprudence resulting in Homicide. right thereto.

WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime
The appellate court in finding the petitioner guilty said: of Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded
by the appellate court to the heirs of the victim. SO ORDERED.
“The accused should have stepped on the brakes when she saw the car going in the opposite
direction followed by another which overtook the first by passing towards its left. She should Note.—Presumption of negligence must be overcome by evidence. (Vergara vs. CA, 154 SCRA 564.)
G.R. No. 131588. March 27, 2001.* movement, GLENN cannot be convicted because if such were the case, the proper
charge would be rebellion, and not murder.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN DE LOS
SANTOS, accused-appellant. Same; Reckless Imprudence; Negligence; A man must use common sense, and
exercise due reflection’ in all his acts—it is his duty to be cautious, careful, and
Criminal Law; Murder; Penalties; Where the death penalty is involved, the trial prudent, if not from instinct, then through fear of incurring punishment.—
court should be more scrupulous in weighing the evidence.—Considering that GLENN’s offense is in failing to apply the brakes, or to swerve his vehicle to the
death penalty is involved, the trial court should have been more scrupulous in left or to a safe place the moment he heard and felt the first bumping thuds. Had
weighing the evidence. If we are to subscribe to the trial court’s finding that he done so, many trainees would have been spared. We have once said: A man
GLENN must have merely wanted to scare the rear guards, then intent to kill must use common sense, and exercise due reflection in all his acts; it is his duty to
was wanting. In the absence of a criminal intent, he cannot be held liable for an be cautious, careful, and prudent, if not from instinct, then through fear of
intentional felony. All reasonable doubt intended to demonstrate negligence, and incurring punishment. He is responsible for such results as anyone might foresee
not criminal intent, should be indulged. From the convergence of circumstances, and for acts which no one would have performed except through culpable
we are inclined to believe that the tragic event was more a product of reckless abandon. Otherwise his own person, rights and property, and those of his fellow-
imprudence than of a malicious intent on GLENN’S part. beings, would ever be exposed to all manner of danger and injury.

Same; Same; Instinct tells one “to stop or swerve to a safe place the moment he sees Same; Same; Same; The test for determining whether a person is negligent in
a cow, dog, or cat on the road, in order to avoid bumping or killing the same,” and doing an act whereby injury or damage results to the person or property of another
more so if the one on the road is a person.—Indeed, as pointed out by appellant, is this: Could a prudent man, in the position of the person to whom negligence is
instinct tells one ‘‘to stop or swerve to a safe place the moment he sees a cow, dog, attributed, foresee harm to the person injured as a reasonable consequence of the
or cat on the road, in order to avoid bumping or killing the same”; and more so if course actually pursued?—The test for determining whether a person is negligent
the one on the road is a person. It would therefore be inconceivable for GLENN, in doing an act whereby injury or damage results to the person or property of
then a young college graduate with a pregnant wife and three very young children another is this: Could a, prudent man, in the position of the person to whom
who were dependent on him for support, to have deliberately hit the group with negligence is attributed, foresee harm to the person injured as a reasonable
his truck. consequence of the course actually pursued? If so, the law imposes a duty on the
actor to refrain from that course or to take precautions to guard against its
mischievous results, and the failure to do so constitutes negligence. Reasonable
Same; Same; Presumption of Innocence.—It is a well-entrenched rule that if the foresight of harm, followed by the ignoring of the admonition born of this
inculpatory facts are capable of two or more explanations—one consistent with prevision, is always necessary before negligence can be held to exist.
the innocence or lesser degree of liability of the accused, and the other consistent
with his guilt or grave responsibility—the Court should adopt the explanation
which is more favorable to the accused. Same; Same; Same; Words and Phrases; “Reckless Imprudence,” Explained.—
GLENN showed an inexcusable lack of precaution. Article 365 of the Revised
Penal Code states that reckless imprudence consists in voluntarily, but without
Same; Same; Motive; Although proof of motive is not indispensable to a conviction,
malice, doing or failing to do an act from which material damage results by reason
especially where the assailant is positively identified, such proof is, nonetheless, of inexcusable lack of precaution on the part of the person performing or failing to
important in determining which of two conflicting theories of the incident is more perform such act, taking into consideration (1) his employment or occupation; (2)
likely to be true.—Although proof of motive is not indispensable-to a conviction his degree of intelligence; (4) his physical condition; and (3) other circumstances
especially where the assailant is positively identified, such proof is, nonetheless, regarding persons, time and place.
important in determining which of two conflicting theories of the incident is more
likely to be true. Thus, in People v. Godinez, this Court said that the existence of a
motive on the part of the accused becomes decisive in determining the probability Same; Same; Same; Where the incident resulting in several deaths and injuries
or credibility of his version that the shooting was purely accidental. was not a product of a malicious intent but rather the result of a single act of
reckless driving, the accused should be held guilty of the complex crime of reckless
imprudence resulting in multiple homicide with serious physical injuries and less
Same; Same; Same; Rebellion; If there be evidence that the motive of the killing
serious physical injuries; If a reckless, imprudent, or negligent act results in two or
was in furtherance of a rebellion movement, the accused cannot be convicted of more grave or less grave felonies, a complex crime is committed.—Considering that
murder, because if such were the case, the proper charge would be rebellion.— the incident was not a product of a malicious intent but rather the result of a
Neither is there any showing of “a political angle of a leftist-sponsored massacre single act of reckless driving, GLENN should be held guilty of the complex crime
of police elements disguised in a vehicular accident.” Even if there be such of reckless imprudence resulting in multiple homicide with serious physical
evidence, i.e., that the motive of the killing was in furtherance of a rebellion
injuries and less serious physical injuries. Article 48 of the Revised Penal Code render assistance to the victim, therefore, constitutes a qualifying circumstance
provides that when the single act constitutes two or more grave or less grave because the presence thereof raises the penalty by one degree. Moreover, the fifth
felonies, or when an offense is a necessary means for committing the other, the paragraph thereof provides that in the imposition of the penalty, the court shall
penalty for the most serious crime shall be imposed, the same to be applied in its exercise its sound discretion without regard to the rules prescribed in Article 64.
maximum period. Since Article 48 speaks of felonies, it is applicable to crimes Elsewise stated, in felonies through imprudence or negligence, modifying
through negligence in view of the definition of felonies in Article 3 as “acts or circumstances need not be considered in the imposition of the penalty.
omissions punishable by law” committed either by means of deceit (dolo) or fault
(culpa). In Reodica v. Court of Appeals, we ruled that if a reckless, imprudent, or AUTOMATIC REVIEW of a decision of the Regional Trial Court of Cagayan de Oro City, Br. 38.
The facts are stated in the opinion of the Court.
negligent act results in two or more grave or less grave felonies, a complex crime DAVIDE, JR., C.J.:
is committed. Thus, in Lapuz v. Court of Appeals, the accused was convicted, in
conformity with Article 48 of the Revised Penal Code, of the complex crime of
One may perhaps easily recall the gruesome and tragic event in Cagayan de Oro
“homicide with serious physical injuries and damage to property through reckless
imprudence,” and was sentenced to a single penalty of imprisonment, instead of City, reported over print and broadcast media, which claimed the lives of several
the two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, members of the Philippine National Police (PNP) who were undergoing an
the accused was convicted of the complex crime of “multiple homicide with “endurance run” as part of the Special Counter Insurgency Operation Unit
Training. Not much effort was spared for the search of the one responsible
damage to property through reckless imprudence” for causing a motor boat to
therefor, as herein accused-appellant Glenn de los Santos (hereafter GLENN)
capsize thereby drowning to death its twenty-eight passengers.
immediately surrendered to local authorities. GLENN was then charged with the
crimes of Multiple Murder, Multiple Frustrated Murder, and Multiple Attempted
Same; Same; Same; Slight Physical Injuries; Being light felonies, which are not Murder in an information filed with the Regional Trial Court of Cagayan de Oro
covered by Article 48 of the Revised Penal Code, slight physical injuries should be City. The information reads as follows:
treated and punished as separate offenses.—The slight physical injuries caused by
GLENN to the ten other victims through reckless imprudence, would, had they
That on or about October 05, 1995, in the early morning, at Maitum Highway, within
been intentional, have constituted light felonies. Being light felonies, which are Barangay Puerto, Cagayan de Oro City, Philippines, and within the jurisdiction of this
not covered by Article 48, they should be treated and punished as separate Honorable Court, the above-named accused, with deliberate intent to kill, taking advantage
offenses. Separate informations should have, therefore, been filed. of his driven motor vehicle, an Isuzu Elf, and with treachery, did then and there willfully,
unlawfully and feloniously kill and inflict mortal wounds from . . . behind in a sudden and
Same; Same; Same; Same; Criminal Procedure; When two or more offenses are unexpected manner with the use of said vehicle . . . members of the Philippine National
Police (PNP), undergoing a Special Training Course (Scout Class 07-95), wearing black T-
charged in a single complaint or information and the accused fails to object to it
shirts and black short pants, performing an “Endurance Run” of 35 kilometers coming from
before trial, the court may convict the accused of as many offenses as are charged their camp in Manolo Fortich, Bukidnon, heading to Regional Training Headquarters in
and proved, and impose on him the penalty for each of them.—It must be noted Camp Alagar, Cagayan de Oro City, running in a column of 3, with a distance of two feet,
that only one information (for multiple murder, multiple frustrated murder and more or less, from one trainee to another, thus forming a [sic] three lines, with a length of
multiple attempted murder) was filed with the trial court. However, nothing more or less 50 meters from the 1st man to the last man, unable to defend themselves,
appears in the record that GLENN objected to the multiplicity of the information because the accused ran or moved his driven vehicle on the direction of the backs of the PNP
in a motion to quash before his arraignment. Hence, he is deemed to have waived joggers in spite of the continuous warning signals made by six of the joggers, namely: PO1
such defect. Under Section 3, Rule 120 of the Rules of Court, when two or more Allan Tabacon Espana, Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil
Villaflor, Nardo Omasas Collantes and Joselito Buyser Escartin, who were at the rear
offenses are charged in a single complaint or information and the accused fails to
echelon of said run, acting as guards, by continuously waving their hands at the accused for
object to it before trial, the court may convict the accused of as many offenses as him to take the left lane of the highway, going to the City proper, from a distance of 100
are charged and proved, and impose on him the penalty for each of them. meters away from the jogger’s rear portion, but which accused failed and refused to heed;
instead, he proceeded to operate his driven vehicle (an Isuzu Elf) on high speed directly
Same; Same; Same; In felonies through imprudence or negligence, modifying towards the joggers, thus forcing the rear guard[s] to throw themselves to [a] nearby canal,
to avoid injuries, then hitting, bumping, or ramming the first four (4) victims, causing the
circumstances need not be considered in the imposition of the penalty.—Now, we
bodies to be thrown towards the windshields of said Isuzu Elf, breaking said windshield,
come to the penalty. Under Article 365 of the Revised Penal Code, any person and upon being aware that bodies of the victims flew on the windshield of his driven vehicle,
who, by reckless imprudence, shall commit any act which, had it been intentional, instead of applying his brake, continued to travel on a high speed, this time putting off its
would constitute a grave felony shall suffer the penalty of arresto mayor in its headlights, thus hitting the succeeding joggers on said 1st line, as a result thereof the
maximum period to prision correccional in its medium period; and if it would have following were killed on the spot:
1. Vincent Labis Rosal 7. Antonio Flores Lasco
constituted a light felony, the penalty of arresto menor in its maximum period 2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
shall be imposed. The last paragraph thereof provides that the penalty next 3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
higher in degree shall be imposed upon the offender who fails to lend on the spot 5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
to the injured parties such help as may be in his hand to give. This failure to 6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito
While another trainee/victim, Antonio Palomino Mino, died few days after the incident, The guards forthwith jumped in different directions. Lemuel and Weldon saw
while the following eleven (11) other trainee/victims were seriously wounded, the accused their co-trainees being hit by the said vehicle, falling like dominoes one after the
thus performing all the acts of execution which would produce the crime of Murder as a other. Some were thrown, and others were overrun by the vehicle. The driver did
consequence but nevertheless did not produce it by reason of some cause other than said
not reduce his speed even after hitting the first and second columns. The guards
accused’s spontaneous desistance, that is, by the timely and able medical assistance
rendered on the following victims which prevented their death, to wit: then stopped oncoming vehicles to prevent their comrades from being hit again.3
1. Rey Go Boquis 7. Melchor Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala The trial court judge, together with the City Prosecutor, GLENN and his counsel,
4. Rey Tamayo Estofil 10. Victor Malicse Olavo conducted an ocular inspection of the place where the incident happened. They
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz then proceeded to inspect the Isuzu Elf at the police station. The City Prosecutor
manifested, thus:
While the following Police Officers I (PO1) sustained minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
The vehicle which we are now inspecting at the police station is the same vehicle
3. Rey Cayusa 8. Dibangkita Magandang which [was] involved in the October 5, 1995 incident, an Isuzu Elf vehicle colored
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. lordicante Martin Piligro
light blue with strips painting along the side colored orange and yellow as well as
in front. We further manifest that the windshield was totally damaged and 2/3
portion of the front just below the windshield was heavily dented as a
after which said accused thereafter escaped from the scene of the incident, leaving
consequence of the impact. The lower portion was likewise damaged more
behind the victims afore-enumerated helpless.
particularly in the radiator guard. The bumper of said vehicle was likewise
heavily damaged in fact there is a cut of the plastic used as a bumper; that the
Contrary to Article 248, in relation to Article 6 of the Revised Penal Code. right side of the headlight was likewise totally damaged. The front signal light,
right side was likewise damaged. The side mirror was likewise totally damaged.
The evidence for the prosecution disclose that the Special Counter Insurgency The height of the truck from the ground to the lower portion of the windshield is 5
Operation Unit Training held at Camp Damilag, Manolo Fortich, Bukidnon, ft. and the height of the truck on the front level is 5 ft.4
started on 1 September 1995 and was to end on 15 October 1995. The last phase
of the training was the “endurance run” from said Camp to Camp Alagar, PO3 Jose Cabugwas testified that he was assigned at the Investigation Division
Cagayan de Oro City. The run on 5 October 1995 started at 2:20 a.m. The PNP at Precinct 6, Cagayan de Oro City, and that at 4 a.m. of 5 October 1995, several
trainees were divided into three columns: the first and second of which had 22 members of the PNP came to their station and reported that they had been
trainees each, and the third had 21. The trainees were wearing black T-shirts, bumped by a certain vehicle. Immediately after receiving the report, he and two
black short pants, and green and black combat shoes. At the start of the run, a other policemen proceeded to the traffic scene to conduct an ocular inspection.
Hummer vehicle tailed the jogging trainees. When they reached Alae, the driver Only bloodstains and broken particles of the hit-and-run vehicle remained on the
of the Hummer vehicle was instructed to dispatch advanced security at strategic highway. They did not see any brake marks on the highway, which led him to
locations in Carmen Hill. Since the jogging trainees were occupying the right lane conclude that the brakes of the vehicle had not been applied. The policemen
of the highway, two rear security guards were assigned to each rear column. measured the bloodstains and found them to be 70 ft. long.5
Their duty was to jog backwards facing the oncoming vehicles and give hand
signals for other vehicles to take the left lane.1
GLENN’S version of the events that transpired that evening is as follows:

Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez and the
were assigned as rear guards of the first column. They recalled that from Alae to latter’s fellow band members to provide them with transportation, if possible an Isuzu
Maitum Highway, Puerto, Cagayan de Oro City, about 20 vehicles passed them, Forward, that would bring their band instruments, band utilities and band members from
all of which slowed down and took the left portion of the road when signaled to do Macasandig and Corrales, Cagayan de Oro City, to Balingoan. From there, they were
so.2 supposed to be taken to Mambajao, Camiguin, to participate in the San Miguel-sponsored
“Sabado Nights” of the Lanzones Festival from 5-7 October 1995. It was the thirteenth time
that Enting had asked such a favor from him.6 Since the arrangement was to fetch Galindez
While they were negotiating Maitum Highway, they saw an Isuzu Elf truck and his group at 4:00 a.m. of 5 October 1995, GLENN immediately went to Cugman,
coming at high speed towards them. The vehicle lights were in the high beam. At Cagayan de Oro City, to get his Isuzu Elf truck. After which, he proceeded back to his house
a distance of 100 meters, the rear security guards started waving their hands for at Bugo, Cagayan de Oro City, and told his wife that he would go to Bukidnon to get his
the vehicle to take the other side of the road, but the vehicle just kept its speed, aunt’s Isuzu Forward truck because the twenty band members and nine utilities and band
apparently ignoring their signals and coming closer and closer to them. Realizing instruments could not be accommodated in the Isuzu Elf truck. Three of his friends asked to
that the vehicle would hit them, the rear guards told their co-trainees to “retract.” go along, namely, Roldan Paltonag, Andot Peña, and a certain Akut.7
After leaving GLENN’s house, the group decided to stop at Celebrity Plaza Restaurant. in the sky; and, definitely, the moon and stars could not be seen. 13
GLENN saw his “kumpare” Danilo Cosin and the latter’s wife, and joined them at the table.
GLENN finished three bottles of pale pilsen beer. When the Cosin spouses left, GLENN
joined his travelling companions at their table. The group left at 12:00 midnight for The prosecution presented rebuttal witness Danilo Olarita whose house was just
Bukidnon. The environment was dark and foggy, with occasional rains. It took them 100 meters away from the place where the incident occurred. He testified that he
sometime looking for the Isuzu Forward truck. Finally, they saw the truck in Agusan was awakened on that fateful night by a series of loud thuds. Thereafter, a man
Canyon. Much to their disappointment, the said truck had mechanical problems. Hence, came to his house and asked for a glass of water, claiming to have been hit by a
GLENN decided to go back to Cagayan de Oro City to tell Enting that they would use the vehicle. Danilo further stated that the weather at the time was fair, and that the
Isuzu Elf truck instead.8 soil was dry and not muddy.14

GLENN drove slowly because the road was slippery. The vicinity was dark: there was no In its decision of 26 August 1997, the trial court convicted GLENN of the complex crime of
moon or star; neither were there lamp-posts. From the Alae junction, he and his companions multiple murder, multiple frustrated murder and multiple attempted murder, with the use
used the national highway, traversing the right lane going to Cagayan de Oro City. At the of motor vehicle as the qualifying circumstance. It sentenced him to suffer the penalty of
vicinity of Mambatangan junction, as the Elf was negotiating a left curve going slightly death and ordered him to indemnify each group of the heirs of the deceased in the amount of
downward, GLENN saw a very bright and glaring light coming from the opposite direction P75,000; each of the victims of frustrated murder in the amount of P30,000; and each of the
of the national highway. GLENN blinked his headlights as a signal for the other driver to victims of attempted murder in the amount of P10,000.
switch his headlights from bright to dim. GLENN switched his own lights from bright to
dim and reduced his speed from 80 to 60 kilometers per hour. It was only when the vehicles
were at a distance of 10 to 15 meters from each other that the other car’s headlights were Hence, this automatic review, wherein GLENN contends that the trial court erred
switched from bright to dim. As a result, GLENN found it extremely hard to adjust from (a) in finding that he caused the Isuzu Elf truck to hit the trainees even after
high brightness to sudden darkness.9 seeing the rear guards waving and the PNP trainees jogging; (b) in finding that
he caused the truck to run even faster after noticing the first thuds; and (c) in
It was while the truck was still cruising at a speed of 60 km./hr., and immediately after finding that he could still have avoided the accident from a distance of 150
passing the oncoming vehicle, that GLENN suddenly heard and felt bumping thuds. At the meters, despite the bright and glaring light from the oncoming vehicle.
sound of the first bumping thuds, GLENN put his right foot on the brake pedal. But the
impact was so sudden that he was astonished and afraid. He was trembling and could not
In convicting GLENN, the trial court found that “the accused out of mischief and dare-
see what were being bumped. At the succeeding bumping thuds, he was not able to pump
devilness [sic], in the exhilaration of the night breeze and having dr[u]nk at least three
the brake, nor did he notice that his foot was pushing the pedal. He returned to his senses
bottles of beer earlier, merely wanted to scare the rear guard[s] and see them scamper away
only when one of his companions woke up and said to him: “Gard, it seems we bumped on
as they saw him and his vehicle coming at them to ram them down.”15
something. Just relax, we might all die.” Due to its momentum, the Elf continued on its
track and was able to stop only when it was already very near the next curve. 10
Likewise, the OSG posits that “the evil motive of the appellant in injuring the jogging
GLENN could not distinguish in the darkness what he had hit, especially since the right trainees was probably brought by the fact that he had dr[u]nk a total of three (3)
headlights of the truck had been busted upon the first bumping thuds. In his confusion and bottles of beer earlier before the incident.”16
fear, he immediately proceeded home. GLENN did not report the incident to the Puerto
Police Station because he was not aware of what exactly he had hit. It was only when he Not to be outdone, the defense also advances another speculation, i.e., “the
reached his house that he noticed that the grill of the truck was broken; the side mirror and
possibility that [GLENN] could have fallen asleep out of sheer fatigue in that
round mirror, missing; and the windshield, splintered. Two hours later, he heard on Bombo
Radyo that an accident had occurred, and he realized that it was the PNP group that he had unholy hour of 3:30 in the early morning, and thus was not able to stop his Isuzu
hit. GLENN surrendered that same day to Governor Emano. 11 Elf truck when the bumping thuds were occurring in rapid succession; and after
he was able to wake up upon hearing the shout of his companions, it was already
too late, as the bumping thuds had already occurred.”17
The defense also presented Crescente Galindez, as well as Shirley Almazan of the
PAG-ASA Office, Cagayan de Oro City. The former testified that when he went to
GLENN’s house at about 10:00 p.m. of 4 October 1995, there was heavy rain; and Considering that death penalty is involved, the trial court should have been more
at 12:00 midnight, the rain was moderate. He corroborated GLENN’s testimony scrupulous in weighing the evidence. If we are to subscribe to the trial court’s
that he (Crescente) went to GLENN’s house that evening in order to hire a truck finding that GLENN must have merely wanted to scare the rear guards, then
that would bring the band instruments, band utilities and band members from intent to kill was wanting. In the absence of a criminal intent, he cannot be held
Cagayan de Oro to Camiguin for the Lanzones Festival.12 Almazan, on the other liable for an intentional felony. All reasonable doubt intended to demonstrate
hand, testified that based on an observed weather report within the vicinity of negligence, and not criminal intent, should be indulged.18
Cagayan de Oro City, there was rain from 8:00 p.m. of October 1995 to 2:00 a.m.
the next day; and the sky was overcast from 11:00 p.m. of 4 October 1995 to 5:00 From the convergence of circumstances, we are inclined to believe that the tragic
a.m. of 5 October 1995. What she meant by “overcast” is that there was no break event was more a product of reckless imprudence than of a malicious intent on
GLENN’s part. 2.
The national highway, from Alae to Puerto, Cagayan de Oro City, was made of fine and
smooth asphalt, free from obstructions on the road such as potholes or excavations.
Moreover, the highway was going a little bit downward, more particularly from the first
First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of curve to the place of incident. Hence, it was easier and faster to traverse a distance of “20 to
the incident was “very dark,” as there was no moon. And according to PAG-ASA’s 25 meters which was the approximate aggregate distance” from the first elements up to the
observed weather report within the vicinity of Cagayan de Oro City covering a 22nd or 23rd elements of the columns.
radius of 50 kilometers, at the time the event took place, the sky was overcast,
i.e., there was absolutely no break in the thick clouds covering the celestial dome 3.
The weight of each of the trainees (the average of which could be 50 kilograms only)
globe; hence, there was no way for the moon and stars to be seen. Neither were could hardly make an impact on the 3,900 kilograms truck, which was moving at a speed
there lampposts that illuminated the highway. ranging from 60 to 70 kilometers per hour.

Second, the jogging trainees and the rear guards were all wearing black T-shirts, 4.
Considering that the width of the truck from the right to the left tires was wide and the
black short pants, and black and green combat shoes, which made them hard to under chassis was elevated, the truck could just pass over two persons lying flat on the
make out on that dark and cloudy night. The rear guards had neither ground without its rubber tires running over the bodies. Thus, GLENN would not notice any
destabilization of the rubber tires.
reflectorized vests or gloves nor flashlights in giving hand signals.

5.
Since the police trainees were jogging in the same direction as the truck was proceeding,
Third, GLENN was driving on the proper side of the road, the right lane. On the the forward movements constituted a force parallel to the momentum of the forward-moving
other hand, the jogging trainees were occupying the wrong lane, the same lane as truck such that there was even much lesser force resisting the said ongoing momentum.
GLENN’s vehicle was traversing. Worse, they were facing the same direction as
GLENN’s truck such that their backs were turned towards the oncoming vehicles
It is a well-entrenched rule that if the inculpatory facts are capable of two or more
from behind.
explanations—one consistent with the innocence or lesser degree of liability of the
accused, and the other consistent with his guilt or graver responsibility—the
Fourth, no convincing evidence was presented to rebut (GLENN’s testimony that Court should adopt the explanation which is more favorable to the accused.19
he had been momentarily blinded by the very bright and glaring lights of the
oncoming vehicle at the opposite direction as his truck rounded the curve. He
We are convinced that the incident, tragic though it was in light of the number of
must have been still reeling from the blinding effect of the lights coming from the
persons killed and seriously injured, was an accident and not an intentional
other vehicle when he plowed into the group of police trainees.
felony. It is significant to note that there is no shred of evidence that GLENN had
an axe to grind against the police trainees that would drive him into deliberately
Indeed, as pointed out by appellant, instinct tells one “to stop or swerve to a safe hitting them with intent to kill.
place the moment he sees a cow, dog, or cat on the road, in order to avoid bumping
or killing the same”; and more so if the one on the road is a person. It would
Although proof of motive is not indispensable to a conviction especially where the
therefore be inconceivable for GLENN, then a young college graduate with a
assailant is positively identified, such proof is, nonetheless, important in
pregnant wife and three very young children who were dependent on him for
determining which of two conflicting theories of the incident is more likely to be
support, to have deliberately hit the group with his truck.
true.20 Thus, in People v. Godinez,21 this Court said that the existence of a motive
on the part of the accused becomes decisive in determining the probability or
The conclusion of the trial court and the OSG that GLENN intentionally rammed credibility of his version that the shooting was purely accidental.
and hit the jogging trainees was premised on the assumption that despite the first
bumping thuds, he continued to accelerate his vehicle instead of applying his
Neither is there any showing of “a political angle of a leftist-sponsored massacre
brakes, as shown by the absence of brake marks or skid marks along the traffic
of police elements disguised in a vehicular accident.” 22 Even if there be such
scene.
evidence, i.e., that the motive of the killing was in furtherance of a rebellion
movement, GLENN cannot be convicted because if such were the case, the proper
For its part, the defense attributed the continuous movement of GLENN’s vehicle charge would be rebellion, and not murder.23
to the confluence of the following factors:
GLENN’s offense is in failing to apply the brakes, or to swerve his vehicle to the
1.
The Isuzu Elf truck, a huge vehicle, was moving fast that even if the brakes were applied left or to a safe place the moment he heard and felt the first bumping thuds. Had
the truck would have still proceeded further on account of its momentum, albeit at a
he done so, many trainees would have been spared.
reduced speed, and would have stopped only after a certain distance.

We have once said:


A man must use common sense, and exercise due reflection in all his acts; it is his Article 3 as “acts or omissions punishable by law” committed either by means of
duty to be cautious, careful, and prudent, if not from instinct, then through fear of deceit (dolo) or fault (culpa).26 In Reodica v. Court of Appeals,27 we ruled that if a
incurring punishment. He is responsible for such results as anyone might foresee reckless, imprudent, or negligent act results in two or more grave or less grave
and for acts which no one would have performed except through culpable felonies, a complex crime is committed. Thus, in Lapuz v. Court of Appeals,28 the
abandon. Otherwise his own person, rights and property, and those of his fellow- accused was convicted, in conformity with Article 48 of the Revised Penal Code, of
beings, would ever be exposed to all manner of danger and injury.24 the complex crime of “homicide with serious physical injuries and damage to
property through reckless imprudence,” and was sentenced to a single penalty of
The test for determining whether a person is negligent in doing an act whereby imprisonment, instead of the two penalties imposed by the trial court. Also, in
injury or damage results to the person or property of another is this: Could a Soriao v. Court of Appeals,29 the accused was convicted of the complex crime of
prudent man, in the position of the person to whom negligence is attributed, “multiple homicide with damage to property through reckless imprudence” for
foresee harm to the person injured as a reasonable consequence of the course causing a motor boat to capsize thereby drowning to death its twenty-eight
actually pursued? If so, the law imposes a duty on the actor to refrain from that passengers.
course or to take precautions to guard against its mischievous results, and the
failure to do so constitutes negligence. Reasonable foresight of harm, followed by The slight physical injuries caused by GLENN to the ten other victims through
the ignoring of the admonition born of this prevision, is always necessary before reckless imprudence, would, had they been intentional, have constituted light
negligence can be held to exist.25 felonies. Being light felonies, which are not covered by Article 48, they should be
treated and punished as separate offenses. Separate informations should have,
GLENN showed an inexcusable lack of precaution. Article 365 of the Revised therefore, been filed.
Penal Code states that reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by reason It must be noted that only one information (for multiple murder, multiple
of inexcusable lack of precaution on the part of the person performing or failing to frustrated murder and multiple attempted murder) was filed with the trial court.
perform such act, taking into consideration (1) his employment or occupation; (2) However, nothing appears in the record that GLENN objected to the multiplicity
his degree of intelligence; (4) his physical condition; and (3) other circumstances of the information in a motion to quash before his arraignment. Hence, he is
regarding persons, time and place. deemed to have waived such defect.30 Under Section 3, Rule 120 of the Rules of
Court, when two or more offenses are charged in a single complaint or
GLENN, being then a young college graduate and an experienced driver, should information and the accused fails to object to it before trial, the court may convict
have known to apply the brakes or swerve to a safe place immediately upon the accused of as many offenses as are charged and proved, and impose on him
hearing the first bumping thuds to avoid further hitting the other trainees. By his the penalty for each of them.
own testimony, it was established that the road was slippery and slightly going
downward; and, worse, the place of the incident was foggy and dark. He should Now, we come to the penalty. Under Article 365 of the Revised Penal Code, any
have observed due care in accordance with the conduct of a reasonably prudent person who, by reckless imprudence, shall commit any act which, had it been
man, such as by slackening his speed, applying his brakes, or turning to the left intentional, would constitute a grave felony shall suffer the penalty of arresto
side even if it would mean entering the opposite lane (there being no evidence mayor in its maximum period to prision correccional in its medium period; and if
that a vehicle was coming from the opposite direction). It is highly probable that it would have constituted a light felony, the penalty of arresto menor in its
he was driving at high speed at the time. And even if he was driving within the maximum period shall be imposed. The last paragraph thereof provides that the
speed limits, this did not mean that he was exercising due care under the existing penalty next higher in degree shall be imposed upon the offender who fails to lend
circumstances and conditions at the time. on the spot to the injured parties such help as may be in his hand to give. This
failure to render assistance to the victim, therefore, constitutes a qualifying
Considering that the incident was not a product of a malicious intent but rather circumstance because the presence thereof raises the penalty by one degree. 31
the result of a single act of reckless driving, GLENN should be held guilty of the Moreover, the fifth paragraph thereof provides that in the imposition of the
complex crime of reckless imprudence resulting in multiple homicide with serious penalty, the court shall exercise its sound discretion without regard to the rules
physical injuries and less serious physical injuries. prescribed in Article 64. Elsewise stated, in felonies through imprudence or
negligence, modifying circumstances need not be considered in the imposition of
the penalty.32
Article 48 of the Revised Penal Code provides that when the single act constitutes
two or more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be imposed, In the case at bar, it has been alleged in the information and proved during the
the same to be applied in its maximum period. Since Article 48 speaks of felonies, trial that GLENN “escaped from the scene of the incident, leaving behind the
it is applicable to crimes through negligence in view of the definition of felonies in victims.” It being crystal clear that GLENN failed to render aid to the victims, the
penalty provided for under Article 365 shall be raised by one degree. Hence, for Davide, Jr. (C.J.), Bellosillo, Melo, Vitug, Kapunan, Mendoza,
reckless imprudence resulting in multiple homicide with serious physical injuries Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De
and less serious physical injuries, the penalty would be prision correccional in its Leon, Jr. and Sandoval-Gutierrez, JJ., concur.
maximum period to prision mayor in its medium period. Applying Article 48, the
maximum of said penalty, which is prision mayor in its medium period, should be Puno, J., Abroad on official business.
imposed. For the separate offenses of reckless imprudence resulting in slight
physical injuries, GLENN may be sentenced to suffer, for each count, the penalty
Judgment set aside.
of arresto mayor in its minimum period.

