JOHN KAM BIAK Y. CHAN, JR., G.R. No.

160283
P e t i t i o n e r,

- versus -

IGLESIA NI CRISTO, INC.,

R e s p o n d e n t.

CHICO-
NAZARIO, J.:

Before Us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals in CA-G.R.

CV No. 65976, dated 25 September 2003. Said Decision denied the petitioners appeal from the decision of

the Regional Trial Court (RTC), La Union, Branch 31, in Civil Case No. A-1646.

THE FACTS

The antecedents of the instant case are quite simple.

The Aringay Shell Gasoline Station is owned by the petitioner. It is located in Sta. Rita East, Aringay, La

Union, and bounded on the south by a chapel of the respondent.

The gasoline station supposedly needed additional sewerage and septic tanks for its washrooms. In view of

this, the services of Dioscoro Ely Yoro (Yoro), a retired general of the Armed Forces of the Philippines, was

procured by petitioner, as the former was allegedly a construction contractor in the locality.

Petitioner and Yoro executed a Memorandum of Agreement[3] (MOA) on 28 February 1995 which is

reproduced hereunder:

MEMORANDUM OF AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This MEMORANDUM OF AGREEMENT, executed this 28 th day of February, 1995, by and

between:
1
 JOHN Y. CHAN, of legal age, single, and a resident of Aringay, La Union, now and
hereinafter called the FIRST PARTY;

GEN. ELY E. YORO, Jr., of legal age, married, and a resident of Damortis, Sto. Tomas,
La Union, hereinafter referred to as the SECOND PARTY:

WITNESSETH that:
WHEREAS, the FIRST PARTY is the owner of a parcel of land located at Sta. Rita,
Aringay, La Union.

WHEREAS, the FIRST PARTY, desires to dig a septic tank for its perusal in the property
bordering Iglesia ni Cristo.

WHEREAS, the SECOND PARTY is willing to contract the intended digging of septic tank for
the first party.

WHEREAS, the FIRST PARTY and SECOND PARTY has (sic) agreed verbally as to the
compensation of the said digging of septic tank.

WHEREFORE, for and in consideration of the terms and covenants hereinbelow set forth, the
FIRST PARTY hereby AGREES and ALLOWS the SECOND PARTY to undertake the digging of
the parcel of land for the exclusive purpose of having a septic tank.

TERMS AND COVENANTS

1. The SECOND PARTY shall contract the said digging;

2. The FIRST PARTY shall have complete control over the number of personnel who will be
entering the property for said contract;

3. The digging shall be allowed for a period of three (3) weeks only, commencing on March
28, 1995, unless extended by agreement of the parties;

4. Any damage within or outside the property of the FIRST PARTY incurred during the digging
shall be borne by the SECOND PARTY;

5. In the event that valuable objects are found on the property, the same shall be divided
among the parties as follows:

FIRST PARTY - 60%

SECOND PARTY - 40%

6. In the event that valuable objects are found outside the property line during the said
digging, the same shall be divided among the parties as follows:

FIRST PARTY - 35%

SECOND PARTY - 65%

7. In case government or military interference or outside intervention is imminent, the FIRST

PARTY hereby reserves the option to stop the digging at any stage thereof.

IN WITNESS WHEREOF, We have hereunto set our hands on the day and year first
above-written at Aringay, La Union.[4]

2
 Diggings thereafter commenced. After some time, petitioner was informed by the members of the

respondent that the digging traversed and penetrated a portion of the land belonging to the latter. The

foundation of the chapel was affected as a tunnel was dug directly under it to the damage and prejudice of

the respondent.

On 18 April 1995, a Complaint[5] against petitioner and a certain Teofilo Oller, petitioners engineer, was filed

by the respondent before the RTC, La Union, Branch 31, docketed therein as Civil Case No. A-1646.

Petitioner and Oller filed an Answer with Third-Party Complaint[6] impleading Yoro as third-party defendant.