Although it was established through the testimonies of prosecution witness Notes.—A deliberate intent to do an unlawful act is essentially inconsistent
Lemuel Pangca33 and of GLENN that the latter surrendered to Governor Emano with the idea of reckless imprudence—in criminal negligence, the injury caused to
of Misamis Oriental, such mitigating circumstance need not be considered another should be unintentional, it being simply the incident of another act done
without malice but with lack of foresight, or with carelessness or negligence, and
pursuant to the aforestated fifth paragraph of Article 365.
which has harmed society or an individual. (People vs. Nepomuceno, Jr., 298
SCRA 450 [1998])
Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an
indeterminate penalty whose minimum is within the range of the penalty next
Negligence is a relative or comparative, not an absolute, term and its application
lower in degree to that prescribed for the offense, and whose maximum is that
which could properly be imposed taking into account the modifying depends upon the situation of the parties and the degree of care and vigilance
circumstances. Hence, for the complex crime of reckless imprudence resulting in which the circumstances reasonably require. (Adzuara vs. Court of Appeals, 301
multiple homicide with serious physical injuries and less serious physical injuries, SCRA 657 [1999])
qualified by his failure to render assistance to the victims, he may be sentenced to
suffer an indeterminate penalty ranging from arresto mayor in its maximum ——o0o——
period to prision correccional in its medium period, as minimum, to prision mayor
in its medium period, as maximum. As to the crimes of reckless imprudence © Copyright 2018 Central Book Supply, Inc. All rights reserved.
resulting in slight physical injuries, since the maximum term for each count is
only two months the Indeterminate Sentence Law will not apply.

As far as the award of damages is concerned, we find a necessity to modify the


same. Conformably with current jurisprudence,34 we reduce the trial court’s
award of death indemnity from P75,000 to P50,000 for each group of heirs of the
trainees killed. Likewise, for lack of factual basis, we delete the awards of P30,000
to each of those who suffered serious physical injuries and of P10,000 to each of
those who suffered minor physical injuries.

WHEREFORE, the decision of the Regional Trial Court, Branch 38, Cagayan
de Oro City, is hereby SET ASIDE, and another one is rendered holding herein
accused-appellant GLENN DE LOS SANTOS guilty beyond reasonable doubt of
(1) the complex crime of reckless imprudence resulting in multiple homicide with
serious physical injuries and less serious physical injuries, and sentencing him to
suffer an indeterminate penalty of four (4) years of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum; and (2) ten (10) counts
of reckless imprudence resulting in slight physical injuries and sentencing him,
for each count, to the penalty of two (2) months of arresto mayor. Furthermore,
the awards of death indemnity for each group of heirs of the trainees killed are
reduced to P50,000; and the awards in favor of the other victims are deleted.
Costs against accused-appellant.

SO ORDERED.
No. L-65295. March 10,1987.* 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
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, petitioners' theory is a more credible explanation than that offered by private
vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondent Dionisio—i.e., that he had his headlights on but that, at the crucial
respondents. 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.
Torts; Evidence; Private respondent had no curfew pass during the night the
accident took place. The certification by a major assigned in Pampanga that
respondent has a curfew pass is not credible as it lacks the necessary details.— Same; Same; The fact that a driver smelled of liquor does not necessarily mean he
Private respondent Dionisio was not able to produce any curfew pass during the is drunk.—A fourth and final issue relates to whether Dionisio was intoxicated at
trial. Instead, he offered the explanation that his family may have misplaced his the time of the accident. The evidence here consisted of the testimony of
curfew pass. He also offered a certification (dated two years after the accident) Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor
issued by one Major Benjamin N. Libarnes of the Zone Integrated Police at the time he was taken from his smashed car and brought to the Makati
Intelligence Unit of Campo Olivas, San Fernando, Pampanga, which was said to Medical Center in an unconscious condition. This testimony has to be taken in
have authority to issue curfew passes for Pampanga and Metro Manila. This conjunction with the admission of Dionisio that he had taken "a shot or two" of
certification was to the effect that private respondent Dionisio had a valid curfew liquor before dinner with his boss that night. We do not believe that this evidence
pass. This certification did not, however, specify any pass serial number or date or is sufficient to show that Dionisio was so heavily under the influence of liquor as
period of effectivity of the supposed curfew pass. We find that private respondent to constitute his driving a motor vehicle per se an act of reckless imprudence.
Dionisio was unable to prove possession of a valid curfew pass during the night of There simply is not enough evidence to show how much liquor he had in fact
the accident and that the preponderance of evidence shows that he did not have taken and the effects of that upon his physical faculties or upon his judgment or
such a pass during that night. The relevance of possession or non-possession of a mental alertness. We are also aware that "one shot or two" of hard liquor may
curfew pass that night lies in the light it tends to shed on the other related issues: affect different people differently.
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 Same; The theory of petitioners that the negligence of the truck driver in parking
arrest by the police in the nearby police station for travelling after the onset of his truck on the street without any early warning devices is merely a passive and
curfew without a valid curfew pass. static condition, while the negligence of the car driver in ramming against the
truck was the efficient, intervening cause, is a theory that has already been almost
Same; Same; Information gathered by a traffic investigator from persons who saw entirely discredited.—The petitioners, however, urge that the truck driver's
how the accident took place is admissible as part of the res gestae.—We think that negligence was merely a "passive and static condition" and that private
an automobile speeding down a street and suddenly smashing into a stationary respondent Dionisio's negligence was an "efficient intervening cause," and that
object in the dead of night is a sufficiently startling event as to evoke consequently Dionisio's negligence must be regarded as the legal and proximate
spontaneous, rather than reflective, reactions from observers who happened to be cause of the accident rather than the earlier negligence of Carbonel. We note that
around at that time. The testimony of Patrolman Cuyno was therefore admissible the petitioners' arguments are drawn from a reading of some of the older cases in
as part of the res gestae and should have been considered by the trial court. various jurisdictions in the United States but we are unable to persuade ourselves
Clearly, substantial weight should have been ascribed to such testimony, even that these arguments have any validity for our jurisdiction. We note, firstly, that
though it did not, as it could not, have purported to describe quantitatively the even in the United States, the distinctions between "cause" and "condition" which
precise velocity at which Dionisio was travelling just before impact with the the petitioners would have us adopt have already been "almost entirely
Phoenix dump truck. discredited." Professors Prosser and Keeton make this quite clear: x x x.

Same; Same; Petitioner's theory that respondent deliberately shut off his Same; The improper parking of truck created an unreasonable risk for anyone
headlights as he turned the intersection where his car later on bumped a parked driving on that street for which the truck driver should be held responsible as the
dumptruck is more credible than respondent's claim that his car's lights suddenly negligence of a car driver bumping that truck was no more than a forseeable
turned off.—A third related issue is whether Dionisio purposely turned off his consequence of the risk created by the truck driver.—We believe, secondly, that the
headlights, or whether his headlights accidentally malfunctioned, just moments truck driver's negligence far from being a "passive and static condition" was
before the accident. The Intermediate Appellate Court expressly found that the rather an indispensable and efficient cause. The collision between the dump truck
headlights of Dionisio's car went off as he crossed the intersection but was non- and the private respondent's car would in all probability not have occurred had
committal as to why they did so. It is the petitioners' contention that Dionisio the dump truck not been parked askew without any warning lights or reflector
purposely shut off his headlights even before he reached the intersection so as not 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 terms, is to determine whose negligence—the plaintiffs or the defendant's—was
negligence, although later in point of time than the truck driver's negligence and the legal or proximate cause of the injury. That task is not simply or even
therefore closer to the accident, was not an efficient intervening or independent primarily an exercise in chronology or physics, as the petitioners seem to imply by
cause. What the petitioners describe as an "intervening cause" was no more than the use of terms like "last" or "intervening" or "immediate." The relative location
a foreseeable consequence of the risk created by the negligent manner in which in the continuum of time of the plaintiff s and the defendant's negligent acts or
the truck driver had parked the dump truck. In other words, the petitioner truck omissions, is only one of the relevant factors that may be taken into account. Of
driver owed a duty to private respondent Dionisio and others similarly situated more fundamental importance are the nature of the negligent act or omission of
not to impose upon them the very risk the truck driver had created. Dionisio's each party and the character and gravity of the risks created by such act or
negligence was not of an independent and overpowering nature as to cut, as it omission for the rest of the community. The petitioners urge that the truck driver
were, the chain of causation in fact between the improper parking of the dump (and therefore his employer) should be absolved from responsibility for his own
truck and the accident, nor to sever the juris vinculum of liability. 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
Same; Negligence of car driver who bumps an improperly parked truck is merely truck driver's own wrongful act or omission. To accept this proposition is to come
contributory.—We hold that private respondent Dionisio's negligence was "only too close to wiping out the fundamental principle of law that a man must respond
contributory," that the "immediate and proximate cause" of the injury remained for the forseeable consequences of his own negligent act or omission. Our law on
the truck driver's "lack of due care" and that consequently respondent Dionisio quasi-delicts seeks to reduce the risks and burdens of living in society and to
may recover damages though such damages are subject to mitigation by the allocate them among the members of society. To accept the petitioners'
courts (Article 2179, Civil Code of the Philippines). proposition must tend to weaken the very bonds of society.

Same; Doctrine of "last clear chance" is a common-law theory adopted to mitigate Same; Employer's failure to exercise vigilance over its employee evident from the
the harshness of the "contributory negligence of the plaintiff rule under which in improper parking of the truck on the street at night along employee's residence.—
common-law countries plaintiff is barred from any recovery, unlike in our system Petitioner Carbonel's proven negligence creates a presumption of negligence on
of law where the Civil Code expressly states that it will merely reduce the amount the part of his employer Phoenix in supervising its employees properly and
to be recovered.—Petitioners also ask us to apply what they refer to as the "last adequately. The respondent appellate court in effect found, correctly in our
clear chance" doctrine. The theory here of petitioners is that while the petitioner opinion, that Phoenix was not able to overcome this presumption of negligence.
truck driver was negligent, private respondent Dionisio had the "last clear The circumstance that Phoenix had allowed its truck driver to bring the dump
chance" of avoiding the accident and hence his injuries, and that Dionisio having truck to his home whenever there was work to be done early the following
failed to take that "last clear chance" must bear his own injuries alone. The last morning, when coupled with the failure to show any effort on the part of Phoenix
clear chance doctrine of the common law was imported into our jurisdiction by to supervise the manner in which the dump truck is parked when away from
Picart vs. Smith but it is a matter for debate whether, or to what extent, it has company premises, is an affirmative showing of culpa in vigilando on the part of
found its way into the Civil Code of the Philippines. The historical function of that Phoenix.
doctrine in the common law was to mitigate the harshness of another common law
doctrine or rule—that of contributory negligence. The common law rule of Same; Contributory negligence may result in 20% reduction of damages.—Turning
contributory negligence prevented any recovery at all by a plaintiff who was also to the award of damages and taking into account the comparative negligence of
negligent, even if the plaintiff s negligence was relatively minor as compared with private respondent Dionisio on one hand and petitioners Carbonel and Phoenix
the wrongful act or omission of the defendant. The common law notion of last upon the other hand, we believe that the demands of substantial justice are
clear chance permitted courts to grant recovery to a plaintiff who had also been satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the
negligent provided that the defendant had the last clear chance to avoid the damages awarded by the respondent appellate court, except the award of
casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs,
common law last clear chance doctrine has to play in a jurisdiction where the shall be borne by private respondent Dionisio; only the balance of 80% needs to be
common law concept of contributory negligence as an absolute bar to recovery by paid by petitioners Carbonel and Phoenix who shall be solidarily liable therefor to
the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil the former. The award of exemplary damages and attorney's fees and costs shall
Code of the Philippines. be borne exclusively by the petitioners. Phoenix is of course entitled to
reimbursement from Carbonel. We see no sufficient reason for disturbing the
Same; Doctrine of last clear chance in common law cannot be applied as a general reduced award of damages made by the respondent appellate court.
PETITION for review of the decision of the Intermediate Appellate Court.
rule in negligence cases in our civil law system.—Is there perhaps a general The facts are stated in the opinion of the Court.
concept of "last clear chance" that may be extracted from its common law matrix FELICIANO, J.:

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 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 experienced by plaintiff and his family since the accident in controversy up to the present
Street, Bangkal, Makati—from a cocktails-and-dinner meeting with his boss, the time;
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 (4)
To pay plaintiff jointly and severally the sum of P10,000.00 as exemplary damages for
Volkswagen car and had just crossed the intersection of General Lacuna and the wanton disregard of defendants to settle amicably this case with the plaintiff before the
General Santos Streets at Bangkal, Makati, not far from his home, and was filing of this case in court for a smaller amount.
proceeding down General Lacuna Street, when his car headlights (in his
allegation) suddenly failed. He switched his headlights on "bright" and thereupon (5)
To pay the plaintiff jointly and severally the sum of P4,500.00 due as and for attorney 's
he saw a Ford dump truck looming some 2-½ meters away from his car. The dump fees; and
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., (6)
The cost of suit." (Italics supplied)
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 Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court
parked askew (not parallel to the street curb) in such a manner as to stick out in CA-G.R. No. 65476 affirmed the decision of the trial court but modified the
onto the street, partly blocking the way of oncoming traffic. There were no lights award of damages to the following extent:
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
1.
The award of P1 5,000.00 as compensatory damages was reduced to P6,460.71, the latter
by petitioner Armando U. Carbonel, its regular driver, with the permission of his being the only amount that the appellate court found the plaintiff to have proved as actually
employer Phoenix, in view of work scheduled to be carried out early the following sustained by him;
morning, Dionisio claimed that he tried to avoid a collision by swerving his car to
the lef t but it was too late and his car smashed into the dump truck. As a result
2.
The award of P1 50,000.00 as loss of expected income was reduced to P100,000.00,
of the collision, Dionisio suffered some physical injuries including some basically because Dionisio had voluntarily resigned his job such that, in the opinion of the
permanent facial scars, a "nervous breakdown" and loss of two gold bridge appellate court, his loss of income "was not solely attributable to the accident in question;"
dentures. and

Dionisio commenced an action for damages in the Court of First Instance of 3.
The award of P100,000.00 as moral damages was held by the appellate court as
Pampanga basically claiming that the legal and proximate cause of his injuries excessive and unconscionable and hence reduced to P50,000.00.
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 The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees
hand, countered that the proximate cause of Dionisio's injuries was his own and costs remained un touched.
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
This decision of the Intermediate Appellate Court is now before us on a petition
sought to establish that it had exercised due care in the selection and supervision
for review.
of the dump truck driver.

Both the trial court and the appellate court had made fairly explicit findings of
The trial court rendered judgment in favor of Dionisio and against Phoenix and
fact relating to the manner in which the dump truck was parked along General
Carbonel and ordered the latter:
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
"(1)
To pay plaintiff jointly and severally the sum of P15,000.00 for hospital bills and the negligence was the proximate cause of the accident and Dionisio's injuries. We
replacement of the lost dentures of plaintiff; 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
(2)
To pay plaintiff jointly and severally the sum of P150,000.00 as loss of expected income way in which the dump truck had been parked but rather the reckless way in
for plaintiff brought about the accident in controversy and which is the result of the which Dionisio had driven his car that night when he smashed into the dump
negligence of the defendants;
truck. The Intermediate Appellate Court in its questioned decision casually
conceded that Dionisio was "in some way, negligent" but apparently failed to see
(3)
To pay the plaintiff jointly and severally the sum of P100,000.00 as moral damages for the relevance of Dionisio's negligence and made no further mention of it. We have
the unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing examined the record both bef ore the trial court and the Intermediate Appellate
man; mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched
Court and we find that both parties had placed into the record sufficient evidence
reputation, feeling of economic insecurity, and the untold sorrows and frustration in life
on the basis of which the trial court and the appellate court could have and should The defendants in the trial court introduced the testimony of Patrolman Cuyno
have made findings of fact relating to the alleged reckless manner in which who was at the scene of the accident almost immediately after it occurred, the
Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend police station where he was based being barely 200 meters away. Patrolman
that if there was negligence in the manner in which the dump truck was parked, Cuyno testified that people who had gathered at the scene of the accident told him
that negligence was merely a "passive and static condition" and that private that Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio,
respondent Dionisio's recklessness constituted an intervening, efficient cause on the other hand, claimed that he was travelling at a moderate speed at 30
determinative of the accident and the injuries he sustained. The need to kilometers per hour and had just crossed the intersection of General Santos and
administer substantial justice as between the parties in this case, without having General Lacuna Streets and had started to accelerate when his headlights failed
to remand it back to the trial court after eleven years, compels us to address just before the collision took place.3
directly the contention put forward by the petitioners and to examine for
ourselves the record pertaining to Dionisio's alleged negligence which must bear Private respondent Dionisio asserts that Patrolman Cuyno's testimony was
upon the liability, or extent of liability, of Phoenix and Carbonel. hearsay and did not fall within any of the recognized exceptions to the hearsay
rule since the facts he testified to were not acquired by him through official
There are four factual issues that need to be looked into: (a) whether or not information and had not been given by the informants pursuant to any duty to do
private respondent Dionisio had a curfew pass valid and effective for that eventful so. Private respondent's objection fails to take account of the fact that the
night; (b) whether Dionisio was driving fast or speeding just before the collision testimony of Patrolman Cuyno is admissible not under the official records
with the dump truck; (c) whether Dionisio had purposely turned off his car's exception to the hearsay rule4 but rather as part of the res gestae.5 Testimonial
headlights before contact with the dump truck or whether those headlights evidence under this exception to the hearsay rule consists of excited utterances
accidentally malfunctioned moments before the collision; and (d) whether Dionisio made on the occasion of an occurrence or event sufficiently startling in nature so
was intoxicated at the time of the accident. 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
As to the first issue relating to the curfew pass, it is clear that no curfew pass was result of reflective thought.6
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 We think that an automobile speeding down a street and suddenly smashing into
Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for a stationary object in the dead of night is a sufficiently startling event as to evoke
emergency treatment immediately after the accident. At the Makati Medical spontaneous, rather than reflective, reactions from observers who happened to be
Center, a nurse took off Dionisio's clothes and examined them along with the around at that time. The testimony of Patrolman Cuyno was therefore admissible
contents of pockets together with Patrolman Cuyno.1 Private respondent Dionisio as part of the res gestae and should have been considered by the trial court.
was not able to produce any curfew pass during the trial. Instead, he offered the Clearly, substantial weight should have been ascribed to such testimony, even
explanation that his family may have misplaced his curfew pass. He also offered a though it did not, as it could not, have purported to describe quantitatively the
certification (dated two years after the accident) issued by one Major Benjamin N. precise velocity at which Dionisio was travelling just before impact with the
Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Phoenix dump truck.
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 A third related issue is whether Dionisio purposely turned off his headlights, or
respondent Dionisio had a valid curfew pass. This certification did not, however, whether his headlights accidentally malfunctioned, just moments before the
specify any pass serial number or date or period of effectivity of the supposed accident. The Intermediate Appellate Court expressly found that the headlights of
curfew pass. We find that private respondent Dionisio was unable to prove Dionisio's car went off as he crossed the intersection but was non-committal as to
possession of a valid curfew pass during the night of the accident and that the why they did so. It is the petitioners' contention that Dionisio purposely shut off
preponderance of evidence shows that he did not have such a pass during that his headlights even bef ore he reached the intersection so as not to be detected by
night. The relevance of possession or non-possession of a curfew pass that night the police in the police precinct which he (being a resident in the area) knew was
lies in the light it tends to shed on the other related issues: whether Dionisio was not far away from the intersection. We believe that the petitioners' theory is a
speeding home and whether he had indeed purposely put out his headlights more credible explanation than that offered by private respondent Dionisio—i.e.,
before the accident, in order to avoid detection and possibly arrest by the police in that he had his headlights on but that, at the crucial moment, these had in some
the nearby police station for travelling after the onset of curfew without a valid mysterious if convenient way malfunctioned and gone off, although he succeeded
curfew pass. in switching his lights on again at "bright" split seconds before contact with the
dump truck.
On the second issue—whether or not Dionisio was speeding home that night—
both the trial court and the appellate court were completely silent. 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 defendant who spills gasoline about the premises creates a "condition," but the act may
the effect that private respondent Dionisio smelled of liquor at the time he was be culpable because of the danger of fire. When a spark ignites the gasoline, the condition
taken from his smashed car and brought to the Makati Medical Center in an 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
unconscious condition.7 This testimony has to be taken in conjunction with the
lapse of a considerable time during which the "condition" remains static will not necessarily
admission of Dionisio that he had taken "a shot or two" of liquor before dinner affect liability; one who digs a trench in the highway may still be liable to another who falls
with his boss that night. We do not believe that this evidence is sufficient to show into it a month afterward. "Cause" and "condition" still find occasional mention in the
that Dionisio was so heavily under the influence of liquor as to constitute his decisions,; but the distinction is now almost entirely discredited. So far as it has any validity
driving a motor vehicle per se an act of reckless imprudence.8 There simply is not at all, it must refer to the type of case where the forces set in operation by the defendant
enough evidence to show how much liquor he had in fact taken and the effects of have come to rest in a position of apparent safety, and some new force intervenes. But even
that upon his physical faculties or upon his judgment or mental alertness. We are in such cases, it is not the distinction between "cause" and "condition" which is important,
also aware that "one shot or two" of hard liquor may aff ect dif f erent people dif f but the nature of the risk and the character of the intervening cause. "9
erently.
We believe, secondly, that the truck driver's negligence far from being a "passive
The conclusion we draw from the factual circumstances outlined above is that and static condition" was rather an indispensable and efficient cause. The
private respondent Dionisio was negligent the night of the accident. He was collision between the dump truck and the private respondent's car would in all
hurrying home that night and driving faster than he should have been. Worse, he probability not have occurred had the dump truck not been parked askew without
extinguished his headlights at or near the intersection of General Lacuna and any warning lights or reflector devices. The improper parking of the dump truck
General Santos Streets and thus did not see the dump truck that was parked created an unreasonable risk of injury for anyone driving down General Lacuna
askew and sticking out onto the road lane. 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
Nonetheless, we agree with the Court of First Instance and the Intermediate efficient intervening or independent cause. What the petitioners describe as an
Appellate Court that the legal and proximate cause of the accident and of "intervening cause" was no more than a foreseeable consequence of the risk
Dionisio's injuries was the wrongful or negligent manner in which the dump truck created by the negligent manner in which the truck driver had parked the dump
was parked—in other words, the negligence of petitioner Carbonel. That there truck. In other words, the petitioner truck driver owed a duty to private
was a reasonable relationship between petitioner Carbonel's negligence on the respondent Dionisio and others similarly situated not to impose upon them the
one hand and the accident and respondent's injuries on the other hand, is quite very risk the truck driver had created. Dionisio's negligence was not of an
clear. Put in a slightly different manner, the collision of Dionisio's car with the independent and overpowering nature as to cut, as it were, the chain of causation
dump truck was a natural and foreseeable consequence of the truck driver' s in fact between the improper parking of the dump truck and the accident, nor to
negligence. sever the juris vinculum of liability. It is helpful to quote once more from Prosser
and Keeton:
The petitioners, however, urge that the truck driver's negligence was merely a
"passive and static condition" and that private respondent Dionisio's negligence "Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human
was an "efficient intervening cause," and that consequently Dionisio's negligence experience is reasonably to be anticipated, or one which the defendant has reason to
must be regarded as the legal and proximate cause of the accident rather than the anticipate under the particular circumstances, the defendant may be negligent, among other
earlier negligence of Carbonel. We note that the petitioners' arguments are drawn reasons, because of failure to guard against it; or the defendant may be negligent only for
from a reading of some of the older cases in various jurisdictions in the United that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and
States but we are unable to persuade ourselves that these arguments have any customary wind arising later will spread it beyond the defendant's own property, and
therefore to take precautions to prevent that event. The person who leaves the combustible
validity for our jurisdiction. We note, firstly, that even in the United States, the
or explosive material exposed in a public place may foresee the risk of fire from some
distinctions between "cause" and "condition" which the petitioners would have us independent source. x x x In all of these cases there is an intervening cause combining with
adopt have already been "almost entirely discredited." Professors Prosser and the defendant's conduct to produce the result, and in each case the defendant's negligence
Keeton make this quite clear: consists in failure to protect the plaintiff against that very risk.

"Cause and condition. Many courts have sought to distinguish between the active "cause" of Obviously the defendant cannot be relieved from liability by the fact that the risk or a
the harm and the existing "conditions" upon which that cause operated. If the defendant has substantial and important part of the risk, to which the defendant has subjected the plaintiff
created only a passive static condition which made the damage possible, the defendant is has indeed come to pass. Foreseeable intervening forces are within the scope of the original
said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary risk, and hence of the defendant's negligence. The courts are quite generally agreed that
antecedents which have played an important part in producing the result, it is quite intervening causes which fall fairly in this category will not supersede the defendant's
impossible to distinguish between active forces and passive situations, particularly since, as responsibility.
is invariably the case, the latter are the result of other active forces which have gone before.
Thus it has been held that a defendant will be required to anticipate the usual weather into account. Of more fundamental importance are the nature of the negligent act
of the vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or or omission of each party and the character and gravity of the risks created by
frost or fog or even lightning; that one who leaves an obstruction on the road or a railroad such act or omission for the rest of the community. The petitioners urge that the
track should foresee that a vehicle or a train will run into it; x x x.
truck driver (and therefore his employer) should be absolved from responsibility
for his own prior negligence because the unfortunate plaintiff failed to act with
The risk created by the defendant may include the intervention of the foreseeable that increased diligence which had become necessary to avoid the peril precisely
negligence of others. x x x [T]he standard of reasonable conduct may require the defendant to created by the truck driver's own wrongful act or omission. To accept this
protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents
proposition is to come too close to wiping out the fundamental principle of law
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 that a man must respond for the forseeable consequences of his own negligent act
heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of
negligently driven; and one who parks an automobile on the highway without lights at night living in society and to allocate them among the members of society. To accept the
is not relieved of responsibility when another negligently drives into it. - - -"10 petitioners' proposition must tend to weaken the very bonds of society.

We hold that private respondent Dionisio's negligence was "only contributory," Petitioner Carbonel's proven negligence creates a presumption of negligence on
that the "immediate and proximate cause" of the injury remained the truck the part of his employer Phoenix16 in supervising its employees properly and
driver's "lack of due care" and that consequently respondent Dionisio may recover adequately. The respondent appellate court in effect found, correctly in our
damages though such damages are subject to mitigation by the courts (Article opinion, that Phoenix was not able to overcome this presumption of negligence.
2179, Civil Code of the Philippines). 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
Petitioners also ask us to apply what they refer to as the "last clear chance" morning, when coupled with the failure to show any effort on the part of Phoenix
doctrine. The theory here of petitioners is that while the petitioner truck driver to supervise the manner in which the dump truck is parked when away from
was negligent, private respondent Dionisio had the "last clear chance" of avoiding company premises, is an affirmative showing of culpa in vigilando on the part of
the accident and hence his injuries, and that Dionisio having failed to take that Phoenix.
"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. Turning to the award of damages and taking into account the comparative negligence of
Smith11 but it is a matter for debate whether, or to what extent, it has found its private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the
way into the Civil Code of the Philippines. The historical function of that doctrine 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
in the common law was to mitigate the harshness of another common law doctrine
appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as
or rule—that of contributory negligence.12 The common law rule of contributory attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of
negligence prevented any recovery at all by a plaintiff who was also negligent, 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily liable
even if the plaintiff s negligence was relatively minor as compared with the therefor to the former. The award of exemplary damages and attorney's fees and costs shall
wrongful act or omission of the defendant.13 The common law notion of last clear be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from
chance permitted courts to grant recovery to a plaintiff who had also been Carbonel.18 We see no sufficient reason for disturbing the reduced award of damages made
negligent provided that the defendant had the last clear chance to avoid the by the respondent appellate court.
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 WHEREFORE, the decision of the respondent appellate court is modified by reducing
common law concept of contributory negligence as an absolute bar to recovery by the aggregate amount of compensatory damages, loss of expected income and moral
the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil damages private respondent Dionisio is entitled to by 20% of such amount. Costs against
Code of the Philippines.15 the petitioners. SO ORDERED. Decision modified.

Notes.—In a serious physical injuries case resulting from a collision between two motor
Is there perhaps a general concept of "last clear chance" that may be extracted
vehicles, the conviction upon a plea of guilt of the driver of one of the vehicles cannot be
from its common law matrix and utilized as a general rule in negligence cases in a used as an argument for the acquittal of the driver of the other vehicle, if there is sufficient
civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task evidence that the latter drove his vehicle in a careless, reckless and imprudent manner
of a court, in technical terms, is to determine whose negligence—the plaintiff s or which resulted in serious injuries to the complainant. (People vs. De la Merced, 7 SCRA
the defendant's—was the legal or proximate cause of the injury. That task is not 291.)
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 A motor vehicle owner is not an absolute owner against all damages raised by its driver. The
relative location in the continuum of time of the plaintiff s and the defendant's owner's responsibility ceases once it proves that it has observed the diligence of a good
negligent acts or omissions, is only one of the relevant factors that may be taken father of a family to prevent the damage. (Ramos vs. Pepsi Cola Bottling Co., 19 SCRA 294.)
[No. 1719. January 23, 1907.] ivstnl stringers of the same thickness, but from 24 to 30 feet in length. On and
across the stringers and parallel with the blocks were the ties to which the tracks
M. H. RAKES, plaintiff and appellee, vs. THE ATLANTIC, GULF AND PACIFIC were fastened. After the road reached the water's edge, the blocks or crosspieces
COMPANY, defendant and appellant. were replaced with piling, 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 110 side pieces or
1.
CIVIL LIABILITY FOR DAMAGES.—In order to enforce the liability of an
guards on the car; that where the ends of the rails of the track met each other and
employer for injuries to his employee, it is not necessary that a criminal action be also where the stringers joined, there were no fish plates. The defendant has not
first prosecuted against the employer or his representative primarily chargeable effectually overcome the plaintiff's proof that the joints between the rails were
with the accident. No criminal proceeding having been taken, the civil action may immediately above the joints between the underlying stringers.
proceed to judgment.

The cause of the sagging of the track and the breaking of the tie, which was the
2.
LIABILITY OF EMPLOYER TO WORKMEN.—The responsibility of an immediate occasion of the accident, is not clear in the evidence, but is found by
employer to his employee arises out of the contractual relations between them
the trial court and is admitted in the briefs and in the argument to have been the
and is regulated by article 1101 and the following articles of the Civil Code. 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
3.
FELLOW-SERVANT RULE.—The doctrine known as the "Fellow-servant the giving way of the block laid in the sand. No effort was made to repair the
rule," exonerating the employer where the injury was incurred through the injury at the time of the occurrence. According to plaintiff's witnesses, a
negligence of a fellow-servant of the employee injured, is not adopted in depression of the track, varying from one-half inch to one inch and a half, was
Philippine jurisprudence. thereafter 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
4.
CONTRIBUTORY NEGLIGENCE.—The negligence of the injured person and asked him to have it repaired. After the accident it was mended by simply
contributing to his injury but not being one of the determining causes of the straightening out the crosspiece, resetting the block under the stringer and
principal accident, does not operate as a bar to recovery, but only in reduction of renewing the tie, but otherwise leaving the very same timbers as before. It has
his damages. Each party is chargeable with damages in proportion to his fault. not been proved that the company inspected the track after the typhoon or had
APPEAL from a judgment of the Court of First Instance of Manila. any proper system of inspection.
TRACEY, J.:

In order to charge the defendant with negligence, it was necessary to show a


This is an action for damages. The plaintiff, one of a gang of eight negro laborers
breach of duty on its part in failing either to properly secure the load of iron to the
in the employment of the defendant, was at work transporting iron rails from a
vehicles transporting it, or to skillfully build the trainway or to maintain it in
barge in the harbor to the company's yard near the Malecon in Manila. Plaintiff
proper condition, or to vigilantly inspect and repair the roadway as soon as the
claims that but one hand car was used in this work. The defendant has proved
depression in it became visible. It is upon the failure of the defendant to repair
that there were two immediately following one another, upon which were piled
the weakened track, after notice of its condition, that the judge below based his
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails
judgment.
projected beyond the cars both in front and behind. The rails lay ujMm two
crosspieces or sills secured to the cars, but without side pieces or guards to
prevent them from slippingoff. According to the testimony of the plaintiff, the men This case presents many important matters for our decision, and first among
were worc either in the rear of the car or at its sides. According to that of the them is the standard of duty which we shall establish in our jurisprudence on the
defendant, some of them were also in front, hauling by a rope. At a certain spot at part of employers toward employees.
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 The lack or the harshness of legal rules on this subject has led many countries to
afterwards amputated at about the knee. enact laws designed to put these relations on a fair basis in the form of
compensation or liability laws or the institution of industrial insurance. In the
The first point for the plaintiff to establish was that the accident happened absence of special legislation we find no difficulty in so applying the general
through the negligence of the defendant. The detailed description by the principles of our law as to work out a just result.
defendant's witnesses of the construction and quality of the track proves that it
was up to the general standard of trainways of that character, the foundation Article 1092 of the Civil Code provides:
consisting on land of blocks or cross-pieces of wood, 6 by 8 inches thick and from 8
to 10 feet long, laid on the surface of the ground, upon which at a right angle "Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions
of the Penal Code." "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."
And article 568 of the latter code provides:
As an answer to the argument urged in this particular action it may be sufficient
"He who shall execute through reckless negligence an act that if done with malice would to point out that nowhere in our general statutes is the employer penalized for
constitute a grave crime, shall be punished." 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
And article 590 provides that the following shall be punished:
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
"4. Those who by simple imprudence or negligence, without committing any infraction of of effect, would shut out litigants against their will from the civil courts, would
regulations, shall cause an injury which, had malice intervened, would have constituted a
make the assertion of their rights dependent upon the selection for prosecution of
crime or misdemeanor."
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
And finally by articles 19 and 20, the liability of owners and employers for the stood alone, such a construction would be unnecessary, but clear light is thrown
faults of their servants and representatives is declared to be civil and subsidiary upon their meaning by the provisions of the Law of Criminal Procedure of Spain
in its character. (Ley de Enjuiciamiento Criminal), which, though never in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111
It is contended by the defendant, as its first defense to the action, that the of this law, both classes of action, civil and criminal, might be prosecuted jointly
necessary conclusion from these collated laws is that the remedy for injuries or separately, but while the penal action was pending the civil was suspended.
through negligence lies only in a criminal action in which the official criminally According to article 112, the penal action once started, the civil remedy should be
responsible must be made primarily liable and his employer held only subsidiarily sought therewith, unless it had been waived by the party injured or been
to him. According to this theory the plaintiff should have procured the arrest of expressly reserved by him for civil proceedings for the future. If the civil action
the representative of the company accountable for not repairing the track, and on alone was prosecuted, arising out of a crime that could be enforced only on private
his prosecution a suitable fine should have been imposed, payable primarily by complaint, the penal action thereunder should be extinguished. These provisions
him and secondarily by his employer. are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
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 An examination of this topic might be carried much further, but the citation of
not punished by the law, subject to the provisions of Chapter II of Title XVI. these articles suffices to show that the civil liability was not intended to be
Section 1902 of that chapter reads: merged in the criminal nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a negligent act or
"A person who by an act or omission causes damage to another when there is fault or omission, it is not required that the injured party should seek out a third person
negligence shall be obliged to repair the damage so done. criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
"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 Under article 20 of the Penal Code the responsibility of an employer may be
responsible. regarded as subsidiary in respect of criminal actions against his employees only
while they are in process of prosecution, or in so far as they determine the
"The father, and on his death or incapacity, the mother, is liable for the damages caused by existence of the criminal act from which liability arises, and his obligation under
the minors who live with them. the civil law and its enforcement in the civil courts is not barred thereby unless by
the election of the injured person. Inasmuch as no criminal proceeding had been
* * * * * instituted, growing out of the accident in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary to finally
"Owners or directors of an establishment or enterprise are equally liable for the damages determine here whether this subsidiary civil liability in penal actions has
caused by their employees in the service of the branches in which the latter may be survived the laws that fully regulated it or has been abrogated by the American
employed or in the performance of their duties. civil and criminal procedure now in force in the Philippines.

* * * * *
The difficulty in construing the articles of the code above cited in this case The original French theory, resting the responsibility of owners of industrial
appears from the briefs before us to have arisen from the interpretation of the enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,
words of article 1093, "fault or negligence not punished by law," as applied to the corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It yielded to the principle that the true basis is the contractual obligation of the
has been shown that the liability of an employer arising out of his relation to his employer and employee. (See 18 Dalloz, 1896, Title Travail, 331.)
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 Later the hardships resulting from special exemptions inserted in contracts for
this, however, it can not be said to fall within the class of acts unpunished by the employment led to the discovery of a third basis for liability in an article of the
law, the consequences of which are regulated by articles 1902 and 1903 of the French Code making the possessor of any object answerable for damage done by it
Civil Code. The acts to which these articles are applicable are understood to be while in his charge. Our law having no counterpart of this article, applicable to
those not growing out of preexisting duties of the parties to one another. But every kind of object, we need consider neither the theory growing out of it nor that
where relations already formed give rise to duties, whether springing from of "professional risk" more recently imposed by express legislation, but rather
contract or quasi contract, then breaches of those duties are subject to articles adopting the interpretation of our Civil Code above given, find a rule for this case
1101, 1103, and 1104 of the same code. A typical application of this distinction in the contractual obligation. This contractual obligation, implied from the
may be found in the consequences of a railway accident due to defective relation and perhaps so inherent in its nature to be invariable by the parties,
machinery supplied by the employer. His liability to his employee would arise out binds the employer to provide safe appliances for the use of the employee, thus
of the contract of employment, that to the passengers out of the contract for closely corresponding to English and American law. On these principles it was the
passage, while that to the injured bystander would originate in the negligent act duty of the defendant to build and to maintain its track in reasonably sound
itself. This distinction is thus clearly set forth by Manresa in his commentary on condition, so as to protect its workingmen from unnecessary danger. It is plain
article 1093: that in one respect or the other it failed in its duty, otherwise the accident could
not have occurred; cousequently the negligence of the defendant is established.
"We see with reference to such obligations, that culpa, or negligence, may be understood in
two different senses; either as culpa, substantive and independent, which 011 account of its
origin arises in an obligation between two persons not formerly bound by any other
Another contention of the defense is that the injury resulted to the plaintiff as a
obligation; or as an incident in the performance of an obligation which already existed, risk incident to his employment and, as such, one assumed by hiiu. It is evident
which can not be presumed to exist without the other, and which increases the liability that this can not be the case if the occurrence was due to the failure to repair the
arising from the already existing obligation. 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
"Of these two species of CII?/MI the first one mentioned, existing by itself, may be also ground that the negligence leading to the accident was that of a fellow-servant of
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this the injured man. It is not apparent to us that the intervention of a third person
book of the code is devoted to it, it is logical to presume that the reference contained in can relieve the defendant from the performance of its duty nor impose upon the
article 1093 is limited thereto and that it does not extend to those provisions relating to the plaintiff the consequences of an act or omission not his own. Sua cuique culpa
other species of culpa (negligence), the nature of which we will discuss later." (Vol. 8, p. 29.) 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
And in his commentary on articles 1102 and 1104 he says that these two species of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been
of negligence may be somewhat inexactly described as contractual and extra- effectually abrogated by "the Employers' Liability Acts" and the "Compensation
contractual, the latter being the culpa aquiliana of the Roman law and not Compensation Law." The American States which applied it appear to be gradually
entailing so strict an obligation as the former. This terminology is unreservedly getting rid of it; for instance, the New York State legislature of 1906 did away
accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, with it in respect to railroad companies, and had in hand a scheme for its total
No. 12), and the principle stated is supported by decisions of the supreme court of abolition. It has never found place in the civil law of continental Europe. (Dalloz,
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. vol. 30, 1858, Title Responsibilité, 630, and vol. 15, 1895, same title, 804. Also
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for more recent instances in Fuzier-Herman, Title Responsibilité Civile, 710.)
hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
The French Cour de Cassation clearly laid down the contrary trary principle in its
Spanish jurisprudence, prior to the adoption of the Working Men's Accident Law judgment of June 28,1841, in the case of Reygasse, and has since adhered to it.
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 The most controverted question in the case is that of the negligence of the
of France early applied to the subject the principles common to the law of both plaintiff, contributing to the accident, to what extent it existed in fact and what
countries, which are lucidly discussed by the leading French commentators. 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 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
Second. That he walked on the ends of the ties at the side of the car instead of side of the car, and the foreman swears that he repeated the prohibition before
along the boards, either before or behind it. 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
As to the first point, the depression in the track might indicate either a serious or
plaintiff in placing himself in danger contributed in some degree to the injury as a
a trivial difficulty. There is nothing in the evidence to show that the plaintiff did proximate, although not as its primary cause. This conclusion presents sharply
or could see the displaced timber underneath the sleeper. The claim that he must the question, What effect is to be given such an act of contributory negligence?
have done so is a conclusion drawn from what is assumed to have been a probable Does it defeat a recovery, according to the American rule, or is it to be taken only
condition of things not before us, rather than a fair inference from the testimony.
in reduction of damages?
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 While a few of the American States have adopted to a greater or less extent the
a displacement of the underlying timbers. The foreman testified that he knew the doctrine of comparative negligence, allowing a recovery by a plaintiff whose own
state of the track on the day of the accident and that it was then in good act contributed to his injury, provided his negligence 'Was slight as compared
condition, and one Danridge, a witness for the defendant, Working on the same with that of the defendant, and some others have accepted the theory of
job, swore that he never noticed the depression in the track and never saw any proportional damages, reducing the award to a plaintiff in proportion to his
bad place in it. The sagging of the track this plaintiff did perceive, but that was responsibility for the accident, yet the overwhelming weight of adjudication
reported in his hearing to the foreman who neither promised nor refused to repair establishes the principle in American jurisprudence that any negligence, however
it. His lack of caution in continuing at his work after noticing the slight slight, on the part of the person injured which is one of the causes proximately
depression of the rail was not of so gross a nature as to constitute negligence, contributing to his injury, bars his recovery. (English and American Encyclopedia
barring his recovery under the severe American rule. On this point we accept the of law, Titles "Comparative Negligence" and "Contributory Negligence.")
conclusion of the trial judge who found as facts that "the plaintiff did not know
the cause of the one rail being lower than the other" and "it does not appear in In Grand Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
this case that the plaintiff knew before the accident occurred that the stringers Supreme Court of the United States thus authoritatively states the present rule
and rails joined in the same place." of law:

Were we not disposed to agree with these findings they would, nevertheless, be "Although the defendant's negligence may have been the primary cause of the injury
binding upon us, because not "plainly and manifestly against the weight of complained of, yet an action for such injury can not be maintained if the proximate and
evidence," as those words of section 497, paragraph 3 of the Code of Civil 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
Procedure were interpreted by the Supreme Court of the United States in the De
been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence
la Rama case (201 U. S., 303). 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
In respect of the second charge of m'gligeiur against the plaintiff, the judgment party's negligence."
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 There are many cases in the supreme court of Spain in which the defendant was
to the rails upon it, and further that the circumstances in evidence make it clear exonerated, but when analyzed they prove to have been decided either upon the
that the persons necessary to operate the car could not walk upon the plank point that he was not negligent or that the negligence of the plaintiff was the
between the rails and that, therefore, it was necessary for the employees moving immediate cause of the casualty or that the accident was due to casus fortuitus.
it to get hold upon it as best they could, there is no specific finding upon the Of the first class is the decision of January 26, 1887 (38 Jurisprudencia Criminal,
instruction given by the defendant to its employees to walk only upon the planks, No. 70), in which a railway employee, standing on a car, was thrown therefrom
nor upon the necessity of the plaintiff putting himself upon the ties at the side in and killed by the shock following the backing up of the engine. It was held that
order to get hold upon the car. Therefore the findings of the judge below leave the the management of the train and engine being in conformity with proper rules of
conduct of the plaintiff in walking along the side of the loaded car, upon the open the company, showed no fault on its part.
ties, over the depressed track, free to our inquiry.
Of the second class are the decisions of the 15th of January, the 19th of February,
While the plaintiff and his witnesses swear that not only were they not forbidden and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the
to proceed in this way, but were expressly directed by the foreman to do so, both 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 civil law. Elsewhere we find this practice embodied in legislation; for instance,
impelled against it by the Tajo River, was held due to a freshet as a fortuitous section 2 of article 2398 of the Code of Portugal reads as follows:
cause.
"lf in the case of damage there was fault or negligence on the part of the person injured or
The decision of the 7th of March, 1902, 011 which stress has been laid, rested on on the part of some one else, the indemnification shall be reduced in the first case, and in
two bases, one, that the defendant was not negligent, because expressly relieved the second case it shall be apportioned in proportion to such fault or negligence as provided
in paragraphs 1 and 2 of section 2372."
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 And article 1304 of the Austrian Code provides that the victim who is partly chargeable
running at speed, with the engine whistle blowing was the determining cause of 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
the accident. It is plain that the train was doing nothing but what it had a right to
principally responsible. The principle of proportional damages appears to be also adopted in
do and that the only fault lay with the injured man. His negligence was not article 51 of the S wiss Code. Even in the United States in admiralty jurisdictions, whose
contributory, it was sole, and was of such an efficient nature that without it no principles are derived from the civil law, common fault in cases of collision have been
catastrophe could have happened. disposed of not on the ground of contributory negligence, but on that of equal loss, the fault
of the one party being offset against that of the other. (Ralli vs. Troop, 157 U. S., 386, p.
406.)
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. The damage of both being added together and the sum equally divided, a decree is entered
134), in which the owner of a building was held liable for not furnishing 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.)
protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
Exceptional practice appears to prevail in maritime law in other jurisdictions. The
Spanish Code of Commerce, article 827, makes each vessel liable for its own
None of those cases define the effect to be given the negligence of a plaintiff which
damage when both are at fault; this provision restricted to a single class of
contributed to his injury as one of its causes, though not the principal one, and we
maritime accidents, falls far short of a recognition of the principle of contributory
are left to seek the theory of the civil law in the practice of other countries.
negligence as understood in American law, with which, indeed, it has little in
common. This is plain from other articles of the same code; for instance, article
In France in the case of Marquant, August 20, 1879, the cour de cassation held 829, referring to articles 826, 827, and 828, which provides: "In the cases above
that the carelessness of the victim did not civilly relieve the person without whose mentioned the civil action of the owner against the person liable for the damage is
fault the accident could not have happened, but that the contributory negligence reserved, as well as the criminal liability which may appear.?
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
The rule of the common law, a hard and fast one, not adjustable with respect of
Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilité
the faults of the parties, appears to have grown out of the original method of trial
Civile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1896, Title Travail,
by jury, which rendered difficult a nice balancing of responsibilities and which
363, 364, and vol. 15, 1895, Title Responsibilité, 193, 198).
demanded an inflexible standard as a safeguard against too ready sympathy for
the injured. It was assumed that an exact measure of several concurring faults
In the Canadian Province of Quebec, which has retained for the most part the was unattainable.
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 "The reason why, in cases of mutual concurring negligence, neither party can maintain an
annotations to article 1053 of the code edited by Beauchamps, 1904. One of these action against the other, is, not that the wrong of the one is set off against the wrong of the
is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, other; it is that the law can not measure how much of the damage suffered is attributable to
in which the court of King's bench, otherwise known as the court of appeals, the the plaintiff s own fault. If he were allowed to recover, it might be that he would obtain from
highest authority in the Dominion of Canada on points of French law, held that the other party compensation for his own misconduct." (Heil vs. Glanding, 42 Penn. St. Rep.,
contributory negligence did not exonerate the defendants whose fault had been 493, 499.)
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 "The parties being mutually in fault, there can be no apportionment of damages. The law
tribunals made up of common law judges drawn from other provinces, who have has no scales to determine in such cases whose wrongdoing weighed most in the compound
preferred to impose uniformly throughout the Dominion the English theory of that occasioned the mischief." Railroad vs. Norton, 24 Penn. St. Rep., 465, 469.)
contributory negligence. Such decisions throw no light upon the doctrines of the
Experience with jury trials in negligence cases has brought American courts of the irons from the barge up to the point where you unloaded them on the ground.—A Well, it was pretty
bad character.
review to relax the vigor of the rule by freely exercising the power of setting aside * * * * *
verdicts deemed excessive, through the device of granting new trials, unless "Q. And you were familiar with the track before that—its construction?—A. Familiar with what?
reduced damages are stipulated for, amounting to a partial revision of damages "Q. Well, you have described it here to the court—A. Oh, yes; I knew the condition of the track.
by the courts. It appears to us that the control by the court of the subjectmatter "Q. You knew its condition as you have described it here at the time you were working around there?—A.
Yes, sir.
may be secured on a more logical basis and its judgment adjusted with greater * * * * *
nicety to the merits of the litigants through the practice of offsetting their "Q. And while operating it from the side it was necessary for you to step from board to board on the cross-
respective responsibilities. In the civil-law system this desirable end is not ties which extended out over the stringers?—A. Yes, sir.
"Q. And these were of very irregular shape, were they not?—A. They were in pretty bad condition.
deemed beyond the capacity of its tribunals. * * * * *
"Q. And it was not safe to walk along on the outside of these crosspieces?—A. It was safe if the car stayed
on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going too fast,
Whatever may prove to be the doctrine finally adopted in Spain or in other
because we knew the track was in bad condition just here, and going down too fast we would be liable to
countries under the stress and counter stress of novel schemes of legislation, we run off most any time.
find the theory of damages laid down in this judgment the most consistent with "Q. You knew the track was in bad condition when you got hold?—A. Sure, it was in bad condition.
the history and the principles of our law in these Islands and with its logical * * * * *
"Q. And the accident took place at the point where you believed it to be so dangerous?—A. Yes, sir.
development. "Q. But you knew it was dangerous?—A. Why certainly, anybody could see it; but a workingman had to
work in those days or get arrested for a vag here in Manila."
The court below, while it found that the plaintiff knew in a general way of the bad condition of the track,
Difficulty seems to be apprehended in deciding which acts of the injured party found that he was not informed of the exact cause of the accident, namely, the washing away of the large
shall be considered immediate causes of the accident. The test is simple. crosspiece laid upon the ground or placed upon the posts as the foundation upon which the stringers
Distinction must be made between the accident and the injury, between the event rested. This finding of fact to my mind is plainly and manifestly against the weight of the evidence. Ellis,
a witness for the plaintiff, testified that on the morning of the accident he called the attention of
itself, without which there could have been no accident, and those acts of the
McKenna, the foreman, to the defective condition of the track at this precise point where the accident
victim not entering into it, independent of it, but contributing to his own proper happened. His testimony in part is as f ollows:
hurt. For instance, the cause of the accident under review was the displacement "A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and
of the crosspiece or the failure to replace it. This produced the event giving that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it it
would hold it. He said, you keep on fishing around here for fish plates and you will be fishing for another
occasion for damages—that is, the sinking of the track and the sliding of the iron job the first thing you know.' He says, 'You see too much.'
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 "Q. Who else was present at the time you had this conversation with Mr. McKenna?—A. Well, at that
conversation as far as I can remember, we were all walking down the track and I know that McCoy and
the crosspiece been out of place wholly or partly through his act or omission of
Mr. Rakes was along at the time. I remember them two, but we were all walking down the track in a
duty, that would have been one of the determining causes of the event or accident, bunch, but I disremember them.
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 "Q. Was that the exact language that you used, that you wanted. some fish plates put on?—A. No, sir; I
told him look at that track. I says get some fish plates. I says if there was any fish plates we would fix
conjunction with the occurrence, he contributes only to his own injury, he may that.
recover the amount that the defendant responsible for the event should pay for "Q. What did the fish plates have to do with that?—A. It would have strengthened that joint.
such injury, less a sum deemed a suitable equivalent for his own imprudence. "Q. Why didn't you put the 8 by 8 which was washed crossways in place?—A. That would have taken the
raising of the track and digging out along this upright piece and then putting it up again."

Accepting, though with some hesitation, the judgment of the trial court,
The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly directly over the place where the accident happened later in the day. The accident was caused, as the
attributable to his negligence, and direct judgment to be entered in favor of the court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course
plaintiff for the resulting sum of 2,500 pesos, with costs of both instances, and ten anyone standing on the track at a particular place could see the ground and the entire construction of the
days hereafter let the case be remanded to the court below for proper action. 80 road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these
ordered. stringers, and the rails placed on the ties. The plaintiff himself must have seen that this 8 by 8 piece of
timber was out of place.

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


If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
WILLARD, J., with whom concurs CARSON, J., dissenting: plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own two feet and a half As has been said, Ellis testified that the reason why they did not put the 8 by 8 back
evidence. He testified, among other things, as follows: in its place was because that would have required the raising up of the track and digging out along this
"Q. Now, describe the best you can the character of the track that ran from the place where you loaded
upright piece and then putting it up again. accident occurred, it seems clear that that court in acquitting the railroad company of the complaint filed
by the widow did not violate the provisions of the aforesaid article of the Civil Code.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the exact
condition of the track and was informed and knew of the defect which caused -the accident. There was no "For the same reason, although the authority granted to the railroad company to open the grade crossing
promise on the part of McKenna to repair the track. without a special guard was nullified by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identieal, leaving one of the grounds upon
which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence of the
Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he injured party himself, unaffected."
knew that he would be injured by the falling of the rails from the car when they reached this point in the
track where the two stringers were left without any support at their ends. He either should have refused
to work at all or he should have placed himself behind the car, on the other side of it, or in front of it, It appears that the accident in this case took place at a grade crossing where, according to the claim of
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover. the plaintiff, it was the duty of the railroad company to maintain a guard. It did not do so, and the
plaintiff's deceased husband was injured by a train at this crossing, his negligence contributing to the
injury according to the ruling of the court below. This judgment, then, amounts to a holding that
It is said, however, that contributory negligence on the part of the plaintiff in a case like this is no contributory negligence is a defense according to the law of Spain. (See also judgment of the 21st of
defense under the law in force in these Islands. To this proposition I can not agree. The liability of the October, 1903, vol. 96, p. 400, Jurisprudencia Civil)
defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.

Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce there
In order to impose such liability upon the defendant, it must appear that its negligence caused the is found a distinct declaration upon it in reference to damages caused by collisions at sea. Article 827 of
accident. The reason why contributory negligence on the part of the plaintiff is a defense in this class of the Code of Commerce is as follows:
cases is that the negligence of the defendant did not alone cause the accident, If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case in
which contributory negligence is a defense it is made so because the negligence of the plaintiff is the "If both vessels may be blamed for the collision, each one shall be liable for his own damages, and both
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not shall be jointly responsible for the loss and damage suffered by their cargoes."
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.
That article is an express recognition of the fact that in collision cases contributory negligence is a
defense.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: "Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire." (Digest, book
50, tit. 17, rule 203.) I do not think that this court is justified in vu*\v of the Roman law, of the provisions of the I'ttrtMnH, of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absemr of any
declaration upon the subject in the Civil Code, in saying that it was the intention of the legislature of
The Partidas contain the following provisions: Spain to adopt for the Civil Code the rule announced in the majority opinion, a rule diametrically opposed
to that put in force by the Code of Commerce.

"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 3.) The chief, if not the only, reason stated in the opinion for adopting the rule that contributory negligence
is not a defense seems to be that such is the holding of the later French decisions.
"And they even said that when a man received an injury through his own negligence, he should blame
himself for it." (Rule 22, tit. 34, partida 7.) As to whether, if any liability existed in this case, it would be secondary in accordance with the provisions
of the Penal Code, or primary, in accordance with the provisions of the Civil Code, I express no opinion.

"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.) The judgment should, I think, be reversed and the defendant acquitted of the complaint.