Yoro filed an Answer to the Third-Party Complaint[7] dated 13 July 1995. An Amended and Supplemental

Complaint[8] dated 30 August 1995 was later filed by the respondent already naming Yoro as a party-

defendant, to which the petitioner and Oller filed an Answer.[9] Yoro filed his own Answer.[10]

After four years of hearing the case, the trial court promulgated its Decision [11] holding that the diggings

were not intended for the construction of sewerage and septic tanks but were made to construct tunnels to

find hidden treasure.[12] The trial court adjudged the petitioner and Yoro solidarily liable to the respondent

on a 35%-65% basis (the petitioner liable for the 35%), and absolving Oller from any liability, viz:

WHEREFORE, this Court renders judgment in favor of plaintiff IGLESIA NI CRISTO and
against defendants JOHN KAMBIAK CHAN and DIOSCORO ELY YORO, JR. who are respectively
solidarily liable to PLAINTIFF on a 35%-65% basis, with JOHN CHAN taking the 35% tab,
Ordering the two (2) aforesaid DEFENDANTS to pay PLAINTIFF the following amounts:

1. SIX HUNDRED THIRTY-THREE THOUSAND FIVE HUNDRED NINETY-FIVE PESOS AND

FIFTY CENTAVOS (P633,595.50); representing ACTUAL DAMAGES;

2. FIVE HUNDRED THOUSAND PESOS (P500,000.00) representing MORAL DAMAGES;

3. TEN MILLION PESOS (P10,000,000.00) as EXEMPLARY DAMAGES;

4. FIFTY THOUSAND PESOS (P50,000.00) as plaintiffs attorneys fees; and

5. TWENTY THOUSAND PESOS (P20,000.00) as litigation expenses.

Defendant TEOFILO OLLER is absolved of any civil liability.

Any counterclaim filed against PLAINTIFF IGLESIA NI CRISTO is dismissed.[13]

3
Petitioner filed a Notice of Appeal [14] dated 18 August 1999. Yoro filed his own Notice of Appeal[15] dated 20

August 1999.

In a Resolution[16] dated 19 November 1999, the trial court disallowed Yoros appeal for failure to pay the

appellate court docket and other lawful fees within the reglementary period for taking an appeal.[17] In view

of Yoros failure to appropriately file an appeal, an order was issued for the issuance of a Writ of Execution

as against him only, the dispositive portion of which reads:

WHEREFORE, premises considered, this Court GRANTS the motion of plaintiff Iglesia
ni Cristo for the issuance of a Writ of Execution as against Dioscoro Ely Yoro, Jr. only. [18]

The petitioners appeal to the Court of Appeals, on the other hand, was given due course. [19] On 25

September 2003, the Court of Appeals rendered its Decision denying the appeal. It affirmed the trial court

but with modifications. The decretal portion of the decision states:

WHEREFORE, the appeal is hereby DENIED. The assailed decision in Civil Case No. A-1646 is
hereby AFFIRMED with MODIFICATIONS as follows:

(a) The award of moral damages in the amount of P500,000.00 is hereby deleted.

(b) The award of exemplary damages is hereby reduced to P50,000.00.

(c) The award of attorneys fees and litigation expenses is hereby reduced to P30,000.00.[20]

Undeterred, petitioner instituted the instant case before this Court. On 15 December 2004, the instant

petition was given due course.[21]

ASSIGNMENT OF ERRORS

Petitioner assigns as errors the following:

4
 THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL
COURT (BRANCH 31, AGOO, LA UNION) PARTICULARLY IN SAYING THAT THE BASIS OF THE
SOLIDARY OBLIGATION OF PETITIONER AND YORO VIS--VIS PLAINTIFF IS BASED NOT ON
THE MOA BUT ON TORT

II

THE COURT OF APPEALS ERRED IN NOT GIVING EFFECT TO THE MOA WHICH SHOULD
EXONERATE THE PETITIONER FROM ALL LIABILITIES TO THE PRIVATE RESPONDENT

III

THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE THIRD-PARTY COMPLAINT AS

CROSS-CLAIM OF THE PETITIONER AGAINST YORO.[22]

ISSUE

Drawn from the above assignment of errors, the solitary issue that needs to be resolved is:

WHETHER OR NOT THE MEMORANDUM OF AGREEMENT ENTERED INTO BY THE PETITIONER

AND YORO HAS THE EFFECT OF MAKING THE LATTER SOLELY RESPONSIBLE FOR DAMAGES
TO THE RESPONDENT.

THE RULINGS OF THE COURT

Petitioner avers that no liability should attach to him by laying the blame solely on Yoro. He argues that the

MOA executed between him and Yoro is the law between them and must be given weight by the courts.

Since nothing in the MOA goes against the law, morals, good customs and public policy, it must govern to

absolve him from any liability.[23] Petitioner relies heavily in Paragraph 4 of the MOA, which is again

reproduced hereunder:

4. Any damage within or outside the property of the FIRST PARTY incurred during the digging
shall be borne by the SECOND PARTY.