In several cases in the supreme court of Spain the fact has been mentioned that the plaintiff was himself Judgment modified.
guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February, 1897,
and in the criminal judgments of the 20th of February 1888, the 9th of March, 1876, and the 6th of
October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of March,
1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court of
Spain said:

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

"For the reasons above stated, and the court below having found that the death of the deceased was due
to his own imprudence, and not therefore due -to the absence of a guard at the grade crossing where the
[Nos. L-10308 and L-10385-8. April 30, 1957] Dr. Bulaong from all liability, because he found that the claimants had received,
after the mishap, various amounts of money from the owner of the colliding bus,
MARIA PAZ S. ALBA, ETC., ET AL., petitioners, vs. DR. HoRACIO BULAONG, the Victory Liner Inc., each of them having executed a written release or waiver
ET AL., ETC., respondents. in favor of said Liner, the pertinent part of which reads as follows:

"And I likewise freely and completely cede and transfer into said Company (Victory Liner
1.
WORKMEN'S COMPENSATION LAW; INJURED EMPLOYEE MAY NOT
Inc.) any right given to me by law against any person or company that should be liable for
RECOVER TWICE FOR SAME INJURY.—The plain intent of Section 6 of the the said accident except my right to claim against Dr. Horacio Bulaong in accordance with
Workmen's Compensation Law is that an injured employee shall not receive and under the Workmen's Compensation Act (Rep. Act 772)."
payment twice for the same injury (from the third party and from the employer).
Claimants, the Commissioner declared, had elected to hold the Liner responsible
2.
ID.; ID.; INJURED EMPLOYEE ENTITLED TO FULL COMPENSATION.— for the accident, and could not thereafter turn around to recover compensation
Where the injured employee is offered, by the third party, compensation which he from their employer. He cited section 6 of the Workmen's Compensation Law,
deems insufficient, he may reject it and thereafter litigate with such party; or which for convenience is quoted:
choose instead to complain against his employer; or accept such insufficient
compensation but expressly reserving at the same time his right to recover
"SEC. 6. Liability of third parties.—In case an employee suffers an injury for which
additional damages from his employer. In the latter case the amount received compensation is due under this Act by any other person besides his employer, it shall be
from the third party shall be deducted from the amount payable by the employer. optional with such injured employee either to claim compensation from his employer, under
PETITION for review by certiorari of a decision of the Workmen's Compensation Commission.
Antonio C. Masaquel and Adaucto P. Ocampo for respondents. this Act, or sue such other person for damages, in accordance with law; and in case
BENGZON, J.: compensation is claimed and allowed in accordance with this Act, the employer who paid
such compensation or was found liable to pay the same, shall succeed the injured employee
to the right of recovering from such person what he paid: Provided, That in case the
This is a petition to reverse the decision of the Commissioner of the Workmen's employer recovers from such third person damages in excess of those paid or allowed under
Compensation Commission in five cases denying the claims for compensation, this Act, such excess shall be delivered to the injured employee or any other person entitled
against Dr. Horacio Bulaong, of herein petitioners, who were his employees and thereto, after deduction of the expenses of the employer and the costs of the proceedings.
dependents of his employees. The sum paid by the employer for compensation or the amount of compensation to which the
employee or his dependents are entitled under the provisions of this Act, shall not be
admissible as evidence in any damage suit or action." (As amended.)
On March 12, 1955, petitioners Gregorio de la Cruz, Pedro C. Bulaong and
Pacifico Bulaong were employees of Dr. Horacio Bulaong in his business of
threshing palay. Other employees were Engracio Alba (husband of petitioner Naturally the argument before this Court dwelt mostly on the interpretation of
Maria Paz S. Alba) and Vicente A. Sebastian (husband of petitioner Elisea S. the above section,and its application to the circumstances of record. There was no
Sebastian). Early in the morning of that day said five employees were, upon election, petitioners contend, to recover from the Liner to the exclusion of Dr.
specific orders of Dr. Bulaong, on their way to Barrio Baringan, Malolos, Bulacan, Bulaong, because the document itself signed by petitioners reserved their right to
to thresh palay, riding on a tractor which was pulling a threshing machine. claim against Dr. Horacio Bulaong under the Workmen's Compensation Act."
Suddenly a speeding bus of the Victory Liner Inc. collided with the thresher
which in turn hit the tractor, and as a result those on board were violently thrown Such reservation, counter the respondents, besides being void and against the
out. Engracio Alba and Vicente Sebastian died; Gregorio de la Cruz, Pedro C. law, cannot bind Dr. Bulaong who was not a party to the instrument.
Bulaong and Pacifico Bulaong sustained physical injuries.
There is no question that the Liner was a "third party" within the meaning of
WHEREFORE, five separate claims were filed before the Workmen's Compensation section 6. There is also no question that petitioner have not sued the Liner for
Commission against the employer Dr. Bulaong. Three defenses were set up by him: (a) damages. Wherefore they are not deemed to have made the election specified in
claimants were not his employees, but industrial partners, (b) the injuries were not
section 6. However, the plain intent of the law is that they shall not receive
sustained in the course of employment and (c) the claims, if any, had been extinguished by
virtue of the monetary settlements which petitioners had concluded with the Victory Liner payment twice for the same injuries (from the third party and from the employer).
Inc. Hence if without suing they receive f ull damages from the third party, they
should be deemed to have practically made the election under the law, and should
be prevented from thereafter suing the employer. Full damages means, of course
The referee overruled the defenses, having found the five men to be employees
what they would have demanded in a suit against the third party or what they
who had died or were injured in the course of employment. Consequently he
would receive in a compensation as complete settlement. Needless to say, where
required the employer to make compensation in the amounts specified in his
the injured employee is offered, by the third party, compensation which he deems
award. However on appeal, the Workmen's Compensation Commissioner absolved
insufficient, he may reject it and thereafter litigate with such third party. Or
choose instead to complain against his employer. employment, he must pay compensation to be fixed in accordance with law.
Bearing in mind, however, the law's intention not to give double compensation,
Nevertheless there is nothing in the law to prevent him from accepting such the amounts they have received from the Victory Liner shall be deducted from the
insufficient compensation but expressly reserving at the same time his right to sums so determined.
recover additional damages from his employer. If the third party agrees to the
reservation, such partial payment may legally be made and accepted. We say "if", In this connection we notice that the referee who has investigated the matter has
because the reservation necessarily entails some disadvantage to the third party, made some calculations of monetary award. However they were not passed upon
inasmuch as pursuant to legal principles when the employer subsequently pays, by the Commissioner.
he may in turn recover from the third party (See sec. 6). The employer can not
validly object to such reservation by the employee, because in effect the Wherefore, for the purpose of ascertaining and awarding such compensation
settlement helps to reduce the amount he will afterwards have to disgorge. to petitioners, the record will be remanded to the Workmen's Compensation
Commission for further action in accordance with this opinion. No costs. So
As we see it, the five employees' acceptance of the Victory Liner's offer of ordered.
compensation, under the circumstances disclosed by this record, especially the
written acknowledgments, showed they were not content with the amount Padilla, Reyes, A., Bautista Angelo, Labrador, Concepción, Endencia, and Felix,
received—they did not consider it sufficient—so they reserved their right to //., concur. Montemayor, J., concurs in the result.
require additional compen-sation from their employer. Hence their action against
Dr. Bulaong is not barred by section 6. He may in turn demand reimbursement
Case remanded to Workmen's Compensation Commission for further action.
from Victory Liner Inc.

The implied reservation of Dr. Bulaong's right against Victory Liner Inc. is not ——————————
unprecedented in the realm of jurisprudence. When a promissory note is
dishonored for non-payment, the holder may recover its value either from the © Copyright 2018 Central Book Supply, Inc. All rights reserved.
maker or from the indorser. If he sues the indorser and recovers, the latter may in
turn recoup from the maker. The statute expressly permits him to renounce his
right against the maker and reserve his right to recover from the indorser (Sec.
120 (e) Negotiable Instruments Law). When that happens, the courts say the
indorser's right to recover from the maker is also reserved. (Bootman's Sav. Bank
vs. Johnson, 24 Mo. App. 317; Tolentino Commercial Laws Vol. I (7th Ed.) p.
361.1)

In the situation resulting after the collision, we could regard the five employees,
the Victory Liner and Dr. Bulaong in the same juridical position, respectively, of
holder, maker and indorser. The release with express reservation produced the
implied reservation already stated.

What then, it may be asked, was the advantage accruing to the Liner from the
settlement it had worked to accomplish? For one thing its driver would not be
prosecuted by petitioners; besides earning such driver's gratitude, the Liner
thereby avoided losses in time and services. For another, even if afterwards it
should be liable to the employer for whatever the latter might have to satisfy, the
Liner could expect the settlement between employer and employees to be
reasonable considering their relationship, more reasonable perhaps than a
settlement between itself and the injured employees.

It is therefore our view that the moneys received from Victory Liner Inc. did not
necessarily have the effect of releasing Dr. Bulaong. Inasmuch as the five men
were his employees, and they were injured by reason of and in the course of their
G.R. No. 122039. May 31, 2000.* Same; Same; Same; Same; Presumption of Negligence; Upon the happening of the
accident, the presumption of negligence at once arises, and it becomes the duty of a
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE common carrier to prove that he observed extraordinary diligence in the care of his
SUNGA and FRANCISCO SALVA, respondents. passengers.—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 observed extraordinary diligence in the care of his passengers. Now,
Judgments; Res Judicata; The principle of res judicata does not apply where a
did the driver of jeepney carry Sunga “safely as far as human care and foresight
party in a pending case was never a party in a previous one.—The argument that could provide, using the utmost diligence of very cautious persons, with due
Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the regard for all the circumstances” as required by Art. 1755? We do not think so.
owner of the truck liable for quasi-delict ignores the fact that she was never a Several factors militate against petitioner’s contention.
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 Same; Same; Fortuitous Event; Words and Phrases; The taking of an “extension
quasi-delict for the damage caused to petitioner’s jeepney. On the other hand, the seat” is not an implied assumption of risk on the part of the passenger; A caso
issue in this case is whether petitioner is liable on his contract of carriage. The fortuito is an event which could not be foreseen, or which, though foreseen, was
first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has inevitable; Requisites.—We find it hard to give serious thought to petitioner’s
as its source the negligence of the tortfeasor. The second, breach of contract or contention that Sunga’s taking an “extension seat” amounted to an implied
culpa contractual, is premised upon the negligence in the performance of a assumption of risk. It is akin to arguing that the injuries to the many victims of
contractual obligation. 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
Common Carriers; Breach of Contract; Quasi-Delicts; Torts; In quasi-delict, the
was improperly parked constitutes caso fortuito. A caso fortuito is an event which
negligence or fault should be clearly established because it is the basis of the could not be foreseen, or which, though foreseen, was inevitable. This requires
action, whereas in breach of contract, the action can be prosecuted merely by that the following requirements be present: (a) the cause of the breach is
proving the existence of the contract and the fact that the obligor, in this case the independent of the debtor’s will; (b) the event is unforeseeable or unavoidable; (c)
common carrier, failed to transport his passenger safely to his destination.— the event is such as to render it impossible for the debtor to fulfill his obligation
Consequently, in quasi-delict, the negligence or fault should be clearly established
in a normal manner; and (d) the debtor did not take part in causing the injury to
because it is the basis of the action, whereas in breach of contract, the action can the creditor. Petitioner should have foreseen the danger of parking his jeepney
be prosecuted merely by proving the existence of the contract and the fact that the with its body protruding two meters into the highway.
obligor, in this case the common carrier, failed to transport his passenger safely to
his destination. 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 Same; Same; Damages; As a general rule, moral damages are not recoverable in
acted negligently unless they prove that they observed extraordinary diligence as actions for damages predicated on a breach of contract for it is not one of the items
defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to enumerated under Art. 2219 of the Civil Code.—As a general rule, moral damages
the common carrier the burden of proof. 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. As an
exception, such damages are recoverable: (1) in cases in which the mishap results
Same; Same; Same; Same; Doctrine of Proximate Cause; The doctrine of proximate
in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of
cause is applicable only in actions for quasi-delicts, not in actions involving breach the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad
of contract.—There is, thus, no basis for the contention that the ruling in Civil faith, as provided in Art. 2220.
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 Same; Bad Faith; The common carrier’s admission in open court that his driver
negligence of the truck driver. The doctrine of proximate cause is applicable only failed to assist the injured passenger in going to a nearby hospital cannot be
in actions for quasi-delict, not in actions involving breach of contract. The doctrine construed as an admission of bad faith.—In this case, there is no legal basis for
is a device for imputing liability to a person where there is no relation between awarding moral damages since there was no factual finding by the appellate court
him and another party. In such a case, the obligation is created by law itself. But, that petitioner acted in bad faith in the performance of the contract of carriage.
where there is a pre-existing contractual relation between the parties, it is the Sunga’s contention that petitioner’s admission in open court that the driver of the
parties themselves who create the obligation, and the function of the law is jeepney failed to assist her in going to a nearby hospital cannot be construed as
merely to regulate the relation thus created. 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. against Salva and adjudged Calalas liable for damages to Sunga. The dispositive
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
portion of its decision reads:
MENDOZA, J.:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and
another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, appellant:
dated March 31, 1991, reversing the contrary decision of the Regional Trial Court, (1)
P50,000.00 as actual and compensatory damages;
Branch 36, Dumaguete City, and awarding damages instead to private (2)
P50,000.00 as moral damages;
respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract (3)
P10,000.00 as attorney’s fees; and
of carriage. (4)
P1,000.00 as expenses of litigation; and
(5)
to pay the costs.
SO ORDERED.
The facts, as found by the Court of Appeals, are as follows:
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
At 10 o’clock in the morning of August 23, 1989, private respondent Eliza that the negligence of Verena was the proximate cause of the accident negates his
Jujeurche G. Sunga, then a college freshman majoring in Physical Education at liability and that to rule otherwise would be to make the common carrier an
the Siliman University, took a passenger jeepney owned and operated by insurer of the safety of its passengers. He contends that the bumping of the
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails
passengers, Sunga was given by the conductor an “extension seat,” a wooden stool the award of moral damages to Sunga on the ground that it is not supported by
at the back of the door at the rear end of the vehicle. evidence.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a The petition has no merit.
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
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding
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 the driver and the owner of the truck liable for quasi-delict ignores the fact that
left tibia-fibula with severe necrosis of the underlying skin.” Closed reduction of she was never a party to that case and, therefore, the principle of res judicata
the fracture, long leg circular casting, and case wedging were done under does not apply.
sedation. Her confinement in the hospital lasted from August 23 to September 7,
1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, Nor are the issues in Civil Case No. 3490 and in the present case the same. The
certified she would remain on a cast for a period of three months and would have issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable
to ambulate in crutches during said period. for quasidelict 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.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual,
violation of the contract of carriage by the former in failing to exercise the has as its source the negligence of the tortfeasor. The second, breach of contract or
diligence required of him as a common carrier. Calalas, on the other hand, filed a culpa contractual, is premised upon the negligence in the performance of a
third-party complaint against Francisco Salva, the owner of the Isuzu truck. contractual obligation.

The lower court rendered judgment against Salva as thirdparty defendant and Consequently, in quasi-delict, the negligence or fault should be clearly established
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who because it is the basis of the action, whereas in breach of contract, the action can
was responsible for the accident. It took cognizance of another case (Civil Case be prosecuted merely by proving the existence of the contract and the fact that the
No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which obligor, in this case the common carrier, failed to transport his passenger safely to
Branch 37 of the same court held Salva and his driver Verena jointly liable to his destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil
Calalas for the damage to his jeepney. 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
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the common carrier the burden of proof.
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 thirdparty complaint 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 highway.
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- Second, it is undisputed that petitioner’s driver took in more passengers than the
delict, not in actions involving breach of contract. The doctrine is a device for allowed seating capacity of the jeepney, a violation of §32(a) of the same law. It
imputing liability to a person where there is no relation between him and another provides:
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 Exceeding registered capacity.—No person operating any motor vehicle shall allow more
who create the obligation, and the function of the law is merely to regulate the passengers or more freight or cargo in his vehicle than its registered capacity.
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
The fact that Sunga was seated in an “extension seat” placed her in a peril
carriers with regard to the safety of passengers as well as the presumption of
greater than that to which the other passengers were exposed. Therefore, not only
negligence in cases of death or injury to passengers. It provides:
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
ART. 1733. Common carriers, from the nature of their business and for reasons of public negligent in transporting passengers.
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. 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
Such extraordinary diligence in the vigilance over the goods is further expressed to arguing that the injuries to the many victims of the tragedies in our seas
in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary should not be compensated merely because those passengers assumed a greater
diligence for the safety of the passengers is further set forth in articles 1755 and risk of drowning by boarding an overloaded ferry. This is also true of petitioner’s
1756. 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
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
requirements be present: (a) the cause of the breach is independent of the debtor’s
regard for all the circumstances. 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
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 Petitioner should have foreseen the danger of parking his jeepney with its body
extraordinary diligence as prescribed by articles 1733 and 1755. protruding two meters into the highway.

In the case at bar, upon the happening of the accident, the presumption of Finally, petitioner challenges the award of moral damages alleging that it is
negligence at once arose, and it became the duty of petitioner to prove that he excessive and without basis in law. We find this contention well taken.
observed extraordinary diligence in the care of his passengers.
In awarding moral damages, the Court of Appeals stated:
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 Plaintiff-appellant at the time of the accident was a first-year college student in that school
due regard for all the circumstances” as required by Art. 1755? We do not think year 1989-1990 at the Silliman University, majoring in Physical Education. Because of the
so. Several factors militate against petitioner’s contention. 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
First, as found by the Court of Appeals, the jeepney was not properly parked, its has a defect already.”
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 Plaintiff-appellant likewise testified that even while she was under confinement, she cried
violation of the R.A. No. 4136, as amended, or the Land Transportation and in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon
Traffic Code, which provides: 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 x x x has a
Sec. 54. Obstruction of Traffic.—No person shall drive his motor vehicle in such a manner as defect already.”
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
Those are her physical pains and moral sufferings, the inevitable bedfellows of negligence is the immediate and proximate cause of the collision. (Austria vs.
the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled Court of Appeals, 327 SCRA 668 [2000])
to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable. ——o0o——

As a general rule, moral damages are not recoverable in actions for damages © Copyright 2018 Central Book Supply, Inc. All rights reserved.
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.

Bellosillo (Chairman) and Buena, JJ., concur.

Judgment affirmed with modification.

Notes.—The rules on extraordinary responsibility of common carriers remain


basically unchanged even when the contract is breached by tort although
noncontradictory principles on quasi-delict may then be assimilated as also
forming part of the governing law. (Sabena Belgian World Airlines vs. Court of
Appeals, 255 SCRA 38 [1996])

Proximate cause, which is determined by a mixed consideration of logic,


common sense, policy and precedent, is 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. (Bank of the
Philippine Islands vs. Court of Appeals, 641 SCRA 326 [2000])

While the driver of an improperly parked vehicle may be liable in case of


collision, the driver of a moving vehicle who had no opportunity to avoid the
collision due to his own making is not relieved of liability, such as when his
G.R. No. 121413. January 29, 2001.* transactions attributable to an organized syndicate, in our view, their actions
were not the proximate cause of encashing the checks payable to the CIR. The
PHILIPPINE COMMERCIAL INTERNATIONAL BANK (formerly INSULAR BANK OF degree of Ford’s negligence, if any, could not be characterized as the proximate
ASIA AND AMERICA), petitioner, vs. COURT OF APPEALS and FORD PHILIPPINES, cause of the injury to the parties. The Board of Directors of Ford, we note, did not
INC. and CITIBANK, N.A., respondents. confirm the request of Godofredo Rivera to recall Citibank Check No. SN-04867.
Rivera’s instruction to replace the said check with PCIBank’s Manager’s Check
G.R. No. 121479. January 29, 2001.* was not in the ordinary course of business which could have prompted PCIBank
to validate the same. As to the preparation of Citibank Checks Nos. SN-10597
FORD PHILIPPINES, INC., petitioner, vs. COURT OF APPEALS and CITIBANK, N.A. and and 16508, it was established that these checks were made payable to the CIR.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK, respondents. Both were crossed checks. These checks were apparently turned around by Ford’s
employees, who were acting on their own personal capacity. Given these
G.R. No. 128604. January 29, 2001.* circumstances, the mere fact that the forgery was committed by a drawer-payor’s
confidential employee or agent, who by virtue of his position had unusual
facilities for perpetrating the fraud and imposing the forged paper upon the bank,
FORD PHILIPPINES, INC., petitioner, vs. CITIBANK, N.A., PHILIPPINE COMMERCIAL
INTERNATIONAL BANK and THE COURT OF APPEALS, respondents.
does not entitle the bank to shift the loss to the drawer-payor, in the absence of
some circumstance raising estoppel against the drawer. This rule likewise applies
to the checks fraudulently negotiated or diverted by the confidential employees
Negligence; Torts; Quasi-Delicts; The general rule is that if the master is injured who hold them in their possession.
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
Same; Checks; Collecting Banks; Taxation; A bank authorized to collect the payment of
will defeat the superior’s action against the third person, assuming, of course that
taxpayers in behalf of the Bureau of Internal Revenue is duty bound to consult its principal
the contributory negligence was the proximate cause of the injury of which regarding the unwarranted instructions given by the pay or of its agent.—Citibank Check
complaint is made.—On this point, jurisprudence regarding the imputed No. SN-04867 was deposited at PCIBank through its Ermita Branch. It was coursed
negligence of employer in a master-servant relationship is instructive. Since a through the ordinary banking transaction, sent to Central Clearing with the indorsement at
master may be held for his servant’s wrongful act, the law imputes to the master the back “all prior indorsements and/or lack of indorsements guaranteed,” and was
the act of the servant, and if that act is negligent or wrongful and proximately presented to Citibank for payment. Thereafter PCIBank, instead of remitting the proceeds
results in injury to a third person, the negligence or wrongful conduct is the to the CIR, prepared two of its Manager's checks and enabled the syndicate to encash the
negligence or wrongful conduct of the master, for which he is liable. The general same. On record, PCIBank failed to verify the authority of Mr. Rivera to negotiate the
checks. The neglect of PCIBank employees to verify whether his letter requesting for the
rule is that if the master is injured by the negligence of a third person and by the
replacement of the Citibank Check No. SN-04867 was duly authorized, showed lack of care
concurring contributory negligence of his own servant or agent, the latter’s and prudence required in the circumstances. Furthermore, it was admitted that PCIBank is
negligence is imputed to his superior and will defeat the superior’s action against authorized to collect the payment of taxpayers in behalf of the BIR. As an agent of BIR,
the third person, assuming, of course that the contributory negligence was the PCIBank is duty bound to consult its principal regarding the unwarranted instructions
proximate cause of the injury of which complaint is made. given by the payor or its agent.

Same; Same; Same; Words and Phrases; Proximate cause is that which, in the Same; Same; Same; Negotiable Instruments; It is a well-settled rule that the relationship
natural and continuous sequence, unbroken by any efficient, intervening cause, between the payee or holder of commercial paper and the bank to which it is sent for
produces the injury, and without which the result would not have occurred.— collection is, in the absence of an agreement to the contrary, that of principal and agent.—It
is a well-settled rule that the relationship between the payee or holder of commercial paper
Accordingly, we need to determine whether or not the action of Godofredo Rivera,
and the bank to which it is sent for collection is, in the absence of an agreement to the
Ford’s General Ledger Accountant, and/or Alexis Marindo, his assistant, was the contrary, that of principal and agent. A bank which receives such paper for collection is the
proximate cause of the loss or damage. As defined, proximate cause is that which, agent of the payee or holder.
in the natural and continuous sequence, unbroken by any efficient, intervening
cause produces the injury, and without which the result would not have occurred.
Same; Same; Same; Even considering arguendo, that the diversion of the amount
of a check payable to the collecting bank in behalf of the designated payee may be
Banks and Banking; Negotiable Instruments; Checks; The mere fact that the allowed, still such diversion must be properly authorized by the payor.—Even
forgery was committed by a drawer-payor’s confidential employee or agent, who by considering arguendo, that the diversion of the amount of a check payable to the
virtue of his position had unusual facilities for perpetrating the fraud and collecting bank in behalf of the designated payee may be allowed, still such
imposing the forged paper upon the bank, does not entitle the bank to shift the loss diversion must be properly authorized by the payor. Otherwise stated, the
to the drawer-payor, in the absence of some circumstances raising estoppel against diversion can be justified only by proof of authority from the drawer, or that the
the drawer.—It appears that although the employees of Ford initiated the drawer has clothed his agent with apparent authority to receive the proceeds of
such check. as worthy of confidence will not be permit- ted to profit by the frauds these
officers or agents were enabled to perpetrate in the apparent course of their
Same; Same; Same; Crossed Checks; Words and Phrases; The crossing of the check with the employment; nor will it be permitted to shirk its responsibility for such frauds,
phrase “Payee’s Account Only,” is a warning that the check should be deposited only in the even though no benefit may accrue to the bank therefrom. For the general rule is
account of the payee; It is the collecting bank which is bound to scrutinize the check and to that a bank is liable for the fraudulent acts or representations of an officer or
know its depositors before it could make the clearing indorsement “all prior indorsements agent acting within the course and apparent scope of his employment or
and lor lack ofindorsement guaranteed.”—Indeed, the crossing of the check with the phrase authority. And if an officer or employee of a bank, in his official capacity, receives
“Payee’s Account Only,” is a warning that the check should be deposited only in the account money to satisfy an evidence of indebtedness lodged with his bank for collection,
of the CIR. Thus, it is the duty of the collecting bank PCIBank to ascertain that the check be
the bank is liable for his misappropriation of such sum.
deposited in payee’s account only. Therefore, it is the collecting bank (PCIBank) which is
bound to scrutinize the check and to know its depositors before it could make the clearing
indorsement “all prior indorsements and/or lack of indorsement guaranteed.” Same; Same; Same; Negligence; As a business affected with public interest and
because of the nature of its functions, a bank is under obligation to treat the
Same; Same; Same; A bank which cashes a check drawn upon another bank, without accounts of its depositors with meticulous care, always having in mind the
requiring proof as to the identity of persons presenting it, or making inquiries with regard to fiduciary nature of their relationship.—Citibank should have scrutinized Citibank
them, cannot hold the proceeds against the drawee when the proceeds of the checks were Check Numbers SN-10597 and 16508 before paying the amount of the proceeds
afterwards diverted to the hands of a third party.—Banking business requires that the one thereof to the collecting bank of the BIR. One thing is clear from the record: the
who first cashes and negotiates the check must take some precautions to learn whether or clearing stamps at the back of Citibank Check Nos. SN-10597 and 16508 do not
not it is genuine. And if the one cashing the check through indifference or other
bear any initials. Citibank failed to notice and verify the absence of the clearing
circumstance assists the forger in committing the fraud, he should not be permitted to
retain the proceeds of the check from the drawee whose sole fault was that it did not stamps. Had this been duly examined, the switching of the worthless checks to
discover the forgery or the defect in the title of the person negotiating the instrument before Citibank Check Nos. 10597 and 16508 would have been discovered in time. For
paying the check. For this reason, a bank which cashes a check drawn upon another bank, this reason, Citibank had indeed failed to perform what was incumbent upon it,
without requiring proof as to the identity of persons presenting it, or making inquiries with which is to ensure that the amount of the checks should be paid only to its
regard to them, cannot hold the proceeds against the drawee when the proceeds of the designated payee. The fact that the drawee bank did not discover the irregularity
checks were afterwards diverted to the hands of a third party. In such cases the drawee seasonably, in our view, constitutes negligence in carrying out the bank’s duty to
bank has a right to believe that the cashing bank (or the collecting bank) had, by the usual its depositors. The point is that as a business affected with public interest and
proper investigation, satisfied itself of the authenticity of the negotiation of the checks.
because of the nature of its functions, the bank is under obligation to treat the
Thus, one who encashed a check which had been forged or diverted and in turn received
payment thereon from the drawee, is guilty of negligence which proximately contributed to accounts of its depositors with meticulous care, always having in mind the
the success of the fraud practiced on the drawee bank. The latter may recover from the fiduciary nature of their relationship.
holder the money paid on the check.
Same; Same; Same; Same; Doctrine of Comparative Negligence; Where both the
Same; Same; Torts; As a general rule, a banking corporation is liable for the collecting and drawee banks failed in their respective obligations and both were
wrongful or tortuous acts and declarations of its officers or agents within the negligent in the selection and supervision of their employees, both are equally
course and scope of their employment—it may be liable for the tortuous acts of its liable for the loss of the proceeds of checks fraudulently encashed.—Thus, invoking
officers even as regards that species of tort of which malice is an essential the doctrine of comparative negligence, we are of the view that both PCIBank and
element.—In this case, there was no evidence presented confirming the conscious Citibank failed in their respective obligations and both were negligent in the
participation of PCIBank in the embezzlement. As a general rule, however, a selection and supervision of their employees resulting in the encashment of
banking corporation is liable for the wrongful or tortuous acts and declarations of Citibank Check Nos. SN-10597 and 16508. Thus, we are constrained to hold them
its officers or agents within the course and scope of their employment. A bank will equally liable for the loss of the proceeds of said checks issued by Ford in favor of
be held liable for the negligence of its officers or agents when acting within the the CIR.
course and scope of their employment. It may be liable for the tortuous acts of its
officers even as regards that species of tort of which malice is an essential Same; Same; Same; Same; The banking business is so impressed with public
element. In this case, we find a situation where the PCIBank appears also to be interest where the trust and confidence of the public in general is of paramount
the victim of the scheme hatched by a syndicate in which its own management importance such that the appropriate standard of diligence must be very high, if
employees had participated. not the highest, degree of diligence.—Time and again, we have stressed that
banking business is so impressed with public interest where the trust and
Same; Same; Same; The general rule is that a bank is liable for the fraudulent acts confidence of the public in general is of paramount importance such that the
or representations of an officer or agent acting within the course and apparent appropriate standard of diligence must be very high, if not the highest, degree of
scope of his employment or authority.—A bank holding out its officers and agents diligence. A bank’s liability as obligor is not merely vicarious but primary,
wherein the defense of exercise of due diligence in the selection and supervision of
its employees is of no moment. These consolidated petitions involve several fraudulently negotiated checks.

Same; Same; Same; Same; Banks are expected to exercise the highest degree of The original actions a quo were instituted by Ford Philippines to recover from the drawee
diligence in the selection and supervision of their employees.—Banks handle daily bank, CITIBANK, N.A. (Citibank) and collecting bank, Philippine Commercial International
transactions involving millions of pesos. By the very nature of their work the Bank (PCI-Bank) [formerly Insular Bank of Asia and America], the value of several checks
payable to the Commissioner of Internal Revenue, which were embezzled allegedly by an
degree of responsibility, care and trustworthiness expected of their employees and
organized syndicate.
officials is far greater than those of ordinary clerks and employees. Banks are
expected to exercise the highest degree of diligence in the selection and
supervision of their employees. G.R. Nos. 121413 and 121479 are twin petitions for review of the March 27, 1995 Decision 1
of the Court of Appeals in CA-G.R. CV No. 25017, entitled “Ford Philippines, Inc. vs.
Citibank, N.A. and Insular Bank of Asia and America (now Philippine Commercial
Same; Same; Same; Prescription; The statute of limitations begins to run when the International Bank), and the August 8, 1995 Resolution, 2 ordering the collecting bank,
bank gives the depositor notice of the payment, and an action upon a check is Philippine Commercial International Bank, to pay the amount of Citibank Check No. SN-
ordinarily governed by the statutory period applicable to instruments in writing; 04867.
An action upon a written contract must be brought within ten years from the time
the right of action accrues.—The statute of limitations begins to run when the In G.R. No. 128604, petitioner Ford Philippines assails the October 15, 1996 Decision 3 of the
bank gives the depositor notice of the payment, which is ordinarily when the Court of Appeals and its March 5, 1997 Resolution4 in CA-G.R. No. 28430 entitled “Ford
check is returned to the alleged drawer as a voucher with a statement of his Philippines, Inc. vs. Citibank, N.A. and Philippine Commercial International Bank,”
account, and an action upon a check is ordinarily governed by the statutory period affirming in toto the judgment of the trial court holding the defendant drawee bank,
Citibank, N.A., solely liable to pay the amount of P12,163,298.10 as damages for the
applicable to instruments in writing. Our laws on the matter provide that the
misapplied proceeds of the plaintiff’s Citibank Check Numbers SN-10597 and 16508.
action upon a written contract must be brought within ten years from the time
the right of action accrues. Hence, the reckoning time for the prescriptive period
begins when the instrument was issued and the corresponding check was I. G.R. Nos. 121413 and 121479
returned by the bank to its depositor (normally a month thereafter). Applying the
same rule, the cause of action for the recovery of the proceeds of Citibank Check The stipulated facts submitted by the parties as accepted by the Court of Appeals
No. SN-04867 would normally be a month after December 19, 1977, when are as follows:
Citibank paid the face value of the check in the amount of P4,746,114.41. Since
the original complaint for the cause of action was filed on January 20, 1983, “On October 19, 1977, the plaintiff Ford drew and issued its Citibank Check No. SN-04867
barely six years had lapsed. Thus, we conclude that Ford’s cause of action to in the amount of P4,746,114.41, in favor of the Commissioner of Internal Revenue as
recover the amount of Citibank Check No. SN-04867 was seasonably filed within payment of plaintiff’s percentage or manufacturer’s sales taxes for the third quarter of 1977.
the period provided by law.
The aforesaid check was deposited with the defendant IBAA (now PCIBank) and was
Same; Same; Same; Negligence; Failure on the part of the depositor to examine its subsequently cleared at the Central Bank. Upon presentment with the defendant Citibank,
passbook, statements of account, and cancelled checks and to give notice within a the proceeds of the check was paid to IBAA as collecting or depository bank.
reasonable time (or as required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to mitigate the banks’ The proceeds of the same Citibank check of the plaintiff was never paid to or received by the
liability by reducing the award of interest from twelve percent (12%) to six percent payee thereof, the Commissioner of Internal Revenue.
(6%) per annum.—We also find that Ford is not completely blameless in its failure
to detect the fraud. Failure on the part of the depositor to examine its passbook, As a consequence, upon demand of the Bureau and/or Commissioner of Internal Revenue,
statements of account, and cancelled checks and to give notice within a the plaintiff was compelled to make a second payment to the Bureau of Internal Revenue of
reasonable time (or as required by statute) of any discrepancy which it may in the its percentage/manufacturers’ sales taxes for the third quarter of 1977 and that said second
payment of plaintiff in the amount of P4,746,114.41 was duly received by the Bureau of
exercise of due care and diligence find therein, serves to mitigate the banks’
Internal Revenue.
liability by reducing the award of interest from twelve percent (12%) to six
percent (6%) per annum. As provided in Article 1172 of the Civil Code of the
It is further admitted by defendant Citibank that during the time of the transactions in
Philippines, responsibility arising from negligence in the performance of every
question, plaintiff had been maintaining a checking account with defendant Citibank; that
kind of obligation is also demandable, but such liability may be regulated by the Citibank Check No. SN-04867 which was drawn and issued by the plaintiff in favor of the
courts, according to the circumstances. In quasi-delicts, the contributory Commissioner of Internal Revenue was a crossed check in that, on its face were two parallel
negligence of the plaintiff shall reduce the damages that he may recover. lines and written in between said lines was the phrase “Payee’s Account Only”; and that
PETITIONS for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
defendant Citibank paid the full face value of the check in the amount of P4,746,114.41 to
QUISUMBING, J.: the defendant IBAA.
It has been duly established that for the payment of plaintiff’s percentage tax for the last Rivera, the General Ledger Accountant of Ford. He purportedly needed to hold back the
quarter of 1977, the Bureau of Internal Revenue issued Revenue Tax Receipt No. 18747002, check because there was an error in the computation of the tax due to the Bureau of
dated October 20, 1977, designating therein in Muntinlupa, Metro Manila, as the Internal Revenue (BIR). With Rivera’s instruction, PCIBank replaced the check with two of
authorized agent bank of Metrobank, Alabang Branch to receive the tax payment of the its own Manager’s Checks (MCs). Alleged members of a syndicate later deposited the two
plaintiff. MCs with the Pacific Banking Corporation.

On December 19, 1977, plaintiff’s Citibank Check No. SN-04867, together with the Revenue Ford, with leave of court, filed a third-party complaint before the trial court impleading
Tax Receipt No. 18747002, was deposited with defendant IBAA, through its Ermita Branch. Pacific Banking Corporation (PBC) and Godofredo Rivera, as third party defendants. But
The latter accepted the check and sent it to the Central Clearing House for clearing on the the court dismissed the complaint against PBC for lack of cause of action. The court likewise
same day, with the indorsement at the back “all prior indorsements and/or lack of dismissed the third-party complaint against Godofredo Rivera because he could not be
indorsements guaranteed.” Thereafter, defendant IBAA presented the check for payment to served with summons as the NBI declared him as a “fugitive from justice.”
defendant Citibank on same date, December 19, 1977, and the latter paid the face value of
the check in the amount of P4,746,114.41. Consequently, the amount of P4,746,114.41 was
debited in plaintiff’s account with the defendant Citibank and the check was returned to the
On June 15, 1989, the trial court rendered its decision, as follows:
plaintiff.
“Premises considered, judgment is hereby rendered as follows:
Upon verification, plaintiff discovered that its Citibank Check No. SN-04867 in the amount
of P4,746,114.41 was not paid to the Commissioner of Internal Revenue. Hence, in separate 1.
Ordering the defendants Citibank and IBAA (now PCI Bank), jointly and severally, to
letters dated October 26, 1979, addressed to the defendants, the plaintiff notified the latter pay the plaintiff the amount of P4,746,114.41 representing the face value of plaintiff’s
that in case it will be re-assessed by the BIR for the payment of the taxes covered by the Citibank Check No. SN-04867, with interest thereon at the legal rate starting January 20,
said checks, then plaintiff shall hold the defendants liable for reimbursement of the face 1983, the date when the original complaint was filed until the amount is fully paid, plus
value of the same. Both defendants denied liability and refused to pay. costs;

In a letter dated February 28, 1980 by the Acting Commissioner of Internal Revenue 2.
On defendant Citibank’s cross-claim: ordering the cross-defendant IBAA (now PCI
addressed to the plaintiff—supposed to be Exhibit “D,” the latter was officially informed, BANK) to reimburse defendant Citibank for whatever amount the latter has paid or may
among others, that its check in the amount of P4,746,114.41 was not paid to the government pay to the plaintiff in accordance with the next preceding paragraph;
or its authorized agent and instead encashed by unauthorized persons, hence, plaintiff has
to pay the said amount within fifteen days from receipt of the letter. Upon advice of the
3.
The counterclaims asserted by the defendants against the plaintiff, as well as that
plaintiff’s lawyers, plaintiff on March 11, 1982, paid to the Bureau of Internal Revenue, the
asserted by the cross-defendant against the cross-claimant are dismissed, for lack of merits;
amount of P4,746,114.41, representing payment of plaintiff’s percentage tax for the third
and
quarter of 1977.

4.
With costs against the defendants.


As a consequence of defendant’s refusal to reimburse plaintiff of the payment it had made
for the second time to the BIR of its percentage taxes, plaintiff filed on January 20, 1983 its
original complaint before this Court. SO ORDERED.”6

On December 24, 1985, defendant IBAA was merged with the Philippine Commercial Not satisfied with the said decision, both defendants, Citibank and PCIBank, elevated their
International Bank (PCIBank) with the latter as the surviving entity. respective petitions for review on certiorari to the Court of Appeals. On March 27, 1995, the
appellate court issued its judgment as follows:
Defendant Citibank maintains that; the payment it made of plaintiffs Citibank Check No.
SN-04867 in the amount of P4,746,114.41 “was in due course”; it merely relied on the “WHEREFORE, in view of the foregoing, the court AFFIRMS the appealed decision with
clearing stamp of the depository/collecting bank, the defendant IBAA that “all prior modifications.
indorsements and/or lack of indorsements guaranteed”; and the proximate cause of
plaintiff’s injury is the gross negligence of defendant IBAA in indorsing the plaintiff’s
The court hereby renders judgment:
Citibank check in question.

1.
Dismissing the complaint in Civil Case No. 49287 insofar as defendant Citibank N.A. is
It is admitted that on December 19, 1977 when the proceeds of plaintiff’s Citibank Check
concerned;
No. SN-04867 was paid to defendant IBAA as collecting bank, plaintiff was maintaining a
checking account with defendant Citibank.”5
2.
Ordering the defendant IBAA now PCI Bank to pay the plaintiff the amount of
P4,746,114.41 representing the face value of plaintiff’s Citibank Check No. SN-04867, with
Although it was not among the stipulated facts, an investigation by the National Bureau of
interest thereon at the legal rate starting January 20, 1983, the date when the original
Investigation (NBI) revealed that Citibank Check No. SN-04867 was recalled by Godofredo
complaint was filed until the amount is fully paid; 3.
Respondent Citibank raises an issue for the first time on appeal; thus the same should
not be considered by the Honorable Court.
3.
Dismissing the counterclaims asserted by the defendants against the plaintiff as well as
that asserted by the cross-defendant against the cross-claimant, for lack of merits. 4.
As correctly held by the trial court, there is no evidence of gross negligence on the part of
petitioner Ford.9
Costs against the defendant IBAA (now PCI Bank).
II.
PCIBank is liable to petitioner Ford considering that:
IT IS SO ORDERED.”7
1.
There were no instructions from petitioner Ford to deliver the proceeds of the subject
check to a person other than the payee named therein, the Commissioner of the Bureau of
PCIBank moved to reconsider the above-quoted decision of the Court of Appeals,
Internal Revenue; thus, PCIBank’s only obligation is to deliver the proceeds to the
while Ford filed a “Motion for Partial Reconsideration.” Both motions were denied Commissioner of the Bureau of Internal Revenue.10
for lack of merit.
2.
PCIBank which affixed its indorsement on the subject check (“All prior indorsement
Separately, PCIBank and Ford filed before this Court, petitions for review by and/or lack of indorsement guaranteed”), is liable as collecting bank.11
certiorari under Rule 45.
3.
PCIBank is barred from raising issues of fact in the instant proceedings. 12
In G.R. No. 121413, PCIBank seeks the reversal of the decision and resolution of
the Twelfth Division of the Court of Appeals contending that it merely acted on 4.
Petitioner Ford’s cause of action had not prescribed.13
the instruction of Ford and such cause of action had already prescribed.
II. G.R. No. 128604
PCIBank sets forth the following issues for consideration:
The same syndicate apparently embezzled the proceeds of checks intended, this
I.
Did the respondent court err when, after finding that the petitioner acted on time, to settle Ford’s percentage taxes appertaining to the second quarter of 1978
the check drawn by respondent Ford on the said respondent’s instructions, it and the first quarter of 1979.
nevertheless found the petitioner liable to the said respondent for the full amount
of the said check.
The facts as narrated by the Court of Appeals are as follows:

II.
Did the respondent court err when it did not find prescription in favor of the
Ford drew Citibank Check No. SN-10597 on July 19, 1978 in the amount of P5,851,706.37
petitioner.8 representing the percentage tax due for the second quarter of 1978 payable to the
Commissioner of Internal Revenue. A BIR Revenue Tax Receipt No. 28645385 was issued
In a counter move, Ford filed its petition docketed as G.R. No. 121479, for the said purpose.
questioning the same decision and resolution of the Court of Appeals, and praying
for the reinstatement in toto of the decision of the trial court which found both On April 20, 1979, Ford drew another Citibank Check No. SN-16508 in the amount of
PCIBank and Citibank jointly and severally liable for the loss. P6,311,591.73, representing the payment of percentage tax for the first quarter of 1979 arid
payable to the Commissioner of Internal Revenue. Again a BIR Revenue Tax Receipt No. A-
1697160 was issued for the said purpose.
In G.R. No. 121479, appellant Ford presents the following propositions for
consideration:
Both checks were “crossed checks” and contain two diagonal lines on its upper left corner
between which were written the words “payable to the payee’s account only.”
I.
Respondent Citibank is liable to petitioner Ford considering that:
The checks never reached the payee, CIR. Thus, in a letter dated February 28, 1980, the
1.
As drawee bank, respondent Citibank owes to petitioner Ford, as the drawer of the BIR, Region 4-B, demanded for the said tax payments the corresponding periods above-
subject check and a depositor of respondent Citibank, an absolute and contractual duty to mentioned.
pay the proceeds of the subject check only to the payee thereof, the Commissioner of
Internal Revenue.
As far as the BIR is concerned, the said two BIR Revenue Tax Receipts were considered
“fake and spurious.” This anomaly was confirmed by the NBI upon the initiative of the BIR.
2.
Respondent Citibank failed to observe its duty as banker with respect to the subject The findings forced Ford to pay the BIR anew, while an action was filed against Citibank
check, which was crossed and payable to “Payee’s Account Only.” and PCIBank for the recovery of the amount of Citibank Check Numbers SN-10597 and
16508. “WHEREFORE, judgment is hereby rendered sentencing defendant CITIBANK to
reimburse plaintiff FORD the total amount of P12,163,298.10 prayed for in its complaint,
with 6% interest thereon from date of first written demand until full payment, plus
The Regional Trial Court of Makati, Branch 57, which tried the case, made its P300,000.00 attorney’s fees and expenses of litigation, and to pay the defendant, PCIB (on
findings on the modus operandi of the syndicate, as follows: its counterclaim to crossclaim) the sum of P300,000.00 as attorney’s fees and costs of
litigation, and pay the costs.
“A certain Mr. Godofredo Rivera was employed by the plaintiff FORD as its General Ledger
Accountant. As such, he prepared the plaintiffs check marked Exh. ‘A’ [Citibank Check No. SO ORDERED.”15
SN-10597] for payment to the BIR. Instead, however, of delivering the same to the payee, he
passed on the check to a co-conspirator named Remberto Castro who was a promanager of
the San Andres Branch of PCIB.** In connivance with one Winston Dulay, Castro himself Both Ford and Citibank appealed to the Court of Appeals which affirmed, in toto,
subsequently opened a Checking Account in the name of a fictitious person denominated as the decision of the trial court. Hence, this petition.
‘Reynaldo Reyes’ in the Meralco Branch of PCIBank where Dulay works as Assistant
Manager.
Petitioner Ford prays that judgment be rendered setting aside the portion of the
Court of Appeals decision and its resolution dated March 5, 1997, with respect to
After an initial deposit of P100.00 to validate the account, Castro deposited a worthless the dismissal of the complaint against PCIBank and holding Citibank solely
Bank of America Check in exactly the same amount as the first FORD check (Exh. “A,”
responsible for the proceeds of Citibank Check Numbers SN-10597 and 16508 fot
P5,851,706.37) while this worthless check was coursed through PCIB’s main office enroute
to the Central Bank for clearing, replaced this worthless check with FORD’s Exhibit ‘A’ and P5,851,706.73 and P6,311,591.73 respectively.
accordingly tampered the accompanying documents to cover the replacement. As a result,
Exhibit ‘A’ was cleared by defendant CITIBANK, and the fictitious deposit account of Ford avers that the Court of Appeals erred in dismissing the complaint against
‘Reynaldo Reyes’ was credited at the PCIB Meralco Branch with the total amount of the defendant PCIBank considering that:
FORD check Exhibit ‘A.’ The same method was again utilized by the syndicate in profiting
from Exh. ‘B’ [Citibank Check No. SN-16508] which was subsequently pilfered by Alexis
Marindo, Rivera’s Assistant at FORD. I.
Defendant PCIBank was clearly negligent when it failed to exercise the diligence
required to be exercised by it as a banking institution.
From this ‘Reynaldo Reyes’ account, Castro drew various checks distributing the shares of
the other participating conspirators namely (1) CRISANTO BERNABE, the mastermind II.
Defendant PCIBank clearly failed to observe the diligence re- quired in the selection and
who formulated the method for the embezzlement; (2) RODOLFO R. DE LEON a customs supervision of its officers and employees.
broker who negotiated the initial contact between Bernabe, FORD’s Godofredo Rivera and
PCIB’s Remberto Castro; (3) JUAN CASTILLO who assisted de Leon in the initial III.
Defendant PCIBank was, due to its negligence, clearly liable for the loss or damage
arrangements; (4) GODOFREDO RIVERA, FORD’s accountant who passed on the first resulting to the plaintiff Ford as a consequence of the substitution of the check consistent
check (Exhibit “A”) to Castro; (5) REMBERTO CASTRO, PCIB’s pro-manager at San Andres with Section 5 of Central Bank Circular No. 580 series of 1977.
who performed the switching of checks in the clearing process and opened the fictitious
Reynaldo Reyes account at the PCIB Meralco Branch; (6) WINSTON DULAY, PCIB’s
Assistant Manager at its Meralco Branch, who assisted Castro in switching the checks in IV.
Assuming arguendo that defendant PCIBank did not accept, endorse or negotiate in
the clearing process and facilitated the opening of the fictitious Reynaldo Reyes’ bank due course the subject checks, it is liable, under Article 2154 of the Civil Code, to return the
account; (7) ALEXIS MARINDO, Rivera’s Assistant at FORD, who gave the second check money which it admits having received, and which was credited to it in its Central Bank
(Exh. “B”) to Castro; (8) ELEUTERIO JIMENEZ, BIR Collection Agent who provided the account.16
fake and spurious revenue tax receipts to make it appear that the BIR had received FORD’s
tax payments. The main issue presented for our consideration by these petitions could be
simplified as follows: Has petitioner Ford the right to recover from the collecting
Several other persons and entities were utilized by the syndicate as conduits in the bank (PCIBank) and the drawee bank (Citibank) the value of the checks intended
disbursements of the proceeds of the two checks, but like the aforementioned participants in as payment to the Commissioner of Internal Revenue? Or has Ford’s cause of
the conspiracy, have not been impleaded in the present case. The manner by which the said action already prescribed?
funds were distributed among them are traceable from the record of checks drawn against
the original “Reynaldo Reyes” account and indubitably identify the parties who illegally
benefited therefrom and readily indicate in what amounts they did so.”14 Note that in these cases, the checks were drawn against the drawee bank, but the
title of the person negotiating the same was allegedly defective because the
On December 9, 1988, Regional Trial Court of Makati, Branch 57, held drawee- instrument was obtained by fraud and unlawful means, and the proceeds of the
bank, Citibank, liable for the value of the two checks while absolving PCIBank checks were not remitted to the payee. It was established that instead of paying
from any liability, disposing as follows: the checks to the CIR, for the settlement of the appropriate quarterly percentage
taxes of Ford, the checks were diverted and encashed for the eventual distribution
among the members of the syndicate. As to the unlawful negotiation of the check whom must suffer the consequences of a breach of trust, the one who made it
the applicable law is Section 55 of the Negotiable Instruments Law (NIL), which possible, by his act of negligence, must bear the loss.
provides:
For its part, Ford denies any negligence in the performance of its duties. It avers
“When title defective—The title of a person who negotiates an instrument is that there was no evidence presented before the trial court showing lack of
defective within the meaning of this Act when he obtained the instrument, or any diligence on the part of Ford. And, citing the case of Gempesaw vs. Court of
signature thereto, by fraud, duress, or force and fear, or other unlawful means, or Appeals,17 Ford argues that even if there was a finding therein that the drawer
for an illegal consideration, or when he negotiates it in breach of faith or under was negligent, the drawee bank was still ordered to pay damages.
such circumstances as amount to a fraud.”
Furthermore, Ford contends that Godofredo Rivera was not authorized to make
Pursuant to this provision, it is vital to show that the negotiation is made by the any representation in its behalf, specifically, to divert the proceeds of the checks.
perpetrator in breach of faith amounting to fraud. The person negotiating the It adds that Citibank raised the issue of imputed negligence against Ford for the
checks must have gone beyond the authority given by his principal. If the first time on appeal. Thus, it should not be considered by this Court.
principal could prove that there was no negligence in the performance of his
duties, he may set up the personal defense to escape liability and recover from On this point, jurisprudence regarding the imputed negligence of employer in a
other parties who, through their own negligence, allowed the commission of the master-servant relationship is instructive. Since a master may be held for his
crime. servant’s wrongful act, the law imputes to the master the act of the servant, and
if that act is negligent or wrongful and proximately results in injury to a third
In this case, we note that the direct perpetrators of the offense, namely the person, the negligence or wrongful conduct is the negligence or wrongful conduct
embezzlers belonging to a syndicate, are now fugitives from justice. They have, of the master, for which he is liable.18 The general rule is that if the master is
even if temporarily, escaped liability for the embezzlement of millions of pesos. injured by the negligence of a third person and by the concurring contributory
We are thus left only with the task of determining who of the present parties negligence of his own servant or agent, the latter’s negligence is imputed to his
before us must bear the burden of loss of these millions. It all boils down to the superior and will defeat the superior’s action against the third person, assuming,
question of liability based on the degree of negligence among the parties of course that the contributory negligence was the proximate cause of the injury of
concerned. which complaint is made.19

Foremost, we must resolve whether the injured party, Ford, is guilty of the Accordingly, we need to determine whether or not the action of Godofredo Rivera,
“imputed contributory negligence” that would defeat its claim for reimbursement, Ford’s General Ledger Accountant, and/or Alexis Marindo, his assistant, was the
bearing in mind that its employees, Godofredo Rivera and Alexis Marindo, were proximate cause of the loss or damage. As defined, proximate cause is that which,
among the members of the syndicate. in the natural and continuous sequence, unbroken by any efficient, intervening
cause produces the injury, and without which the result would not have
Citibank points out that Ford allowed its very own employee, Godofredo Rivera, to occurred.20
negotiate the checks to his co-conspirators, instead of delivering them to the
designated authorized collecting bank (Metrobank-Alabang) of the payee, CIR. It appears that although the employees of Ford initiated the transactions
Citibank bewails the fact that Ford was remiss in the supervision and control of attributable to an organized syndicate, in our view, their actions were not the
its own employees, inasmuch as it only discovered the syndicate’s activities proximate cause of encashing the checks payable to the CIR. The degree of Ford’s
through the information given by the payee of the checks after an unreasonable negligence, if any, could not be characterized as the proximate cause of the injury
period of time. to the parties.

PCIBank also blames Ford of negligence when it allegedly authorized Godofredo The Board of Directors of Ford, we note, did not confirm the request of Godofredo
Rivera to divert the proceeds of Citibank Check No. SN-04867, instead of using it Rivera to recall Citibank Check No. SN-04867. Rivera’s instruction to replace the
to pay the BIR. As to the subsequent run-around of funds of Citibank Check Nos. said check with PCIBank’s Manager’s Check was not in the ordinary course of
SN-10597 and 16508, PCIBank claims that the proximate cause of the damage to business which could have prompted PCIBank to validate the same.
Ford lies in its own officers and employees who carried out the fraudulent
schemes and the transactions. These circumstances were not checked by other As to the preparation of Citibank Checks Nos. SN-10597 and 16508, it was
officers of the company, including its comptroller or internal auditor. PCIBank established that these checks were made payable to the CIR. Both were crossed
contends that the inaction of Ford despite the enormity of the amount involved checks. These checks were apparently turned around by Ford’s employees, who
was a sheer negligence and stated that, as between two innocent persons, one of
were acting on their own personal capacity. It is a well-settled rule that the relationship between the payee or holder of
commercial paper and the bank to which it is sent for collection is, in the absence
Given these circumstances, the mere fact that the forgery was committed by a of an agreement to the contrary, that of principal and agent. 22 A bank which
drawer-payor’s confidential employee or agent, who by virtue of his position had receives such paper for collection is the agent of the payee or holder.23
unusual facilities for perpetrating the fraud and imposing the forged paper Upon
the bank, does not entitle the bank to shift the loss to the drawer-payor, in the Even considering arguendo, that the diversion of the amount of a check payable to
absence of some circumstance raising estoppel against the drawer.21 This rule the collecting bank in behalf of the designated payee may be allowed, still such
likewise applies to the checks fraudulently negotiated or diverted by the diversion must be properly authorized by the payor. Otherwise stated, the
confidential employees who hold them in their possession. diversion can be justified only by proof of authority from the drawer, or that the
drawer has clothed his agent with apparent authority to receive the proceeds of
With respect to the negligence of PCIBank in the payment of the three checks such check.
involved, separately, the trial courts found variations between the negotiation of
Citibank Check No. SN-04867 and the misapplication of total proceeds of Checks Citibank further argues that PCI Bank’s clearing stamp appearing at the back of
SN-10597 and 16508. Therefore, we have to scrutinize, separately, PCIBank’s the questioned checks stating that ALL PRIOR INDORSEMENTS AND/OR
share of negligence when the syndicate achieved its ultimate agenda of stealing LACK OF INDORSEMENTS GUARANTEED should render PCIBank liable
the proceeds of these checks. because it made it pass through the clearing house and therefore Citibank had no
other option but to pay it. Thus, Citibank asserts that the proximate cause of
G.R. Nos. 121413 and 121479 Ford’s injury is the gross negligence of PCIBank. Since the questioned crossed
check was deposited with PCIBank, which claimed to be a depository/collecting
bank of the BIR, it had the responsibility to make sure that the check in question
Citibank Check No. SN-04867 was deposited at PCIBank through its Ermita
is deposited in Payee’s account only.
Branch. It was coursed through the ordinary banking transaction, sent to Central
Clearing with the indorsement at the back “all prior indorsements and/or lack of
indorsements guaranteed,” and was presented to Citibank for payment. Indeed, the crossing of the check with the phrase “Payee’s Account Only,” is a
Thereafter PCIBank, instead of remitting the proceeds to the CIR, prepared two warning that the check should be deposited only in the account of the CIR. Thus,
of its Manager’s checks and enabled the syndicate to encash the same. it is the duty of the collecting bank PCIBank to ascertain that the check be
deposited in payee’s account only. Therefore, it is the collecting bank (PCIBank)
which is bound to scrutinize the check and to know its depositors before it could
On record, PCIBank failed to verify the authority of Mr. Rivera to negotiate the
make the clearing indorsement “all prior indorsements and/or lack of indorsement
checks. The neglect of PCIBank employees to verify whether his letter requesting guaranteed.”
for the replacement of the Citibank Check No. SN-04867 was duly authorized,
showed lack of care and prudence required in the circumstances.
In Banco de Oro Savings and Mortgage Bank vs. Equitable Banking
Corporation,24 we ruled:
Furthermore, it was admitted that PCIBank is authorized to collect the payment
of taxpayers in behalf of the BIR. As an agent of BIR, PCIBank is duty bound to
consult its principal regarding the unwarranted instructions given by the payor or “Anent petitioner’s liability on said instruments, this court is in full accord with
its agent. As aptly stated by the trial court, to wit: the ruling of the PCHC’s Board of Directors that:

“x x x. Since the questioned crossed check was deposited with IBAA [now PCIBank], which ‘In presenting the checks for clearing and for payment, the defendant made an express
claimed to be a depository/collecting bank of the BIR, it has the responsibility to make sure guarantee on the validity of “all prior endorsements.” Thus, stamped at the back of the
that the check in question is deposited in Payee’s account only. checks are the defendant’s clear warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK
OF ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff would not have
paid on the checks.’
xxx xxx xxx
No amount of legal jargon can reverse the clear meaning of defendant’s warranty. As the
As agent of the BIR (the payee of the check), defendant IBAA should receive instructions warranty has proven to be false and inaccurate, the defendant is liable for any damage
only from its principal BIR and not from any other person especially so when that person is arising out of the falsity of its representation.”25
not known to the defendant. It is very imprudent on the part of the defendant IBAA to just
rely on the alleged telephone call of one Godofredo Rivera and in his signature to the
authenticity of such signature considering that the plaintiff is not a client of the defendant Lastly, banking business requires that the one who first cashes and negotiates
IBAA.” the check must take some precautions to learn whether or not it is genuine. And if
the one cashing the check through indifference or other circumstance assists the Castro open a Checking account of a fictitious person named “Reynaldo Reyes.”
forger in committing the fraud, he should not be permitted to retain the proceeds Castro deposited a worthless Bank of America Check in exactly the same amount
of the check from the drawee whose sole fault was that it did not discover the of Ford checks. The syndicate tampered with the checks and succeeded in
forgery or the defect in the title of the person negotiating the instrument before replacing the worthless checks and the eventual encashment of Citibank Check
paying the check. For this reason, a bank which cashes a check drawn upon Nos, SN-10597 and 16508. The PCIBank Pro-manager, Castro, and his co-
another bank, without requiring proof as to the identity of persons presenting it, conspirator Assistant Manager apparently performed their activities using
or making inquiries with regard to them, cannot hold the proceeds against the facilities in their official capacity or authority but for their personal and private
drawee when the proceeds of the checks were afterwards diverted to the hands of gain or benefit.
a third party. In such cases the drawee bank has a right to believe that the
cashing bank (or the collecting bank) had, by the usual proper investigation, A bank holding out its officers and agents as worthy of confidence will not be
satisfied itself of the authenticity of the negotiation of the checks. Thus, one who permitted to profit by the frauds these officers or agents were enabled to
encashed a check which had been forged or diverted and in turn received payment perpetrate in the apparent course of their employment; nor will it be permitted to
thereon from the drawee, is guilty of negligence which proximately contributed to shirk its responsibility for such frauds, even though no benefit may accrue to the
the success of the fraud practiced on the drawee bank. The latter may recover bank therefrom. For the general rule is that a bank is liable for the fraudulent
from the holder the money paid on the check.26 acts or representations of an officer or agent acting within the course and
apparent scope of his employment or authority.29 And if an officer or employee of
Having established that the collecting bank’s negligence is the proximate cause of a bank, in his official capacity, receives money to satisfy an evidence of
the loss, we conclude that PCIBank is liable in the amount corresponding to the indebtedness lodged with his bank for collection, the bank is liable for his
proceeds of Citibank Check No SN-04867. misappropriation of such sum.30

G.R. No. 128604 Moreover, as correctly pointed out by Ford, Section 531 of Central Bank Circular
No. 580, Series of 1977 provides that any theft affecting items in transit for
The trial court and the Court of Appeals found that PCIBank had no official act in clearing, shall be for the account of sending bank, which in this case is PCIBank.
the ordinary course of business that would attribute to it the case of the
embezzlement of Citibank Check Numbers SN-10597 and 16508, because But in this case, responsibility for negligence does not lie on PCIBank’s shoulders
PCIBank did not actually receive nor hold the two Ford checks at all. The trial alone.
court held, thus:
The evidence on record shows that Citibank as drawee bank was likewise
“Neither is there any proof that defendant PCIBank contributed any official or conscious negligent in the performance of its duties. Citibank failed to establish that its
participation in the process of the embezzlement. This Court is convinced that the switching payment of Ford’s checks were made in due course and legally in order. In its
operation (involving the checks while in transit for “clearing”) were the clandestine or defense, Citibank claims the genuineness and due execution of said checks,
hidden actuations performed by the members of the syndicate in their own personal, covert
considering that Citibank (1) has no knowledge of any infirmity in the issuance of
and private capacity and done without the knowledge of the defendant PCIBank. . . .” 27
the checks in question (2) coupled by the fact that said checks were sufficiently
funded and (3) the endorsement of the Payee or lack thereof was guaranteed by
In this case, there was no evidence presented confirming the conscious PCI Bank (formerly IBAA), thus, it has the obligation to honor and pay the same.
participation of PCIBank in the embezzlement. As a general rule, however, a
banking corporation is liable for the wrongful or tortuous acts and declarations of
For its part, Ford contends that Citibank as the drawee bank owes to Ford an
its officers or agents within the course and scope of their employment.28 A bank
absolute and contractual duty to pay the proceeds of the subject check only to the
will be held liable for the negligence of its officers or agents when acting within
payee thereof, the CIR. Citing Section 6232 of the Negotiable Instruments Law,
the course and scope of their employment. It may be liable for the tortuous acts of
Ford argues that by accepting the instrument, the acceptor which is Citibank
its officers even as regards that species of tort of which malice is an essential
engages that it will pay according to the tenor of its acceptance, and that it will
element. In this case, we find a situation where the PCIBank appears also to be
pay only to the payee, (the CIR), considering the fact that here the check was
the victim of the scheme hatched by a syndicate in which its own management
crossed with annotation “Payees Account Only.”
employees had participated.

As ruled by the Court of Appeals, Citibank must likewise answer for the damages
The pro-manager of San Andres Branch of PCIBank, Remberto Castro, received
incurred by Ford on Citibank Checks Numbers SN-10597 and 16508, because of
Citibank Check Numbers SN-10597 and 16508. He passed the checks to a co-
the contractual relationship existing between the two. Citibank, as the drawee
conspirator, an Assistant Manager of PCIBank’s Meralco Branch, who helped
bank breached its contractual obligation with Ford and such degree of culpability
contributed to the damage caused to the latter. On this score, we agree with the writing.40
respondent court’s ruling.
Our laws on the matter provide that the action upon a written contract must be
Citibank should have scrutinized Citibank Check Numbers SN-10597 and 16508 brought within ten years from the time the right of action accrues. 41 Hence, the
before paying the amount of the proceeds thereof to the collecting bank of the reckoning time for the prescriptive period begins when the instrument was issued
BIR. One thing is clear from the record: the clearing stamps at the back of and the corresponding check was returned by the bank to its depositor (normally
Citibank Check Nos. SN-10597 and 16508 do not bear any initials. Citibank failed a month thereafter). Applying the same rule, the cause of action for the recovery
to notice and verify the absence of the clearing stamps. Had this been duly of the proceeds of Citibank Check No. SN-04867 would normally be a month after
examined, the switching of the worthless checks to Citibank Check Nos. SN- December 19, 1977, when Citibank paid the face value of the check in the amount
10597 and 16508 would have been discovered in time. For this reason, Citibank of P4,746,114.41. Since the original complaint for the cause of action was filed on
had indeed failed to perform what was incumbent upon it, which is to ensure that January 20, 1983, barely six years had lapsed. Thus, we conclude that Ford’s
the amount of the checks should be paid only to its designated payee. The fact cause of action to recover the amount of Citibank Check No. SN-04867 was
that the drawee bank did not discover the irregularity seasonably, in our view, seasonably filed within the period provided by law.
constitutes negligence in carrying out the bank’s duty to its depositors. The point
is that as a business affected with public interest and because of the nature of its Finally, we also find that Ford is not completely blameless in its failure to detect
functions, the bank is under obligation to treat the accounts of its depositors with the fraud. Failure on the part of the depositor to examine its passbook,
meticulous care, always having in mind the fiduciary nature of their statements of account, and cancelled checks and to give notice within a
relationship.33 reasonable time (or as required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to mitigate the banks’
Thus, invoking the doctrine of comparative negligence, we are of the view that liability by reducing the award of interest from twelve percent (12%) to six
both PCIBank and Citibank failed in their respective obligations and both were percent (6%) per annum. As provided in Article 1172 of the Civil Code of the
negligent in the selection and supervision of their employees resulting in the Philippines, responsibility arising from negligence in the performance of every
encashment of Citibank Check Nos. SN-10597 and 16508. Thus, we are kind of obligation is also demandable, but such liability may be regulated by the
constrained to hold them equally liable for the loss of the proceeds of said checks courts, according to the circumstances. In, quasi-delicts, the. contributory
issued by Ford in favor of the CIR. negligence of the plaintiff shall reduce the damages that he may recover. 42

Time and again, we have stressed that banking business is so impressed with WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
25017, are AFFIRMED. PCIBank, known formerly as Insular Bank of Asia and America, is declared
public interest where the trust and confidence of the public in general is of solely responsible for the loss of the proceeds of Citibank
paramount importance such that the appropriate standard of diligence must be
very high, if not the highest, degree of diligence.34 A bank’s liability as obligor is
Check No. SN-04867 in the amount of P4,746,114.41, which shall be paid together with six percent (6%)
not merely vicarious but primary, wherein the defense of exercise of due diligence interest thereon to Ford Philippines, Inc. from the date when the original complaint was filed until said
in the selection and supervision of its employees is of no moment.35 amount is fully paid.

Banks handle daily transactions involving millions of pesos. 36 By the very nature However, the Decision and Resolution of the Court of Appeals in CA-G.R. No. 28430 are
MODIFIED as follows: PCIBank and Citibank are adjudged liable for and must share the loss,
of their work the degree of responsibility, care and tnistworthiness expected of (concerning the proceeds of Citibank Check Numbers SN-10597 and 16508 totalling P12,163,298.10) on a
their employees and officials is far greater than those of ordinary clerks and fifty-fifty ratio, and each bank is ORDERED to pay Ford Philippines, Inc. P6,081,649.05, with six percent
employees.37 Banks are expected to exercise the highest degree of diligence in the (6%) interest thereon, from the date the complaint was filed until full payment of said amount.
selection and supervision of their employees.38
Costs against Philippine Commercial International Bank and Citibank, N.A. SO ORDERED.

On the issue of prescription, PCIBank claims that the action of Ford had
prescribed because of its inability to seek judicial relief seasonably, considering Notes.—Issuing a crossed check imposes no legal obligation on the drawee not to honor such a
check. (Gempesaw vs. Court of Appeals, 218 SCRA 682 [19931)
that the alleged negligent act took place prior to December 19, 1977 but the relief
was sought only in 1983, or seven years thereafter.
There is no contractual relation created between a drawee bank and the payee as a result of the
payment by the former of the amount of the check. (Security Bank and Trust Company vs. Court of
The statute of limitations begins to run when the bank gives the depositor notice Appeals, 291 SCRA 33 [1998])
of the payment, which is ordinarily when the check is returned to the alleged
drawer as a voucher with a statement of his account,39 and an action upon a check
is ordinarily governed by the statutory period applicable to instruments in
car while the same was in motion: There is nothing in the record in the present
case to justify a contribution of damages. One is not entitled to recover damages
for personal injuries which. he himself, through his own negligence, occasioned,
without any negligence, imprudence or malice on the part of the person or entity
[No. 29462. March 7, 1929] charged with causing said damages.
APPEAL from a judgment of the Court of First Instance of Manila. Concepcion, J.
STREET, J.:
IGNACIO DEL PRADO, plaintiff and appellee, vs. MANILA ELECTRIC CO.,
defendant and appellant. This action was instituted in the Court of First Instance of Manila by Ignacio del
Prado to recover damages in the amount of P50,000 for personal injuries alleged
1.
CARRIERS; STREET RAILWAY; PASSENGER BOARDING MOVING CAR; to have been caused by the negligence of the defendant, the Manila Electric
DUTY OF MOTORMAN NOT TO INCREASE RISK.—Though there is no Company, in the operation of one of its street cars in the City of Manila. Upon
obligation on the part of a street railway company to stop its cars to take on hearing the cause the trial court awarded to the plaintiff the sum of ?10,000, as
intending passengers at other points than those appointed for stoppage, damages, with costs of suit, and the defendant appealed.
nevertheless when the motorman sees a person attempting to board the car while
in motion, and at a place not appointed for stopping, he should not do any act to The appellant, the Manila Electric Company, is engaged in operating street cars
increase the peril of such person; and if, in violation of this duty, the motorman in in the City -of Manila for the conveyance of passengers; and on the morning of
charge of a car prematurely accelerates speed while the intending passenger is in November 18, 1925, one Teodorico Florenciano, as appellant's motorman, was in
the act of boarding the car, with the result that he slips and gets his foot crushed charge of car No. 74 running from east to west on R. Hidalgo Street, the scene of
under the wheel of the moving car, the company is civilly liable in damages. the accident being at a point near the intersection of said street and Mendoza
Street. After the car had stopped at its appointed place for taking on and letting
2.
ID.; ID.; ID.; OBLIGATION OF COMPANY TO PASSENGER.—The relation off passengers, just east of the intersection, it resumed its course at a moderate
between a carrier of passengers for hire and its patrons is of a contractual nature; speed under the guidance of the motorman. The car had proceeded only a short
and the failure upon part of the carrier to use due care in conveying its distance, however, when the plaintiff, Ignacio del Prado, ran across the street to
passengers safely is a breach of obligation under article 1101, and related catch the car, his approach being made from the left. The car was of the kind
provisions, of the Civil Code. Furthermore, the duty that the carrier of passengers having entrance and exit at either end, and the movement of the plaintiff was so
owes to its patrons extends to persons boarding the. cars as well as to those timed that he arrived at the front entrance of the car at the moment when the car
alighting theref rom. was passing.

3.
MASTER AND SERVANT; NEGLIGENCE OF SERVANT; BREACH OF The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends
CONTRACTUAL DUTY.—The defense indicated in the last paragraph of article to show that the plaintiff, upon approaching the car, raised his hand as an
1903 of the Civil Code is not available to the master when his servant is guilty of indication to the motorman of his desire to board the car, in response to which the
a breach of duty under article 1101 and related provisions of said Code. motorman eased up a little, without stopping. Upon this the plaintiff seized, with
his left hand, the front perpendicular handpost, at the same time placing his left.
4.
NEGLIGENCE; CONTRIBUTORY NEGLIGENCE; MITIGATION OF foot upon the platform. However, before the plaintiff's position had become secure,
DAMAGES.—Contributory negligence upon part of a plaintiff, not amounting to and even before his raised right foot had reached the platf orm, the motorman
the proximate cause of his injury, is not completely destructive of his right of applied the power, with the result that the car gave a slight lurch forward. This
action in cases where liability arises from breach of a contractual duty; but such sudden impulse to the car caused the plaintiff 's (f oot to slip, and his hand was
contributory negligence goes in mitigation of damages, under article 1103 of the jerked loose from the handpost. He therefore fell to the ground, and his right foot
Civil Code. was caught and crushed by the moving car. The next day the member had to be
amputated in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side with
Per JOHNSON, J., dissenting: both right and lef t. hand. The latter statement may possibly be incorrect as
regards the use of his right hand by the plaintiff, but we are of the opinion that
5.
STREET RAILWAY COMPANY, LIABILITY OF, FOR ALLEGED DAMAGES the finding of the trial court to the effect that the motorman slowed up slightly as
TO PASSENGERS.—A street railway company should not be held liable for the plaintiff was boarding the car and that the plaintiff's fall was due in part at
damages done to a passenger when the motorman managed the car carefully and least to a sudden forward movement at the moment when the plaintiff put his foot
with ordinary prudence at the moment of the alleged accident, and when the on the platform is supported by the evidence and ought not to be disturbed by us.
passenger acted with imprudence and lack of care in attempting to board a street
The motorman stated at the trial that he did not see the plaintiff attempting to to prevent the damage suffered by the plaintiff; and to establish this contention
board the car; that he did not accelerate the speed of the car as claimed by the the company introduced testimony showing that due care had been used in
plaintiff's witnesses; and that he in fact knew nothing of the incident until after training and instructing the motorman in charge of this car in his art. But this
the plaintiff had been hurt and some one called to him to stop. We are not proof is irrelevant in view of the fact that the liability involved was derived from a
convinced of the complete candor of this statement, for we are unable to see how a breach of obligation under article 1101 of the Civil Code and related provisions.
motorman operating this car could have failed to see a person boarding the car (Manila Railroad Co. vs. Compañía Trasatlántica and Atlantic, Gulf & Pacific Co.,
under the circumstances revealed in this case. It must be remembered that the 38 Phil., 875, 887; De Guia vs. Manila Electric Railroad of Light Co., 40 Phil., 706,
front handpost which, as all witnesses agree, was grasped by the plaintiff in 710.)
attempting to board the car, was immediately on the left side of the motorman.
Another practical difference between liability for negligence arising under article
With respect to the legal aspects of the case we may observe at the outset that 1902 of the Civil Code and liability arising from negligence in the performance of
there is no obligation on the part of a street railway company to stop its cars to let a positive duty, under article 1101 and related provisions of the Civil Code, is
on intending passengers at other points than those appointed for stoppage. In fact that, in dealing with the latter form of negligence, the court is given a discretion
it would be impossible to operate a system of street cars if a company engaged in to mitigate liability according to the circumstances of the case (art 1103). No such
this business were required to stop any and everywhere to take on people who are general discretion is given by the Code in dealing with liability arising under
too indolent, or who imagine themselves to be in too great a hurry, to go to the article 1902; though possibly the same end is reached by courts in dealing with
proper places for boarding the cars, Nevertheless, although the motorman of this the latter form of liability because of the latitude of the considerations pertinent
car was not bound to stop to let the plaintiff on, it was his duty to do no act that to cases arising under this article.
would have the effect of increasing the plaintiff's peril while he was attempting to
board the car. The premature acceleration of the car was, in our opinion, a breach As to the contributory negligence of the plaintiff, we are of the opinion that it
of this duty. should be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a
mitigating circumstance under article 1103 of the Civil Code. It is obvious that
The relation between a carrier of passengers for hire and its patrons is of a the plaintiff's negligence in attempting to board the moving car was not the
contractual nature; and a failure on the part of the carrier to use due care in proximate cause of the injury. The direct and proximate cause of the injury was
carrying its passengers safely is a breach of duty (culpa contractual) under the act of appellant's motorman in putting on the power prematurely. A person
articles 1101, 1103, and 1104 of the Civil Code. Furthermore, the duty that the boarding a moving car must be taken to assume the risk of injury from boarding
carrier of passengers owes to its patrons extends to persons boarding the cars as the car under the conditions open to his view, but he cannot fairly be held to
well as to those alighting therefrom. The case of Cangco vs. Manila Railroad Co. assume the risk that the motorman, having the situation in view, will increase his
(38 Phil., 768), supplies an instance of the violation of this duty with respect to a peril by accelerating the speed of the car bef ore he is planted safely on the platf
passenger who was getting, off of a train. In that case the plaintiff stepped off of a orm. Again, the situation before us is one where the negligent act of the
moving train, while it was slowing down in a station, and at a time when it was company's servant succeeded the negligent act of the plaintiff, and the negligence
too dark for him to see clearly where he was putting his feet. The employees of the of the company must be considered the proximate cause of the injury. The rule
company had carelessly left watermelons on the platf orm at the place where the here applicable seems to be analogous to, if not identical with that which is
plaintiff alighted, with the result that his feet slipped and he fell under the car, sometimes referred to as the doctrine of "the last clear chance." In accordance
where his right arm was badly injured. This court held that the railroad company with this doctrine, the contributory negligence of the party injured will not defeat
was liable for breach of positive duty (culpa contractual), and the plaintiff was the action if it be shown that the defendant might, by the exercise of reasonable
awarded damages in the amount of P2,500 for the loss of his arm. In the opinion care and prudence, have avoided the consequences of the negligence of the injured
in that case the distinction is clearly drawn between a liability for negligence party (20 R. C. L., p. 139; Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W.,
arising from breach of contractual duty and that arising under articles 1902 and 167). The negligence of the plaintiff was, however, contributory to the accident
1903 of the Civil Code (culpa, aquiliana). and must be considered as a mitigating circumstance.

The distinction between these two sorts of negligence is important in this With respect to the effect of this injury upon the plaintiff's earning power, we note
jurisdiction, for the reason that where liability arises from a mere tort (culpa, that, although he lost his foot, he is able to use an artificial member without great
aquiliana), not involving a breach of positive obligation, an employer, or master, inconvenience and his earning capacity has probably not been reduced by more
may exculpate himself, under the last paragraph of article 1903 of the Civil Code, than 30 per centum. In view of the precedents found in our decisions with respect
by proving that he had exercised due diligence to prevent the damage; whereas to the damages that ought to be awarded for the loss of a limb, and more
this def ense is not available if the liability of the master arises from a breach of particularly Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs.
contractual duty (culpa contractual). In the case before us the company pleaded Manila Railroad Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad
as a special defense that it had used all the diligence of a good father of a family and Light Co. (44 Phil, 165), and in view of all the circumstances connected with
the case, we are of the opinion that the plaintiff will be adequately compensated
by an award of P2,500.

It being understood, therefore, that the appealed judgment is modified by


reducing the recovery to the sum of P2,500, the judgment, as thus modified, is
affirmed. So ordered, with costs against the appellant.

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

JOHNSON, J., with whom concurs JOHNS, J., dissenting:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to the second division
for decision. I. was then the ponente. I. was then convinced, as I. am now, after a
reexamination of the record, that the judgment of the lower court should be
revoked for the following reasons:

(a)
That the motorman managed the car carefully and with ordinary prudence at the
moment the alleged accident occurred;

(b)
That the appellee acted with imprudence and lack of due care in attempting to board a
street car while the same was in motion; and

(c)
That he contributed to his own injury, without any negligence or malice or imprudence
on the part .of the defendant.

There is nothing in the record which even remotely justifies a contribution of


damages between the appellee and the appellant. The appellee should be required
to suffer the damages which he himself, through his own negligence, occasioned,
without any negligence, imprudence or malice on the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and the appellant
absolved from all liability under the compaint.

Judgment modified.
part of NPC is a question of fact which properly falls within the jurisdiction of the
Court of Appeals and will not be disturbed by this Court unless the same is
clearly unfounded, Thus, in Tolentino v. Court of Appeals, (150 SCRA 26, 36) we
ruled: “Moreover, the findings of fact of the Court of Appeals are generally final
and conclusive upon the Supreme Court (Leonardo v. Court of Appeals, 120 SCRA
No. L-47379. May 16,1988 *
890 [1983]. In fact it is settled that the Supreme Court is not supposed to weigh
evidence but only to determine its substantially (Nunez v. Sandiganbayan, 100
NATIONAL POWER CORPORATION, petitioner, vs. HONORABLE COURT OF APPEALS SCRA 433 [1982] and will generally not disturb said findings of fact when
and ENGINEERING CONSTRUCTION, INC., respondents.
supported by substantial evidence (Aytona v. Court of appeals, 113 SCRA 575
[1985]; Collector of Customs of Manila v. Intermediate Appellate Court, 137
No. L-47481. May 16, 1988.* SCRA 3 [1985]. On the other hand substantial evidence is defined as such
relevant evidence as a reasonable mind might accept as adequate to support a
ENGINEERING CONSTRUCTION, INC., petitioner, vs. COURT OF APPEALS and conclusion (Philippine Metal Products, Inc. v. Court of Industrial Relations, 90
NATIONAL POWER CORPORATION, respondents. SCRA 135 [1979]; Police Commission v. Lood, 127 SCRA 757 [1984]; Canete v.
WCC, 136 SCRA 302 [1985])."
Civil Law; Torts and Damages; Negligence; NPC cannot escape liability because
its negligence was the proximate cause of the loss and damage even though the Same; Same; Same; Same; Consequential damages; Court of Ap-peals did not err
typhoon was an act of God.—It is clear from the appellate court’s decision that in reducing the consequential damages from P333,200.00 to P19,000.00;
based on its findings of fact and that of the trial court’s, petitioner NPC was Reasons.—Likewise, it did not err in re-ducing the consequential damages from
undoubtedly negligent because it opened the spillway gates of the Angat Dam P333,200.00 to P19,000.00. As shown by the records, while there was no
only at the height of typhoon “Welming” when it knew very well that it was safer categorical statement or admission on the part of ECI that it bought a new crane
to have opened the same gradually and earlier, as it was also undeniable that to replace the damaged one, a sales contract was presented to the effect that the
NPC knew of the coming typhoon at least four days before it actually struck. And new crane would be delivered to it by Asian Enterprises within 60 days from the
even though the typhoon was an act of God or what we may call force majeure, opening of the letter of credit at the cost of P1 06,336.75. The offer was made by
NPC cannot escape liability because its negligence was the proximate cause of the Asian Enterprises a few days after the flood. As compared to the amount of
loss and damage. As we have ruled in Juan F. Nakpil & Sons v. Court of Appeals P106,336.75 for a brand new crane and paying the alleged amount of P4,000.00 a
(144 SCRA 596, 606–607): Thus, if upon the happening of a fortuitous event or an day as rental for the use of a temporary crane, which use petitioner ECI alleged to
act of God, there concurs a corresponding fraud, negligence, delay or violation or have lasted for a period of one year, thus, totalling P1 20,000.00, plus the fact that
contravention in any manner of the tenor of the obligation as provided for in there was already a sales contract between it and Asian Enterprises, there is no
Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot reason why ECI should opt to rent a temporary crane for a period of one year. The
escape liability. The principle embodied in the act of God doctrine strictly requires appellate court also found that the damaged crane was subsequently repaired and
that the act must be one occasioned exclusively by the violence of nature and re-activated and the cost of repair was P77,000.00. Therefore, it included the said
human agencies are to be excluded from creating or entering into the cause of the amount in the award of compensatory damages, but not the value of the new
mischief. When the effect, the cause of which is to be considered, is found to be in crane. We do not find anything erroneous in the decision of the appellate court
part the result of the participation of man, whether it be from active intervention that the consequential damages should represent only the service of the
or neglect, or failure to act, the whole occurrence is thereby humanized, as it was, temporary crane for one month. A contrary ruling would result in the unjust
and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. enrichment of ECI.
1174–1175). Thus, it has been held that when the negligence of a person concur s
with an act of God in producing a loss, such person is not exempt from liability by
Same; Same; Same; Same; Exemplary Damages; Appellate court is correct in
showing that the immediate cause of the damage was the act of God. To be
eliminating exemplary damages since there was no bad faith and gross negligence
exempt from liability for loss because of an act of God, he must be free from any
on the part of NPC.—As to the question of exemplary damages, we sustain the
previous negligence or misconduct by which the loss or damage may have been
appellate court in eliminating the same since it found that there was no bad faith
occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49
on the part of NPC and that neither can the latter’s negligence be considered
O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam
gross. In Dee Hua Liong Electrical Equipment Corp. v. Reyes, (145 SCRA 713,
v. Smith, 45 Phil. 657)."
719) we ruled: “Neither may private respondent recover exemplary damages since
he is not entitled to moral or compensatory damages, and again because the
Same; Same; Same; Same; The question of whether or not there was negligence on petitioner is not shown to have acted in a wanton, fraudulent, reckless or
the part of NPC is a question of fact which falls within the jurisdiction of the oppressive manner (Art. 2234, Civil Code; Yutuk v. Manila Electric Co., 2 SCRA
CA.—Furthermore, the question of whether or not there was negligence on the 377; Francisco v. Government Service Insurance System, 7 SCRA 577; Gutierrez
v. Villegas, 8 SCRA 527; Air France v. Carrascoso, 18 SCRA 155; Pan Pacific of ECI at the Ipo site with terrific impact, as a result of which the latter’s
(Phil.) v. Phil. Advertising Corp., 23 SCRA 977; Marchan v. Mendoza, 24 SCRA stockpile of materials and supplies, camp facilities and permanent structures and
888)." accessories were either washed away, lost or destroyed.
PETITIONS to review the decision of the Court of Appeals.
GUTIERREZ, JR, J.:
The appellate court further found that:
These consolidated petitions seek to set aside the decision of the respondent Court
of Appeals which adjudged the National Power Corporation liable for damages “It cannot be pretended that there was no negligence or that the appellant exercised
against Engineering Construction, Inc. The appellate court, however, reduced the extraordinary care in the opening of the spillway gates of the Angat Dam. Maintainers of
amount of damages awarded by the trial court. Hence, both parties filed their the dam knew very well that it was far more safe to open them gradually. But the spillway
gates were opened only when typhoon Welming was already at its height, in a vain effort to
respective petitions: the National Power Corporation (NPC) in G.R. No. 47379,
race against time and prevent the overflow of water from the dam as it ‘was rising
questioning the decision of the Court of Appeals for holding it liable for damages dangerously at the rate of sixty centimeters per hour/ Action could have been taken as early
and the Engineering Construction, Inc. (ECI) in G.R. No. 47481, questioning the as November 3, 1967, when the water in the reservoir was still low. At that time, the gates
same decision for reducing the consequential damages and attorney’s fees and for of the dam could have been opened in a regulated manner. Let it be stressed that the
eliminating the exemplary damages. appellant knew of the coming of the typhoon four days before it actually hit the project
area.” (p. 53, L-47379 Rollo)
The facts are succinctly summarized by the respondent Court of Appeals, as
follows: As to the award of damages, the appellate court held:

“On August 4, 1964, plaintiff Engineering Construction, Inc., being a successful bidder, “We come now to the award of damages. The appellee submitted a list of estimated losses
executed a contract in Manila with the National Waterworks and Sewerage Authority and damages to the tunnel project (Ipo side) caused by the instant flooding of the Angat
(NAWASA), whereby the former undertook to furnish all tools, labor, equipment, and River (Exh. J-1). The damages were itemized in four categories, to wit: Camp Facilities—
materials (not furnished by Owner), and to construct the proposed 2nd Ipo-Bicti Tunnel, P55,700.00; Equipment, Parts and Plant—P375,659.51; Materials—P107,175.80; and
Intake and Outlet Structures, and Appurtenant Structures, and Appurtenant Features, at Permanent Structures and accessories—P137,250.00, with an aggregate total amount of
Norzagaray, Bulacan, and to complete said works within eight hundred (800) calendar days P675,785.31. The list is supported by several vouchers which were all submitted as Exhibits
from the date the Contractor receives the formal notice to proceed (Exh. A). K to M-38-a, N to O, P to U-2 and V to X-60-a (Vide: Folders Nos. 1 to 4). The appellant did
not submit proofs to traverse the aforementioned documentary evidence. We hold that the
lower court did not commit any error in awarding P675,785.31 as actual or compensatory
“The project involved two (2) major phases: the first phase comprising the tunnel work damages.”
covering a distance of seven (7) kilometers, passing through the mountain, from the Ipo
river, a part of Norzagaray, Bulacan, where the Ipo Dam of the defendant National Power
Corporation is located, to Bicti; the other phase consisting of the outworks at both ends of “However, We cannot sustain the award of P333,200.00 as consequential
the tunnel. damages. This amount is broken down as follows: P213,200.00 as and for the
rentals of a crane to temporarily replace the one ‘destroyed beyond repair,’ and
“By September 1967, the plaintiff corporation already had completed the first major phase P120,000.00 as one month bonus which the appellee failed to realize in
of the work, namely, the tunnel excavation work. Some portions of the outworks at the Bicti accordance with the contract which the appellee had with NAWASA. Said rental
site were still under construction. As soon as the plaintiff corporation had finished the of the crane allegedly covered the period of one year at the rate of P40.00 an hour
tunnel excavation work at the Bicti site, all the equipment no longer needed there were for 16 hours a day. The evidence, however, shows that the appellee bought a crane
transferred to the Ipo site where some projects were yet to be completed. also a crawler type, on November 10, 1967, six (6) days after the incident in
question (Exh. N). And according to the lower court, which finding was never
“The record shows that on November 4, 1967, typhoon ‘Welming’ hit Central Luzon, passing assailed, the appellee resumed its normal construction work on the Ipo-Bicti
through defendant’s Angat Hydro-electric Project and Dam at Ipo, Norzagaray, Bulacan. Project after a stoppage of only one month. There is no evidence when the
Strong winds struck the project area, and heavy rains intermittently fell. Due to the heavy appellee received the crane from the seller, Asian Enterprise Limited, But there
downpour, the water in the reservoir of the Angat Dam was rising perilously at the rate of
was an agreement that the shipment of the goods would be effected within 60
sixty (60) centimeters per hour. To prevent an overflow of water from the dam, since the
water level had reached the danger height of 212 meters above sea level, the defendant days from the opening of the letter of credit (Exh. N). It appearing that the
corporation caused the opening of the spillway gates.” (pp. 45–46, L-47379 Rollo) contract of sale was consummated, We must conclude or at least assume that the
crane was delivered to the appellee within 60 days as stipulated. The appellee
then could have availed of the services of another crane for a period of only one
The appellate court sustained the findings of the trial court that the evidence
month (after a work stoppage of one month) at the rate of P40.00 an hour for 16
preponderantly established the fact that due to the negligent manner with which
hours a day or a total of P1 9,200.00 as rental.
the spillway gates of the Angat Dam were opened, an extraordinary large volume
of water rushed out of the gates, and hit the installations and construction works
“But the value of the new crane cannot be included as part of actual damages because the “Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
old was reactivated after it was repaired. The cost of the repair was P77,000.00 as shown in corresponding fraud, negligence, delay or violation or contravention in any manner of the
item No. 1 under the Equipment, Parts and Plants category (Exh. J-1), which amount of tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss
repair was already included in the actual or compensatory damages.” (pp. 54–56, L-47379, or damage, the obligor cannot escape liability.
Rollo)
“The principle embodied in the act of God doctrine strictly requires that the act must be one
The appellate court likewise rejected the award of unrealized bonus from occasioned exclusively by the violence of nature and human agencies are to be excluded from
NAWASA in the amount of P120,000.00 (computed at P4,000.00 a day in case creating or entering into the cause of the mischief. When the effect, the cause of which is to
construction is finished before the specified time, i.e., within 800 calendar days), be considered, is found to be in part the result of the participation of man, whether it be
from active intervention or neglect, or failure to act, the whole occurrence is thereby
considering that the incident occurred after more than three (3) years or one
humanized, as it was, and removed from the rules applicable to the acts of God. (1 Corpus
thousand one hundred seventy (1,170) days. The court also eliminated the award Juris, pp. 1174–1175).
of exemplary damages as there was no gross negligence on the part of NPC and
reduced the amount of attorney’s fees from P50,000.00 to P30,000.00.
“Thus, it has been held that when the negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from liability by showing that the immediate
In these consolidated petitions, NPC assails the appellate court’s decision as cause of the damage was the act of God. To be exempt from liability for loss because of an
being erroneous on the ground that the destruction and loss of the ECI’s act of God, he must be free from any previous negligence or misconduct by which the loss or
equipment and facilities were due to force majeure. It argues that the rapid rise of damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker
the water level in the reservoir of its Angat Dam due to heavy rains brought v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604;
Lasam v. Smith, 45 Phil. 657)."
about by the typhoon was an extraordinary occurrence that could not have been
foreseen, and thus, the subsequent release of water through the spillway gates
and its resultant effect, if any, on ECI’s equipment and facilities may rightly be Furthermore, the question of whether or not there was negligence on the part of
attributed to force majeure. NPC is a question of fact which properly falls within the jurisdiction of the Court
of Appeals and will not be disturbed by this Court unless the same is clearly
unfounded. Thus, in Tolentino v. Court of Appeals, (150 SCRA 26, 36) we ruled:
On the other hand, ECI assails the reduction of the consequential damages from
P333,200.00 to P19,000.00 on the grounds that the appellate court had no basis in
concluding that ECI acquired a new Crawler-type crane and therefore, it only can “Moreover, the findings of fact of the Court of Appeals are generally final and conclusive
claim rentals for the temporary use of the leased crane for a period of one month; upon the Supreme Court (Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it is
settled that the Supreme Court is not supposed to weigh evidence but only to determine its
and that the award of P4,000.00 a day or P120,000.00 a month bonus is justified
substantially (Nunez v. Sandiganbayan, 100 SCRA 433 [1982] and will generally not disturb
since the period limitation on ECI’s contract with NAWASA had dual effects, ie., said findings of fact when supported by substantial evidence (Aytona v. Court of Appeals,
bonus for earlier completion and liquidated damages for delayed performance; 113 SCRA 575 [1985]; Collector of Customs of Manila v. Intermediate Appellate Court, 137
and in either case at the rate of P4,000.00 daily. Thus, since NPC’s negligence SCRA 3 [1985]. On the other hand substantial evidence is defined as such relevant evidence
compelled work stoppage for a period of one month, the said award of P120,000.00 as a reasonable mind might accept as adequate to support a conclusion (Philippine Metal
is justified. ECI further assailes the reduction of attorney’s fees and the total Products, Inc. v. Court of Industrial Relations, 90 SCRA 135 [1979]; Police Commission v.
elimination of exemplary damages. Lood, 127 SCRA 757 [1984]; Canete v. WCC, 136 SCRA 302 [1985])."

Both petitions are without merit. Therefore, the respondent Court of Appeals did not err in holding the NPC liable
for damages.
It is clear from the appellate court’s decision that based on its findings of fact and
that of the trial court’s, petitioner NPC was undoubtedly negligent because it Likewise, it did not err in reducing the consequential damages from P333,200.00
opened the spillway gates of the Angat Dam only at the height of typhoon to P19,000.00. As shown by the records, while there was no categorical statement
“Welming” when it knew very well that it was safer to have opened the same or admission on the part of ECI that it bought a new crane to replace the
gradually and earlier, as it was also undeniable that NPC knew of the coming damaged one, a sales contract was presented to the effect that the new crane
typhoon at least four days before it actually struck. And even though the typhoon would be delivered to it by Asian Enterprises within 60 days from the opening of
was an act of God or what we may call force majeure, NPC cannot escape liability the letter of credit at the cost of P106,336.75. The offer was made by Asian
because its negligence was the proximate cause of the loss and damage. As we Enterprises a few days after the flood. As compared to the amount of P1 06,336.75
have ruled in Juan F. Nakpil & Sons v. Court of Appeals, (144 SCRA 596, 606– for a brand new crane and paying the alleged amount of P4,000.00 a day as rental
607): for the use of a temporary crane, which use petitioner ECI alleged to have lasted
for a period of one year, thus, totalling P120,000.00, plus the fact that there was
already a sales contract between it and Asian Enterprises, there is no reason why
ECI should opt to rent a temporary crane for a period of one year. The appellate
court also found that the damaged crane was subsequently repaired and
reactivated and the cost of repair was P77,000.00. Therefore, it included the said
amount in the award of of compensatory damages, but not the value of the new
crane. We do not find anything erroneous in the decision of the appellate court
that the consequential damages should represent only the service of the
temporary crane for one month. A contrary ruling would result in the unjust
enrichment of ECI.

The P120,000.00 bonus was also properly eliminated as the same was granted by
the trial court on the premise that it represented ECI’s lost opportunity “to earn
the one month bonus from NAWASA x x x.” As stated earlier, the loss or damage
to ECI’s equipment and facilities occurred long after the stipulated deadline to
finish the construction. No bonus, therefore, could have been possibly earned by
ECI at that point in time. The supposed liquidated damages for failure to finish
the project within the stipulated period or the opposite of the claim for bonus is
not clearly presented in the records of these petitions. It is not shown that
NAWASA imposed them.

As to the question of exemplary damages, we sustain the appellate court in


eliminating the same since it found that there was no bad faith on the part of
NPC and that neither can the latter’s negligence be considered gross. In Dee Hua
Liong Electrical Equipment Corp. v. Reyes, (145 SCRA 713, 719) we ruled:

“Neither may private respondent recover exemplary damages since he is not entitled to
moral or compensatory damages, and again because the petitioner is not shown to have
acted in a wanton, fraudulent, reckless or oppressive manner (Art. 2234, Civil Code; Yutuk
v. Manila Electric Co., 2 SCRA 377; Francisco v. Government Service Insurance System, 7
SCRA 577; Gutierrez v. Villegas, 8 SCRA 527; Air France v. Carrascoso, 18 SCRA 155; Pan
Pacific (Phil.) v. Phil. Advertising Corp., 23 SCRA 977; Marchan v. Mendoza, 24 SCRA
888)."

We also affirm the reduction of attorney’s fees from P50,000.00 to P30,000.00.


There are no compelling reasons why we should set aside the appellate court’s
finding that the latter amount suffices for the services rendered by ECI’s counsel. ‘

WHEREFORE, the petitions in G.R. No. 47379 and G.R. No. 47481 are both
DISMISSED for LACK OF MERIT. The decision appealed from is AFFIRMED.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortés, JJ., concur.

Petitions dismissed. Decision affirmed.

Note.—No exemplary damages where there is no evidence of other party


having acted in wanton, fraudulent or reckless or oppressive manner. (Dee Hua
Liong Electric Equipment Corporation vs. Reyes, 145 SCRA 713).
beside Tano. When Tano was approaching the vicinity of the airport road
entrance on his left, he saw two vehicles racing against each other from the
opposite direction. Tano stopped his vehicle and waited for the two racing vehicles
to pass by. The stirred cloud of dust made visibility extremely bad. Instead of
waiting for the dust to settle, Tano started to make a sharp left turn towards the
G.R. No. 101683. February 23, 1995.*
airport road. When he was about to reach the center of the right lane, the
motorcycle driven by Monterola suddenly emerged from the dust and smashed
LBC AIR CARGO, INC., FERNANDO M. YU and JAIME TANO, petitioners, vs. head-on against the right side of the LBC van. Monterola died from the severe
HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y injuries he sustained.
OYON-OYON, represented by PATROCENIA GRONDIANO y MONTEROLA,
and PATROCENIA GRONDIANO y MONTEROLA, respondents. A criminal case for "homicide thru reckless imprudence" was filed against Tano. A
civil suit was likewise instituted by the heirs of deceased Monterola against Tano,
Negligence; Damages; Doctrine of Last Clear Chance; Essence of.—Petitioners along with Fernando Yu and LBC Air Cargo Incorporated, for the recovery of
poorly invoke the doctrine of "last clear chance" (also referred to, at times, as damages. The two cases were tried jointly by the Regional Trial Court, Branch 29,
"supervening negligence" or as "discovered peril"). The doctrine, in essence, is to of Surigao del Sur.
the effect 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 On 29 July 1990, the trial court dismissed both cases on the ground that the
determine whose fault or negligence should be attributed to the incident, the one proximate cause of the "accident" was the negligence of deceased Rogelio
who had the last clear opportunity to avoid the impending harm and failed to do Monterola.
so is chargeable with the consequences thereof (see Picart vs. Smith, 37 Phil. 809).
Stated differently, the rule would also mean that an antecedent negligence of a
person does not preclude the recovery of damages for the supervening negligence Private respondent appealed the dismissal of the civil case to the Court of
of, or bar a defense against liability sought by, another if the latter, who had the Appeals. On 18 July 1991, the appellate court reversed the court a quo. It held:
last fair chance, could have avoided the impending harm by the exercise of due
diligence. "WHEREFORE, the judgment appealed from is REVERSED, and another one is hereby
rendered ordering the defendants Jamie Tano and LBC Air Cargo, Inc. to jointly and
severally pay the plaintiff Patrocinia Monterola the following amounts:
Same; Same; Same; Court agrees with the appellate court that there indeed was
contributory negligence on the victim's part that could warrant a mitigation of
"To SHERWIN MONTEROLA:
petitioners' liability for damages.—It is true, however, that the deceased was not
all that free from negligence in evidently speeding too closely behind the vehicle
1. "1.
Indemnity for the death of Rogelio Monterola—P50,000.00
he was following. We, therefore, agree with the appellate court that there indeed
2. "2.
For Moral damages—20,000.00
was contributory negligence on the victim's part that could warrant a mitigation 3. 'To PATROCINIA GRONDIANO Y MONTEROLA:
of petitioners' liability for damages. 4. "3.
Actual damages—P7,361.00
PETITION for review of a decision of the Court of Appeals. 5. "4.
Hospitals & Burial Expenses—15,000.00
The facts are stated in the opinion of the Court. 6. "5.
Attorney's Fees and Expenses of Litigation—10,000.00
VITUG, J.:

"Plus the costs.


In this petition for review, the application of the doctrines of "proximate cause"
and "last clear chance" is, once again, being put to test. The petition questions the
"Actual payment of the aforementioned amounts should, however, be reduced by twenty
decision of the Court of Appeals, dated 18 July 1991, which has reversed that of
(20%) per cent."1
the trial court.

In the instant petition for review, petitioners contend that—


The case arose from a vehicular collision which occurred at about 11:30 in the
morning of 15 November 1987. Rogelio Monterola, a licensed driver, was traveling
"1.
The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the driving
on board his Suzuki motorcycle towards Mangagoy on the right lane along a dusty
of his vehicle and in failing to give a signal to approaching vehicles of his intention to make
national road in Bislig, Surigao del Sur. At about the same time, a cargo van of a left turn.
the LBC Air Cargo Incorporated, driven by defendant Jaime Tano, Jr., was
coming from the opposite direction on its way to the Bislig Airport. On board were
"2.
The Court of Appeals erred in not finding that the proximate cause of the accident was
passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated
the victim's negligence in the driving of his motorcycle in a very fast speed and thus hitting
the petitioner's cargo van."2 "That Rogelio Monterola was running fast despite poor visibility as evidenced by
the magnitude of the damage to the vehicles is no defense. His negligence would
The issues raised are thus essentially factual. The intrinsic merit of, as well as at most be contributory (Article 2179, N.C.C.). Having negligently created the
cogency in, the detailed analyses made by the Court of Appeals in arriving at its condition of danger, defendants may not avoid liability by pointing to the
findings is at once apparent. Said the appellate court: negligence of the former.

"That visibility was poor when Jaime Tano made a left turn was admitted by the "x x x xxx x x x.
latter.
"Q When these two vehicles passed by your parked vehicle, as you said, there were clouds of dust, did I get you right?
"A Yes sir, the road was dusty. "Tano's proven negligence created a presumption of negligence on the part of his
"Q So much so that you could no longer see the vehicles from the opposite direction following these vehicles? employer, the LBC Air Cargo Corporation, in supervising its employees properly
"A It is not clear, sir, so I even turned on my left signal and the headlight.
"Q What do you mean by it was not clear, you could not see the incoming vehicles? and adequately (Phoenix Construction, Inc. vs. Intermediate Appellate Court,
"A I could not see because of the cloud of dust. supra), which may only be destroyed by proof of due diligence in the selection and
"Q And it was at this juncture, when you were to follow your theory, when you started your LBC van again and swerved
to the left leading to the Bislig airport? supervision of his employees to prevent the damage (Article 2180, N.C.C.). No
"A I did not enter immediately the airport, I waited the dust to clear a little before I drove. such defense was interposed by defendants in their answer.
"x x x xxx xxx
"Q In other words when you said that it was slightly clear, you would like to tell the Honorable Court that you could
only clearly see big vehicles x x x but not small vehicles like a motorcycle?
"A I could see clearly big vehicles but not small vehicles like a motorcycle.
"We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy
"Q Like the motorcycle of Rogelio Monterola? Branch Office, there being no employer-employee relationship between him and
"A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 26-30) (p. 15, Appellant's brief).
Jaime Tano who is a driver of the LBC Air Cargo, Inc. It was held in Philippine
Rabbit Bus Lines, Inc., et al. vs. Phil. American Forwarders, Inc., 63 SCRA 231,
'Tano should not have made a left turn under the conditions admitted by him. that the term 'Manager' in Article 2180 is used in the sense of 'employer.' Hence,
Under the Land Transportation and Traffic Code, the driver of any vehicle upon a no tortuous or quasi-delictual liability can be fastened on Fernando Yu as branch
highway, before starting, stopping or turning from a direct line, is called upon to manager of LBC Air Cargo, Inc.
first see that such movement can be made in safety, and whenever the operation
of any other vehicle approaching may be affected by such movement, shall give a "Now for the amount of damages. Aside from the indemnity for death which has
signal plainly visible to the driver of such other vehicles of the intention to make been pegged at P50,000.00 (Resolution En Banc, August 30, 1990, cited in People
such movement (Sec. 44, R.A. 4136, as amended). This means that before a driver vs. Sazon, 189 SCRA 700), the evidence disclose that as a result of the accident,
turns from a direct line, in this case to the left, the driver must first see to it that Rogelio Monterola's motorcycle was damaged, the repair cost of which amounted
there are no approaching vehicles and, if there are, to make the turn only if it can to P7,361.00 (Exh. E1), for the hospitalization, wake and burial expenses, plaintiff
be made in safety, or at the very least give a signal that is plainly visible to the spent P15,000.00. There is likewise no question that by reason of Rogelio
driver of such other vehicle. Tano did neither in this case, for he recklessly made Monterola's untimely death, his only child 14 years old Sherwin Monterola,
a left turn even as visibility was still very poor, and thus failed to see the suffered mental anguish, fright, serious anxiety, wounded feelings and moral
approaching motorcycle and warn the latter of his intention to make a left turn. shock that entitles him to moral damages which we hereby fix at P20,000.00.
This is plain and simple negligence. Because of defendants' refusal to indemnify the plaintiff for his father's death, the
latter was compelled to litigate and engage the services of counsel. He is therefore
"In thus making the left turn, he placed his vehicle directly at the path of the entitled to an additional amount of P10,000.00 for attorney's fees and expenses of
motorcycle which, unaware of Tano's intention to make a left turn, smashed at litigation.
Tano's vehicle. It was Tano's negligence that created the risk or the condition of
danger that set into operation the event that led to the smashedup and untimely "Considering, however, the contributory negligence of Rogelio Monterola in
death of Rogelio Monterola. driving at a fast clip despite the fact that the road was dusty, we reduce the
aggregate amount of damages to which the plaintiff is entitled by twenty per cent
"Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in (Phoenix Construction, Inc. vs. Intermediate Appellate Court, Supra)."3
operating it, not recklessly turned left when visibility was still poor, and instead
observed the directive of the Land Transportation Code that before doing so, he From every indication, the proximate cause of the accident was the negligence of
should first see to it that such movement can be made in safety, and that Tano who, despite extremely poor visibility, hastily executed a left turn (towards
whenever any other vehicle approaching may be affected by such movement, the Bislig airport road entrance) without first waiting for the dust to settle. It was
should give a signal plainly visible to the driver of such other vehicle of the this negligent act of Tano, which had placed his vehicle (LBC van) directly on the
intention to make such movement. path of the motorcycle coming from the opposite direction, that almost
instantaneously caused the collision to occur. Simple prudence required him not
to attempt to cross the other lane until after it would have been safe from and
clear of any oncoming vehicle.

Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at
times, as "supervening negligence" or as "discovered peril"). The doctrine, in
essence, is to the effect 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 (see Picart vs.
Smith, 37 Phil. 809). Stated differently, the rule would also mean that an
antecedent negligence of a person does not preclude the recovery of damages for
the supervening negligence of, or bar a defense against liability sought by,
another if the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence (Pantranco North Express, Inc.
vs. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs. Intermediate
Appellate Court, 173 SCRA 464).

In the case at bench, the victim was traveling along the lane where he was rightly
supposed to be. The incident occurred in an instant. No appreciable time had
elapsed, from the moment Tano swerved to his left to the actual impact, that
could have afforded the victim a last clear opportunity to avoid the collision.

It is true, however, that the deceased was not all that free from negligence in
evidently speeding too closely behind the vehicle he was following. We, therefore,
agree with the appellate court that there indeed was contributory negligence on
the victim's part that could warrant a mitigation of petitioners' liability for
damages.

WHEREFORE, the appealed decision is AFFIRMED. Costs against


petitioners.

SO ORDERED.

Feliciano (Chairman), Romero, Melo and Francisco, JJ., concur.

Judgment affirmed.

Note.—View that the law imposes the duty on the doer to take precaution
against its mischievous results and the failure to do so constitutes negligence. (St.
Francis High School vs. Court of Appeals, 194 SCRA 341 [1991])
agency. Suffice it to say, however, that in an action premised on the employee’s
negligence, whereby respondent Pagsibigan seeks recovery for the resulting
damages from both PAL and Espiritu without qualification, what is sought to be
imposed is the direct and primary liability of PAL as an employer under said
Article 2180.

Same; Same; Same; Same; Same.—PAL’s main defense is that it is only an agent.
G.R. No. 45985. May 18, 1990.*
As a general proposition, an agent who duly acts as such is not personally liable
to third persons. However, there are admitted exceptions, as in this case where
CHINA AIR LINES, LTD., petitioner, vs. COURT OF APPEALS, JOSE the agent is being sued for damages arising from a tort committed by his
PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, employee.
respondents.
Same; Same; Employer must rebut presumption of negligence of its employee.—
G.R. No. 46036. May 18, 1990.* Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan
under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners, vs. presumption of negligence in the selection and supervision of its employee, it is
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., also primarily liable under Article 2180 of the same code which explicitly provides
respondents. that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
Actions; Torts; Contracts; Common Carriers; An airline passenger cannot file an
action for quasi-delict and then change his theory to breach of contract.—It,
therefore, becomes evident that respondent Pagsibigan, having sensed that he can Same; Amount of damages may be reduced to reasonable level.—WHEREFORE,
not hold CAL liable on a quasidelict, decided on appeal to instead make a sinistral the decision of respondent Court of Appeals is MODIFIED accordingly. China Air
detour, so to speak, by claiming that his action against CAL is based on a breach Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and
of contract of carriage. We can not permit respondent Pagsibigan to change his Roberto Espiritu are declared jointly and severally liable to pay the sum of
theory at this stage; it would be unfair to the adverse party who would have no P10,000.00 by way of nominal damages, without prejudice to the right of
more opportunity to present further evidence, material to the new theory, which Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of the
it could have done had it been aware earlier of the new theory at the time of the damages that it may pay respondent Jose Pagsibigan.
PETITIONS to review the decision of the Court of Appeals.
hearing before the trial court. The facts are stated in the opinion of the Court.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in
G.R. No. 46036.
Same; Same; Same; Same; Airline cannot be held liable for negligence of employee Syquia Law Offices for Jose Pagsibigan .
of its ticketing agent (another airline).—There is indeed no basis whatsoever to
hold CAL liable on a quasi-delict or culpa aquiliana. As hereinbefore stated, the
court a quo absolved CAL of any liability for fault or negligence. This finding was REGALADO, J.:
shared by respondent court when it concluded that defendant CAL did not
contribute to the negligence committed by therein defendants-appellants PAL and These consolidated petitions seek the review of the decision of respondent court in
Roberto Espiritu. Respondent Pagsibigan insists that CAL was barred from CA-G.R. No. 53023-R entitled “Jose E. Pagsibigan, Plaintiff-Appellant, vs.
proving that it observed due diligence in the selection and supervision of its Philippine Air Lines, Inc. and Roberto Espiritu, Defendants-Appellants; China
employees. This argument is obviously misplaced. CAL is not the employer of Air Lines, Ltd., Defendant-Appellee,”1 the dispositive portion of which declares:
PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., we have stressed
the need of first establishing the existence of an employer-employee relationship “WHEREFORE, except for a modification of the judgment in the sense that the award of
before an employer may be vicariously liable under Article 2180 of the Civil Code. P20,000.00 in favor of the plaintiff shall be in the concept of nominal damages instead of
exemplary damages, and that defendant China Air Lines, Ltd. shall likewise be liable with
its two co-defendants in a joint and solidary capacity, the judgment appealed from is hereby
Same; Same; Same; Same; Agency; As employer, PAL is liable for negligence of its affirmed in all other respects, without costs.”2
employee even if PAL was acting as ticketing agent of CAL.—With respect to PAL
and Espiritu, they disclaim any liability on the theory that the former is merely
an agent of CAL and that the suit should have been directed against CAL alone. The challenged decision of respondent court contains a synthesis of the facts that
There is no question that the contractual relation between both air lines is one of spawned these cases and the judgment of the court a quo which it affirmed with
modifications, thus: claim against CAL for attorney’s fees and for reimbursement of whatever amount
the court may adjudge PAL to be liable to the plaintiff. Defendant Espiritu
“On June 4, 1968, plaintiff Jose E. Pagsibigan, then vice-president and general manager of adopted the defenses of his co-defendant PAL.
Rentokil (Phils.) Inc., a local firm dealing in insecticides, pesticides and related services
appurtenant thereto, purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight “Defendant China Air Lines, for its part, disclaims liability for the negligence and
from the Transaire Travel Agency. The said agency, through its Cecille Baron, contacted the
incompetence of the employees of PAL. It avers that it had revised its schedule
Manila Hotel branch of defendant Philippine Air Lines which at that time was a sales and
ticketing agent of defendant China Air Lines. On June 6, 1968, PAL, through its ticketing since April 1, 1968, the same to be effective on April 20, 1968, and the said
clerk defendant Roberto Espiritu, cut and issued CAL Ticket No. 017991 for a Manila- revised schedule was adopted only after proper petition with and approval of the
Taipei-Hongkong-Manila flight. According to the plane ticket, the plaintiff was booked on Civil Aeronautics Board of which all airlines, including defendant PAL, were
CAL CI Flight No. 812 to depart from Manila for Taipei on June 10, 1968 at 1720 hours notified; that both printed copies of the international timetable and of the
(5:20 p.m.), Exhibit A. mimeographed notices of the official schedule and flight departure schedules were
distributed to all its sales agents, including PAL; that after the effectivity of the
“On June 10, 1968, one hour before the scheduled time of the flight as stated in new time schedules, PAL’s Manila Hotel office had been issuing and selling
his ticket, the plaintiff arrived at the airport to check in for CI Flight No. 812. tickets based on the revised time schedule; and that, assuming that the plaintiff
Upon arriving at the airport, the plaintiff was informed that the plane he was is entitled to recover damages, the liability is on PAL and not on CAL. A cross-
supposed to take for Taipei had left at 10:20 in the morning of that day. The PAL claim was likewise asserted by CAL against its co-defendant PAL.
employees at the airport made appropriate arrangements for the plaintiff to take
PAL’s flight to Taipei the following day, June 11, 1968. The plaintiff took said “After due trial, the Court a quo rendered judgment laying the blame for the
flight and arrived in Taipei around noontime of the said date. erroneous entry in the ticket as to the time of departure to defendant Roberto
Espiritu, ticketing agent of defendant PAL, and that no employee of CAL
“On July 8, 1968, the plaintiff, through counsel, made formal demand on contributed to such erroneous entry. It was further ruled that the plaintiff had no
defendant PAL for moral damages in not less than P125,000.00 for what the reason to claim moral damages but may be entitled to recover exemplary
plaintiff allegedly suffered as a result of his failure to take the flight as stated in damages. The dispositive portion of the decision makes the following adjudication:
his plane ticket. (Exhibit E) After a series of negotiations among the plaintiff,
PAL and CAL failed to reach an amicable settlement, the plaintiff instituted this ‘WHEREFORE, premises considered, judgment is hereby rendered sentencing the
action in the Court of First Instance of Rizal on September 22, 1969. In his defendants Philippine Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff Jose
complaint, plaintiff prays for the recovery of P125,000.00 as moral damages and Pagsibigan jointly and severally, by way of exemplary damages, the sum of Twenty
P25,000.00 for and as attorney’s fees. The moral damages allegedly arose from the Thousand Pesos (P20,000.00) plus Two Thousand Pesos (P2,000.00) as reimbursement for
gross negligence of defendant Roberto Espiritu in stating on the plane ticket that attorney’s fees and the costs.
the time of departure was 1720 hours, instead of 1020 hours which was the
correct time of departure in the revised summer schedule of CAL. Plaintiff claims ‘The complaint is dismissed with respect to the defendant China Air Lines, Ltd. The cross-
that by reason of his failure to take the plane, he suffered besmirched reputation, claim filed by defendant PAL and Espiritu against defendant CAL as well as the cross-claim
embarrassment, mental anguish, wounded feelings and sleepless nights, filed by the defendant CAL against defendant PAL and Espiritu are also hereby dismissed.’
”3
inasmuch as when he went to the airport, he was accompanied by his business
associates, close friends and relatives. He further averred that his trip to Taipei
was for the purpose of conferring with a certain Peng Siong Lim, president of the From said decision of the court below, all the parties, except China Air Lines, Ltd.
Union Taiwan Chemical Corporation, scheduled at 9:00 a.m. on June 11, 1968. appealed to respondent court which, however, sustained the ruling of the trial
court denying Pagsibigan’s claim for moral damages. It concluded that Roberto
Espiritu did not act with malice or in bad faith in making a wrong entry of the
“Defendant Philippine Air Lines alleges in its answer that the departure time
time of departure on the ticket, and that the mistake committed by Espiritu
indicated by Espiritu in the ticket was furnished and confirmed by the
appears to be an honest one done in good faith.
reservation office of defendant China Air Lines. It further avers that CAL had not
informed PAL’s Manila Hotel Branch of the revised schedule of its flight, nor
provided it with revised timetable; that when the travel agency sought to Respondent court also ruled out the claim for exemplary damages for lack of legal
purchase the ticket for the plaintiff on CAL CI Flight No. 812 for June 10, 1968, basis. Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal
Espiritu who was then the ticketing clerk on duty, checked with the reservation damages, under Article 2221 of the Civil Code, for the vindication of a legal wrong
office of CAL on the availability of space, the date and the time of said flight; that committed against him.
CAL’s Dory Chan informed Espiritu that the departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the afternoon of said date. PAL asserted a cross- As regards the liability of the parties, respondent court held:
“There can be little question as to the liability of PAL and Espiritu for the damage caused to 2.
Dismissal of the cross-claim of petitioner against the private respondents Philippine Air
the plaintiff due to the erroneous entry in the plane ticket made by the latter. They seek to Lines, Inc. and Roberto Espiritu will not prevent the release of the petitioner from liability
justify the erroneous statement as to the time of departure on the ground that such was the to the private respondent Pagsibigan.
time given by Dory Chan to Espiritu when the latter called up for the reservation in favor of
plaintiff. Aside from the fact that Dory Chan had vigorously disclaimed having given such
3.
The award of damages was unwarranted both legally and factually.5
information to Espiritu, We are convinced that, as the trial court had found, CAL had no
share in the error committed by Espiritu in indicating the time of departure of Flight No.
812. PAL had shown through the testimony of Carmen Ibazeta Gallaga, ticket On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu
representative of PAL at the Manila Hotel Office, that they received circulars and made the following submissions in G.R. No. L-46036, to wit:
timetables of airlines in the PAL main office. It further appears that on two occasions,
defendant PAL cut and issued tickets for CAL based on the new schedule even before June
10, 1968. As a matter of fact, the other entries of time departures in the ticket issued to the 1.
The respondent Court of Appeals erred in not holding that respondent China Air Lines,
plaintiff are in accordance with the revised schedule, and that the only error therein was Ltd., being the principal, is solely liable to respondent Pagsibigan.
with respect to the departure from Manila on June 10, 1968.
2.
The respondent Court of Appeals erred in awarding respondent Pagsibigan the sum of
“However, in proving that the fault lied with Espiritu, defendant CAL derives no solace nor P20,000.00 as nominal damages.6
gains an advantage. It may not claim exemption from liability by reason thereof. Espiritu
was an employee of PAL and whatever negligence was committed by him is attributable to In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that
PAL. It is an admitted fact that PAL is an authorized agent of CAL. In this relationship, the CAL’s liability is based on breach of contract of transportation which was the
responsibility of defendant PAL for the tortious act of its agent or representative is
proximate result of the negligence and/or error committed by PAL and Espiritu;
inescapable. x x x
that even assuming that CAL has no share in the negligence of PAL and Espiritu,
the liability of CAL does not cease upon proof that it exercised all the diligence of
xxx a good father of a family in the selection and supervision of its employees.
Traversing such contentions, CAL argues that it can not be made liable under
“A similar principle is recognized in our Civil Code in its Art. 2180 x x x. Unlike in the Article 2180 of the Civil Code because of the absence of employer-employee
doctrine of respondeat superior, however, the Civil Code permits the employer to escape this relationship between it and PAL.
liability upon proof of having observed all the diligence of a good father of a family to
prevent the damage. We find the evidence of defendant CAL to be insufficient to overcome the
presumption of negligence on its part for the act done by defendant Roberto Espiritu. (Italics On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL
supplied) is liable under Article 1909 of the said code which holds an agent responsible not
only for fraud but also for negligence which shall be judged with more or less rigor
“The liability for the damage sustained by the plaintiff should, therefore, be borne by all of by the courts, according to whether the agency was or was not for a compensation.
the defendants in a joint and solidary capacity (Art. 2194). The liability of an employer PAL, however, maintains that for lack of privity with Pagsibigan, the suit for
under Art. 2180 is primary and direct. x x x breach of contract should have been directed against CAL.

xxx What surfaces as a procedural maneuver taken by respondent Pagsibigan in the


course of the proceedings in these cases has confused the real issues in the
“It appearing that defendant CAL, as employer or principal, did not contribute to the controversy subject of both petitions before us.
negligence committed by defendants PAL and Roberto Espiritu, its liability to the plaintiff
could be passed on to said defendants. Defendant CAL, however, did not take an appeal and Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the
did not, therefore, take exception to the dismissal of its cross-claim against defendants PAL
same time, that is, to enforce the civil liability of CAL for breach of contract and,
and Espiritu. This serves as an obstacle for a rendition of judgment favorable to CAL on its
said counterclaim.”4 likewise, to recover from PAL and Espiritu for tort or culpa aquiliana. What he
has overlooked is the proscription against double recovery under Article 2177 of
the Civil Code which, while not preventing recourse to any appropriate remedy,
In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air
prevents double relief for a single wrong.
Lines, Ltd. (CAL) relied on the following grounds:

To avoid inequitable effects under such confluence of remedies, the true nature of
1.
A principal can not be held liable, much less solidarily, for the negligence of the sub-
agent, where the former never participated in, ratified or authorized the latter’s act or
the action instituted by respondent Pagsibigan must be determined. A careful
omission. perusal of the complaint of respondent Pagsibigan will readily disclose that the
allegations thereof clearly and unmistakably make out a case for a quasi-delict in
this wise:
“4. That at all pertinent times particularly in June of 1968, defendant China Air Lines Ltd. It, therefore, becomes evident that respondent Pagsibigan, having sensed that he
has been operating regular scheduled flights to and from Manila, and has offered can not hold CAL liable on a quasi-delict, decided on appeal to instead make a
accommodations thereon through, among others, defendant PAL as its authorized sales sinistral detour, so to speak, by claiming that his action against CAL is based on a
agent and/or ticketing agent, such that China Airlines Ltd. is here impleaded as being the
breach of contract of carriage.
principal of defendant PAL;

“5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu has We can not permit respondent Pagsibigan to change his theory at this stage; it
been in the employ of defendant PAL at its sales counter at the PAL Manila Hotel branch would be unfair to the adverse party who would have no more opportunity to
office and is here impleaded as defendant as being the proximate malfeasor in this cause of present further evidence, material to the new theory, which it could have done
action; had it been aware earlier of the new theory at the time of the hearing before the
trial court.10
“12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968, as
set forth in his ticket (Annex ‘A’) solely and exclusively by reason of gross incompetence and There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa
inexcusable negligence amounting to bad faith of defendant PAL—acting, through its sales aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability
representative, the defendant Roberto Espiritu, of its Manila Hotel branch office—in the
for fault or negligence. This finding was shared by respondent court when it
discharge of its duties as sales agent and/or ticketing agent for defendant China Airlines
Ltd. as principal. concluded that defendant CAL did not contribute to the negligence committed by
therein defendants-appellants PAL and Roberto Espiritu.
“13. That as a direct result of culpable incompetence and negligence of defendant Roberto
Espiritu as sales representative of defendant PAL, plaintiff was unable to attend to Respondent Pagsibigan insists that CAL was barred from proving that it observed
previously scheduled business commitments in Taipei x x x resulting in direct and indirect due diligence in the selection and supervision of its employees. This argument is
prejudice to plaintiff that has yet to be fully assessed;” (Italics supplied)7 obviously misplaced. CAL is not the employer of PAL or Espiritu. In Duavit vs.
The Hon. Court of Appeals, et al.,11 we have stressed the need of first establishing
Had the intention of respondent Pagsibigan been to maintain an action based on the existence of an employer-employee relationship before an employer may be
breach of contract of carriage, he could have sued CAL alone considering that vicariously liable under Article 2180 of the Civil Code.
PAL is not a real party to the contract. Moreover, in cases of such nature, the
aggrieved party does not have to prove that the common carrier was at fault or With respect to PAL and Espiritu, they disclaim any liability on the theory that
was negligent. All he has to prove is the existence of the contract and the fact of the former is merely an agent of CAL and that the suit should have been directed
its non-performance by the carrier.8 against CAL alone. There is no question that the contractual relation between
both air lines is one of agency. Suffice it to say, however, that in an action
The records disclose that the trial court delved much into the issues of who was at premised on the employee’s negligence, whereby respondent Pagsibigan seeks
fault, and its decision is primarily anchored on its factual findings regarding the recovery for the resulting damages from both PAL and Espiritu without
civil liability arising from culpa aquiliana of the erring party, to this effect: qualification, what is sought to be imposed is the direct and primary liability of
PAL as an employer under said Article 2180.
“Plaintiff said that the erroneous entry in his ticket which made it appear that his
CAL flight of June 10, 1968 was to be at 5:20 in the afternoon was due to the fault When an injury is caused by the negligence of an employee, there instantly arises
or negligence of PAL’s Roberto Espiritu, a co-defendant herein, as well as the a presumption of law that there was negligence on the part of the employer either
employees of the defendant CAL. In making CAL co-responsible, plaintiff appears in the selection of the employee or in the supervision over him after such
to rely on the doctrine that the principal is responsible for the act of an agent selection. The presumption, however, may be rebutted by a clear showing on the
done within the scope of the agency. part of the employer that it has exercised the care and diligence of a good father of
a family in the selection and supervision of his employee.12
“There is no proof extant that any of the employees of CAL had contributed to the
erroneous entry in plaintiff’s CAL ticket for Taipei which placed his time of Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is
departure to 5:20 o’clock in the afternoon of June 10, 1968. Only defendant imperative that PAL must adduce sufficient proof that it exercised such degree of
Roberto Espiritu appears to be solely and exclusively responsible for such error care. PAL failed to overcome the presumption. As found by respondent court, CAL
and therefor the conclusion becomes inevitable that CAL must be absolved from had revised its schedule of flights since April 1, 1968; that after the Civil
any blame because defendant Roberto Espiritu who committed the error is not an Aeronautics Board had approved the revised schedule of flights, PAL was duly
employee or agent of the defendant CAL.”9 informed thereof and, in fact, PAL’s Manila Hotel branch office had been issuing
and selling tickets based on the revised time schedule before June 10, 1968.
PAL’s main defense is that it is only an agent. As a general proposition, an agent Notes.—The actual owner of a passenger jeep is solidarily liable with the
who duly acts as such is not personally liable to third persons. However, there are registered owner in a civil action on quasi-delict. (Jereos vs. Court of Appeals, 117
admitted exceptions, as in this case where the agent is being sued for damages SCRA 395.)
arising from a tort committed by his employee.
The liability of the employer under Art. 2180 of the new Civil Code is direct
The respondent court found that the mistake committed by Espiritu was done in and immediate and not conditioned on a prior showing of negligence of the
good faith. While there is no evidence that he acted with malice, we can not employer. (Kapalaran Bus Line vs. Coronado, 176 SCRA 792.)
entirely condone his actuations. As an employee of PAL, the nature of his
functions requires him to observe for the protection of the interests of another ———o0o———
person that degree of care, precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of duty.
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan


under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal
presumption of negligence in the selection and supervision of its employee, it is
also primarily liable under Article 2180 of the same code which explicitly provides
that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

Under the aforesaid provision, all that is required is that the employee, by his
negligence, committed a quasi-delict which caused damage to another, and this
suffices to hold the employer primarily and solidarily responsible for the tortious
act of the employee. PAL, however, can demand from Espiritu reimbursement of
the amount which it will have to pay the offended party’s claim.13

On the issue of damages, we agree, except as to the amount, that nominal


damages may be awarded to respondent Pagsibigan to vindicate the legal wrong
committed against him. It appearing that the wrong committed was immediately
rectified when PAL promptly booked him for the next morning’s flight to Taipei
where he arrived before noon of June 11, 1968 and was able to attend his
scheduled conference, and considering the concept and purpose of nominal
damages, the award of P20,000.00 must accordingly be reduced to an amount
equal or at least commensurate to the injury sustained.

WHEREFORE, the decision of respondent Court of Appeals is MODIFIED


accordingly. China Air Lines, Ltd. is hereby absolved from liability. Philippine Air
Lines, Inc. and Roberto Espiritu are declared jointly and severally liable to pay
the sum of P10,000.00 by way of nominal damages, without prejudice to the right
of Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of
the damages that it may pay respondent Jose Pagsibigan.

SO ORDERED.

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

Decision modified.
various personal articles valued at P48,950, namely a necklace with a diamond
pendant, a GP watch, a pair of Christian Dior eyeglasses, a gold Cross pen and a
pair of Bally shoes. Vitug also suffered injuries producing recurring pains in his
neck and back. Upon his physician's advice, he received further medical
treatment in the United States which cost him US$2,373.64 for his first trip, and
G.R. No. 91378. June 9, 1992.*
US$5,596.64 for the second.

FIRST MALAYAN LEASING AND FINANCE CORPORATION, petitioner, vs. At the time of the accident on December 14, 1983, the Isuzu cargo truck was
THE HON. COURT OF APPEALS, CRISOSTOMO B. VITUG and ESTATE OF registered in the name of the First Malayan Leasing and Finance Corporation
VICENTE TRINIDAD, Represented by Widow GLORIA D. TRINIDAD, (FMLFC).
respondents.

However, FMLFC denied any liability, alleging that it was not the owner of the
Damages; Common Carriers; Registered vehicle owner liable to third persons for
truck, neither the employer of the driver Crispin Sicat, because it had sold the
damages, regardless of who actual owner is.—This Court has consistently ruled truck to Vicente Trinidad on September 24,1980, after the latter had paid all his
that regardless of who the actual owner of a motor vehicle might be, the monthly amortizations under the financing lease agreement between FMLFC and
registered owner is the operator of the same with respect to the public and third Trinidad.
persons, and as such, directly and primarily responsible for the consequences of
its operation. In contemplation of law, the owner/operator of record is the
employer of the driver, the actual operator and employer being considered merely On FMLFC's motion, the lower court granted FMLFC's leave to file a third-party
as his agent (MYC-Agro-Industrial Corporation vs. Vda. de Caldo, 132 SCRA 10, complaint against Trinidad and admitted the third-party complaint filed
citing Vargas vs. Langcay, 6 SCRA 174; Tamayo vs. Aguino, 105 Phil. 949). therewith.
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
GRIÑO-AQUINO, J.: Answering the third-party complaint, the Estate of Vicente Trinidad admitted
that the truck was operated by the deceased during his lifetime. Nevertheless, it
This case brings to the fore the importance of motor vehicle registration in raised the defense that the estate of Vicente Trinidad was no longer existing
determining who should be liable for the death or injuries suffered by passengers because the same had long been settled and partitioned extrajudicially by his
or third persons as a consequence of the operation of a motor vehicle. heirs.

On June 26, 1984, Crisostomo B. Vitug filed Civil Case No. 84-25186 in the On August 25, 1986, the trial court rendered a decision sentencing FMLFC to pay
Regional Trial Court of Manila, Branch XLIII, against the defendant. First Vitug the sum of P 133,950 with interest at the legal rate from the filing of the
Malayan Leasing and Finance Corporation (FMLFC for short), to recover complaint until fully paid, plus the sum of P10,000 as attorneys fees and costs.
damages for physical injuries, loss of personal effects, and the wreck of his car as
a result of a three-vehicle collision on December 14, 1983, involving his car, FMLFC appealed in due time to the Court of Appeals which rendered a decision
another car, and an Isuzu cargo truck registered in the name of FMLFC and on November 27, 1989 modifying the appealed judgment by ordering the third-
driven by one Crispin Sicat. party defendant-appellee (Estate of Vicente Trinidad) to indemnify the appellant,
FMLFC, for whatever amount the latter may pay Vitug under the judgment. In
The evidence shows that while Vitug's car was at a full stop at the intersection of all other respects, the trial court's decision was affirmed.
New York Street and Epifanio delos Santos Avenue (EDSA) in Cubao, Quezon
City, northwardbound, the on-coming Isuzu cargo truck bumped a Ford Granada FMLFC has filed this petition for review on certiorari praying that the decision of
car behind him with such force that the Ford car was thrown on top of Vitug's car the appellate court be reversed and set aside.
crushing its roof. The cargo truck thereafter struck Vitug's car in the rear causing
the gas tank to explode and setting the car ablaze. On February 14, 1990, the Court dismissed the petition for insufficiency in form
and substance, having failed to comply with the Rules of Court and Circular 1-88
Stunned by the impact, Vitug was fortunately extricated from his car by solicitous requiring the submission of: (1) proof of service of the petition on the adverse
bystanders before the vehicle exploded. However, two of his passengers were party, and (2) a certified true copy of the decision of the Court of Appeals.
burned to death. Vitug's car, valued at P70,000, was a total loss. Moreover, the petition was filed late on February 1, 1990, the due date being
January 27, 1990.
When he regained consciousness in the hospital, Vitug discovered that he had lost
The petitioner filed a motion for reconsideration. On April 16, 1990, we granted In order for a transfer of ownership of a motor vehicle to be valid against third
the same and reinstated the petition, Without giving it due date course, we persons, it must be recorded in the Land Transportation Office. For, although
required the respondents to comment. valid between the parties, the sale cannot affect third persons who rely on the
public registration of the motor vehicle as conclusive evidence of ownership. In
After deliberating on the petition, the comments of the private respondents, and law, FMLFC was the owner and operator of the Isuzu cargo truck, hence, fully
the petitioner's reply thereto, we find the petition to be bereft of merit, hence, liable to third parties injured by its operation due to the fault or negligence of the
resolved to deny it. driver thereof.

In the first place, the factual finding of the trial court and the Court of Appeals WHEREFORE, the petition for review is DENIED for lack of merit. Costs
that the Isuzu vehicle which figured in the mishap was still registered in the against the petitioner.
name of FMLFC at the time of the accident, is not reviewable by this Court in a
petition for certiorari under Rule 45 of Rules of Court. SO ORDERED.

This Court has consistently ruled that regardless of who the actual owner of a Cruz (Chairman), Medialdea and Bellosillo, JJ., concur.
motor vehicle might be, the registered owner is the operator of the same with
respect to the public and third persons, and as such, directly and primarily Petition denied.
responsible for the consequences of its operation. In contemplation of law, the
owner/operator of record is the employer of the driver, the actual operator and
employer being considered merely as his agent (MYC-Agro-Industrial Corporation Note.—The registered owner or operator of record is the one liable for
damages caused by a vehicle regardless of any alleged sale or lease made thereon
vs. Vda. de Caldo, 132 SCRA 10, citing Vargas vs. Langcay, 6 SCRA 174; Tamayo
vs. Aguino, 105 Phil. 949). (MYC Agro-Industrial Corporation vs. Vda. de Caldo, 132 SCRA 10).

"We believe that it is immaterial whether or not the driver was actually employed
by the operator of record. It is even not necessary to prove who the actual owner
of the vehicle and the employer of the driver is. Granting that, in this case, the
father of the driver is the actual owner and that he is the actual employer,
following the wellsettled principle that the operator of record continues to be the
operator of the vehicle in contemplation of law, as regards the public and third
persons, and as such is responsible for the consequences incident to its operation,
we must hold and consider such owner-operator of record as the employer, in
contemplation of law, of the driver. And, to give effect to this policy of law as
enunciated in the above cited decisions of this Court, we must now extend the
same and consider the actual operator and employer as the agent of the operator
of record." (Vargas vs. Langcay, 6 SCRA 178; citing Montoya vs. Ignacio, G.R. No.
L-5868, Dec. 29, 1953; Timbol vs. Osias, G.R. No. L-7547, April 30, 1955; Vda. de
Medina vs. Cresencia, G.R. No. L-8194, July 11, 1956; Necesito vs. Paras, G.R.
No. L-10605, June 30, 1955.)

"x x x Were the registered owner allowed to evade responsibility by proving who
the supposed transferee or owner is, it would be easy for him by collusion with
others or otherwise, to escape said responsibility and transfer the same to an
indefinite person, or to one who possesses no property with which to respond
financially for the damage or injury done," (Erezo vs. Jepte, 102 Phil. 103.)

"x x x The registered owner or operator of record is the one liable for damages
caused by a vehicle regardless of any alleged sale or lease made thereon." (MYC-
Agro-Industrial Corp. vs. Vda. de Caldo, 132 SCRA 11.)
Commission and in contemplation of law the grantee continues to be responsible
under the franchise in relation to the Commission and to the Public.

Same; Same; Same; Same; Registered owner has the right to be indemnified for the
No. L-30212. September 30, 1987.* amount he may be required to pay as damages for the injury caused to a third
person, since the lease contract although not effective against the public is valid
and binding between the contracting parties.—Bienvenido Gelisan, the registered
BIENVENIDO GELISAN, petitioner, vs. BENITO ALDAY, respondent.
owner, is not however without recourse. He has a right to be indemnified by
Roberto Espiritu for the amount that he may be required to pay as damages for
Civil Law; Transportation; Motor Vehicles; Damages; A registered owner of a the injury caused to Benito Alday, since the lease contract in question, although
public service vehicle is responsible for damages that may arise from consequences not effective against the public for not having been approved by the Public Service
incident to its operation or that may be caused to any of the passengers therein— Commission, is valid and binding between the contracting parties.
The Court has invariably held in several decisions that the registered owner of a
public service vehicle is responsible for damages that may arise from Same; Same; Same; Same; Registered owner/operator of a public service vehicle, is
consequences incident to its operation or that may be caused to any of the jointly and severally liable with the driver for damages incurred by passengers or
passengers therein. third persons as a consequence of injuries sustained in the operation of said
vehicle.—We also find no merit in the petitioner's contention that his liability is
Same; Same; Same; Same; Franchise; If the properties covered by a franchise is only subsidiary. The Court has consistently considered the registered
transferred or leased to another without the requisite approval of the Public owner/operator of a public service vehicle to be jointly and severally liable with
Service Commission, the transfer is not binding upon the public and third the driver for damages incurred by passengers or third persons as a consequence
persons.—The claim of the petitioner that he is not liable in view of the lease of injuries sustained in the operation of said vehicles.
contract executed by and between him and Roberto Espiritu which exempts him
from liability to third persons, cannot be sustained because it appears that the PETITION for certiorari to review the judgment of the Court of Appeals.
lease contract, adverted to, had not been approved by the Public Service
Commission. It is settled in our jurisprudence that if the property covered by a
franchise is transferred or leased to another without obtaining the requisite The facts are stated in the opinion of the Court.
approval, the transfer is not binding upon the public and third persons.
PADILLA, J.:
Same; Same; Same; Same; Same; Same; Rationale for the rule.—We also find no
merit in the petitioner's argument that the rule requiring the previous approval Review on certiorari of the judgment** rendered by the Court of Appeals, dated 11
by the Public Service Commission of the transfer or lease of the motor vehicle, October 1968, as amended by its resolution, dated 11 February 1969, in CA-G.R.
may be applied only in cases where there is no positive identification of the owner No, 32670-R, entitled: "Benito Alday, plaintiff-appellant, vs, Roberto Espiritu and
or driver, or where there are very scant means of identification, but not in those Bienvenido Gelisan, defendants-appellees," which ordered the herein petitioner
instances where the person responsible for damages has been fixed or determined Bienvenido Gelisan to pay, jointly and severally, with Roberto Espiritu, the
beforehand, as in the case at bar. The reason for the rule we reiterate in the respondent Benito Alday the amount of P5,397.30, with. legal interest thereon
present case, was explained by the Court in Montoya vs. Ignacio, thus: The law from the filing of the complaint, and the costs of suit; and for the said Roberto
really requires the approval of the Public Service Commission in order that a Espiritu to pay or refund the petitioner Bienvenido Gelisan whatever amount the
franchise, or any privilege pertaining thereto, may be sold or leased without latter may have paid to the respondent Benito Alday by virtue of the judgment.
infringing the certificate issued to the grantee. The reason is obvious. Since a
franchise is personal in nature any transfer or lease thereof should be notified to The uncontroverted facts of the case are, as follows:
the Public Service Commission so that the latter may take proper safeguards to
protect the interest of the public. In fact, the law requires that, before the
"Defendant Bienvenido Gelisan is the owner of a freight truck bearing plate No. TH-2377.
approval is granted, there should be a public hearing, with notice to all interested On January 31, 1962, defendant Bienvenido Gelisan and Roberto Espiritu entered into a
parties, in order that the Commission may determine if there are good and contract marked Exhibit 3-Gelisan under which Espiritu hired the same freight truck of
reasonable grounds justifying the transfer or lease of the property covered by the Gelisan for the purpose of hauling rice, sugar, flour and fertilizer at an agreed price of
franchise, or if the sale or lease is detrimental to public interest, Such being the P18.00 per trip within the limits of the City of Manila provided the loads shall not exceed
reason and philosophy behind this requirement, it follows that if the property 200 sacks. It is also agreed that Espiritu shall bear and pay all losses and damages
covered by the franchise is transferred, or leased to another without obtaining the attending the carriage of the goods to be hauled by him. The track was taken by a driver of
requisite approval, the transfer is not binding against the Public Service Roberto Espiritu on February 1,1962. Plaintiff Benito Alday, a trucking operator, and who
owns about 15 freight trucks, had known the defendant Roberto Espiritu since 1948 as a defendant Roberto Espiritu for the sum of P6,000 with interest at the legal rate from the
truck operator. Plaintiff had a contract to haul the fertilizers of the Atlas Fertilizer time of the filing of the complaint, and the costs of the suit Plantiff's complaint is dismissed
Corporation from Pier 4, North Harbor, to its Warehouse in Mandaluyong. Alday met with respect to defendant Bienvenido Gelisan, and judgment is rendered in favor of
Espiritu at the gate of Pier 4 and the latter offered the use of his truck with the driver and defendant Bienvenido Gelisan and against the plaintiff for the sum of P350."2
helper at 9 centavos per bag of fertilizer. The offer was accepted by plaintiff Alday and he
instructed his checker Celso Henson to let Roberto Espiritu haul the fertilizer. Espiritu
made two hauls of 200 bags of fertilizer per trip. The fertilizer was delivered to the driver
On appeal, however, the Court of Appeals, citing the case of Montoya vs. Ignacio,3
and helper of Espiritu with the necessary way bill receipts, Exhibits A and B. Espiritu, found that Bienvenido Gelisan is likewise liable for being the registered owner of
however, did not deliver the fertilizer to the Atlas Fertilizer bodega at Mandaluyong. The the truck; and that the lease contract, executed by and between Bienvenido
signatures appearing in the way bill receipts Exhibits A and B of the Alday Transportation Gelisan and Roberto Espiritu, is not binding upon Benito Alday for not having
admittedly not the signature of any representative or employee of the Atlas Fertilizer been previously approved by the Public Service Commission. Accordingly, it
Corporation. Roberto Espiritu could not be found, and plaintiff reported the loss to the sentenced Bienvenido Gelisan to pay, jointly and severally with Roberto Espiritu,
Manila Police Department. Roberto Espiritu was later arrested and booked for theft. x x x Benito Alday the amount of P5,397.30, with legal interest thereon from the filing
of the complaint; and to pay the costs. Roberto Espiritu, in turn, was ordered to
"Subsequently, plaintiff Alday saw the truck in question on Sto. Cristo St. and he notified pay or refund Bienvenido Gelisan whatever amount the latter may have paid to
the Manila Police Department, and it was impounded by the police, It was claimed by Benito Alday by virtue of the judgment.4
Bienvenido Gelisan from the Police Department after he had been notified by his employees
that the truck had been impounded by the police; but as he could not produce at the time
the registration papers, the police would not release the truck to Gelisan. As a result of the Hence, the present recourse by Bienvenido Gelisan.
impounding of the truck according to Gelisan, x x x and that for the release of the truck he
paid the premium of P300 to the surety company."1 The petition is without merit.

Benito Alday was compelled to pay the value of the 400 bags of fertilizer, in the The judgment rendered by the Court of Appeals, which is sought to be reviewed,
amount of P5,397.33, to Atlas Fertilizer Corporation so that, on 12 February is in accord with the facts and the law on the case and we find no cogent reason to
1962, he (Alday) filed a complaint against Roberto Espiritu and Bienvenido disturb the same. The Court has invariably held in several decisions that the
Gelisan with the Court of First Instance of Manila, docketed therein as Civil Case registered owner of a public service vehicle is responsible for damages that may
No. 49603, for the recovery of damages suffered by him thru the criminal acts arise from consequences incident to its operation or that may be caused to any of
committed by the defendants. the passengers therein,5 The claim of the petitioner that he is not liable in view of
the lease contract executed by and between him and Roberto Espiritu which
The defendant, Roberto Espiritu failed to file an answer and was, accordingly, exempts him from liability to third persons, cannot be sustained because it
declared in default. appears that the lease contract, adverted to, had not been approved by the Public
Service Commission. It is settled in our jurisprudence that if the property covered
The defendant, Bienvenido Gelisan, upon the other hand, disowned responsibility. by a franchise is transferred or leased to another without obtaining the requisite
He claimed that he had no contractual relations with the plaintiff Benito Alday as approval, the transfer is not binding upon the public and third persons.6
regards the hauling and/or delivery of the 400 bags of fertilizer mentioned in the
complaint; that the alleged misappropriation or nondelivery by defendant Roberto We also find no merit in the petitioner's argument that the rule requiring the
Espiritu of plaintiff's 400 bags of fertilizer, was entirely beyond his (Gelisan's) previous approval by the Public Service Commission of the transfer or lease of the
control and knowledge, and which fact became known to him, for the first time. on motor vehicle, may be applied only in cases where there is no positive
8 February 1962 when his freight truck, with plate No. TH-2377, was impounded identification of the owner or driver, or where there are very scant means of
by the Manila Police Department, at the instance of the plaintiff; and that in his identification, but not in those instances where the person responsible for
written contract of hire with Roberto Espiritu, it was expressly provided that the damages has been fixed or determined beforehand, as in the case at bar. The
latter will bear and pay all losses and damages attending the carriage of goods to reason for the rule we reiterate in the present case, was explained by the Court in
be hauled by said Roberto Espiritu. Montoya vs. Ignacio,7 thus:

After trial, the Court of First Instance of Manila ruled that Roberto Espiritu alone "There is merit in this contention. The law really requires the approval of the Public Service
was liable to Benito Alday, since Bienvenido Gelisan was not privy to the contract Commission in order that a franchise. or any privilege pertaining thereto, may be sold or
between Espiritu and Alday. The dispositive portion of the decision reads, as leased without infringing the certificate issued to the grantee. The reason is obvious. Since a
follows: franchise is personal in nature any transfer or lease thereof should be notified to the Public
Service Commission so that the latter may take proper safeguards to protect the interest of
the public. In fact, the law requires that, before the approval is granted, there should be a
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the public hearing, with notice to all interested parties, in order that the Commission may
determine if there are good and reasonable grounds justifying the transfer or lease of the Petition denied
property covered by the franchise, or if the sale or lease is detrimental to public interest.
Such being the reason and philosophy behind this re quirement, it follows that if the
property covered by the franchise is transferred, or leased to another without obtaining the Notes.—In proceedings for granting of certificate of public convenience, the
requisite approval, the transfer is not binding against the Public Service Commission and in application must not only be published in newspaper, but also notice must be
contemplation of law the grantee continues to be responsible under the franchise in relation individually given to affected parties. (Cordero vs. Public Service Commission, 121
to the Commission and to the Public. Since the lease of the jeepney in question was made SCRA 769.)
without such approval, the only conclusion that can be drawn is that Marcelino Ignacio still
continues to be its operator in contemplation of law, and as such is responsible for the
consequences incident to its operation, one of them being the collision under consideration." Civil liability of bus owner for death caused by his driver, subsidiary, and
insurance proceeds paid to heir of victim by insurance credited in favor of erring
driver. (De Caliston vs. Court of Appeals, 122 SCRA 958.)
Bienvenido Gelisan, the registered owner, is not however without recourse. He
has a right to be indemnified by Roberto Espiritu for the amount that he may be
required to pay as damages for the injury caused to Benito Alday, since the lease , Inc. All rights reserved.
contract in question, although not effective against the public for not having been
approved by the Public Service Commission, is valid and binding between the
contracting parties.8

We also find no merit in the petitioner's contention that his liability is only
subsidiary. The Court has consistently considered the registered owner/operator
of a public service vehicle to be jointly and severally liable with the driver for
damages incurred by passengers or third persons as a consequence of injuries
sustained in the operation of said vehicles. Thus, in the case of Vargas vs.
Langcay,9 the Court said:

"We hold that the Court of Appeals erred in considering appellant-petitioner Diwata Vargas
only subsidiarily liable under Article 103 of the Revised Penal Code. This court, in previous
decisions, has always considered the registered owner/operator of a passenger vehicle,
jointly and severally liable with the driver, for damages incurred by passengers or third
persons as a consequence of injuries (or death) sustained in the operation of said vehicles.
(Montoya vs. Ignacio, 94 Phil., 182; Timbol vs. Osias, G.R. No. L-7547, April 30,1955; Vda.
de Medina vs. Cresencia, 99 Phil., 506; Necesito vs. Paras, 104 Phil., 75; Erezo vs. Jepte, 102
Phil, 103; Tamayo vs. Aquino and Rayos vs. Tamayo, 105 Phil., 949; 56 Off. Gaz. [36] 5617.)
In the case of Erezo vs. Jepte, Supra, We held:

"* * * In synthesis, we hold that the registered owner, the defendant-appellant herein, is
primarily responsible for the damage caused * * *" (Italics ours)

In the case of Tamayo vs. Aquino, supra, We said:

"* * * As Tamayo is the registered owner of the truck, his responsibility to the public or to
any passenger riding in the vehicle or truck must be direct* * * (Italics ours)

WHEREFORE, the petition is hereby DENIED. With costs against the petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.