In answer to this, the respondent asserts that the MOA should not absolve petitioner from any liability. This

written contract, according to the respondent, clearly shows that the intention of the parties therein was to
5
search for hidden treasure. The alleged digging for a septic tank was just a cover-up of their real

intention.[24] The aim of the petitioner and Yoro to intrude and surreptitiously hunt for hidden treasure in

the respondents premises should make both parties liable.[25]

At this juncture, it is vital to underscore the findings of the trial court and the Court of Appeals as to what

was the real intention of the petitioner and Yoro in undertaking the excavations. The findings of the trial

court and the Court of Appeals on this point are in complete unison. Petitioner and Yoro were in quest for

hidden treasure[26] and, undoubtedly, they were partners in this endeavor.

The Court of Appeals, in its Decision, held in part:

The basis of their solidarity is not the Memorandum of Agreement but the fact that
they have become joint tortfeasors. There is solidary liability only when the obligation
expressly so states, or when the law or the nature of the obligation requires solidarity. [27]

We find no compelling reason to disturb this particular conclusion reached by the Court of Appeals. The

issue, therefore, must be ruled in the negative.

Article 2176 of the New Civil Code provides:

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

Based on this provision of law, the requisites of quasi-delict are the following:

(a) there must be an act or omission;

(b) such act or omission causes damage to another;

(c) such act or commission is caused by fault or negligence; and

(d) there is no pre-existing contractual relation between the parties.

6
All the requisites are attendant in the instant case. The tortious act was the excavation which caused damage

to the respondent because it was done surreptitiously within its premises and it may have affected the

foundation of the chapel. The excavation on respondents premises was caused by fault. Finally, there was

no pre-existing contractual relation between the petitioner and Yoro on the one hand, and the respondent

on the other.

For the damage caused to respondent, petitioner and Yoro are jointly liable as they are joint

tortfeasors. Verily, the responsibility of two or more persons who are liable for a quasi-delict is solidary.[28]

The heavy reliance of petitioner in paragraph 4 of the MOA cited earlier cannot steer him clear of any

liability.

As a general rule, joint tortfeasors are all the persons who command, instigate, promote, encourage,

advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done,

if done for their benefit.[29]

Indubitably, petitioner and Yoro cooperated in committing the tort. They even had provisions in their

MOA as to how they would divide the treasure if any is found within or outside petitioners property line.

Thus, the MOA, instead of exculpating petitioner from liability, is the very noose that insures that he be so

declared as liable.

Besides, petitioner cannot claim that he did not know that the excavation traversed the respondents

property. In fact, he had two (2) of his employees actually observe the diggings, his security guard and his

engineer Teofilo Oller.[30]

7
Coming now to the matter on damages, the respondent questions the drastic reduction of the exemplary

damages awarded to it. It may be recalled that the trial court awarded exemplary damages in the amount

of P10,000,000.00 but same was reduced by the Court of Appeals to P50,000.00.

Exemplary or corrective damages are imposed by way of example or correction for the public good.[31] In

quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. [32] By gross

negligence is meant such entire want of care as to raise a presumption that the person in fault is conscious

of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person

or property of others.[33]

Surreptitiously digging under the respondents chapel which may weaken the foundation thereof, thereby

endangering the lives and limbs of the people in worship, unquestionably amounts to gross negligence. Not

to mention the damage that may be caused to the structure itself. The respondent may indeed be awarded

exemplary damages.

For such tortious act done with gross negligence, the Court feels that the amount awarded by the Court of

Appeals is inadequate. The exemplary damages must correspondingly be increased to P100,000.00.

The modification made by this Court to the judgment of the Court of Appeals must operate as against Yoro,

for as fittingly held by the court a quo:

While it is settled that a party who did not appeal from the decision cannot seek any
relief other than what is provided in the judgment appealed from, nevertheless, when the
rights and liability of the defendants are so interwoven and dependent as to be inseparable,
in which case, the modification of the appealed judgment in favor of appellant operates as a
modification to Gen. Yoro who did not appeal. In this case, the liabilities of Gen. Yoro and
appellant being solidary, the above exception applies.[34]

WHEREFORE, the Decision of the Court of Appeals dated 25 September 2003 is AFFIRMED with

MODIFICATION as to the award of exemplary damages, which is hereby increased to P100,000.00. Costs

against petitioner.

8
SO ORDERED.

9
SECOND DIVISION
[G.R. No. L-8110. June 30, 1956.]
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMEN’S COMPENSATION
COMMISSION, THE HEIRS OF PEDRO MAMADOR and GERONIMO MA. COLL, Respondents.

DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmen’s Compensation
Commissioner confirming the referee’s award of compensation to the heirs of Pedro Mamador for his
accidental death.
Only the right to compensation is disputed; chan roblesvirtualawlibrarynot the amount.
“It appears,” says the award, “that on August 23, 1951, at 6:chanroblesvirtuallawlibrary00 a.m. in Bo.
Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of the Respondent-
corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to the latter, which was then
driven by one Procopio Macunat, also employed by the corporation, and on its way to their place of work at
the mine camp at Talantunan, while trying to overtake another truck on the company road, it turned over
and hit a coconut tree, resulting in the death of said Mamador and injury to the others.”
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased.
(Criminal Case No. 1491). He has paid nothing however, to the latter.
In his first proposition Petitioner challenges the validity of the proceedings before the Commission, asserting
it had not been given the opportunity to cross-examine the opposing witnesses. According to Respondents.
“The records show that pursuant to a request made by this Commission on March 28, 1953 to investigate
the above-entitled case, the Public Defender of Boac, Marinduque, notified RespondentGeronimo Ma. Coll
and the general manager of the Respondent company, Mr. Eric Lenze, to appear before him in an
investigation, first on May 12, 1953, when neither of them appeared, and the second on May 29, 1953,
when only Mr. Geronimo Ma. Coll. appeared. The sworn testimony of Mr. Ma. Coll was then taken down in
a question and answer method. On August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote
the Respondent company to comment on the enclosed copy of the sworn declaration of Ma. Coll.
The Respondent company, thru its Vice President, denied its liability under the Workmen’s Compensation
Act, as amended. In an investigation conducted on February 8, 1954 by the undersigned referee,
the Respondent company thru Mr. Lenze who was assisted by counsel, was allowed to examine the records
of the case including the sworn declaration of Ma. Coll and was given all the opportunity to rebut the same
by additional evidence.”
In our opinion, Petitioner’s grievance does not rest on any sound basis, because it was given notice, and
therefore had the chance, to examine (and cross-examine) the witnesses against it. The statute even
permits the Commissioner (or his referee) to take testimony without notice (section 48 Act 3428 as
amended) provided of course such ex parte evidence is reduced to writing, and the adverse party is afforded
opportunity to examine and rebut the same which was done in this instance.
Anyway we are not shown how its failure to cross-examine the witnesses prejudiced the Petitioner’s position.
In its second proposition, Petitioner maintains that this claim is barred by section 6 of the Workmen’s
Compensation Law, because (a) Macunat was prosecuted and required to indemnify the heirs of the
deceased and (b) an amicable settlement was concluded between said heirs and Macunat.
Section 6 provides as follows:chanroblesvirtuallawlibrary
“Sec. 6. Liability of third parties. — In case an employee suffers an injury for which compensation is due
under this Act by any other person besides his employer, it shall be optional with such injured employee
either to claim compensation from his employer, under this Act, or sue such other person for damages, in
accordance with law; chan roblesvirtualawlibraryand in case compensation is claimed and allowed in
accordance with this Act, the employer who paid such compensation or was found liable to pay the same,
shall succeed the injured employee to the right of recovering from such person what he
10
paid:chanroblesvirtuallawlibrary Provided, That in case the employer recovers from such third person
damages in excess of those paid or allowed under this Act, such excess shall be delivered to the injured
employee or any other person entitled thereto, after deduction of the expenses of the employer and the
costs of the proceedings. The sum paid by the employer for compensation or the amount of compensation
to which the employee or his dependents are entitled, shall not be admissible as evidence in any damage
suit or action.”
It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome constituted an election by the
employee (or his heirs) to sue the third person, such election having the effect of releasing the employer.
However, Criminal Case No. 1491 was not a suit for damages against the third person, it being alleged,
without contradiction that the heirs did not intervene therein and have not so far received the indemnity
ordered by the court. At any rate, we have already decided in Nava vs. Inchausti Co. 1 that the indemnity
granted the heirs in a criminal prosecution of the “other person” does not affect the liability of the employer
to pay compensation. 2
As to the alleged “amicable settlement,” it consists of an affidavit wherein, for the sum of 150 pesos,
Mamador’s widow promised “to forgive Macunat for the wrong committed and not to bring him before the
authorities for prosecution.” Upon making such promise — Petitioner argues — she elected one of the
remedies, (against the third person) and is barred from the other remedy (against the employer). The
contention may not be sustained, inasmuch as all the widow promised was to forego the offender’s criminal
prosecution. Note further that a question may be raised whether she could bind the other heirs of the
deceased.
The most important aspect of this appeal, is the effect of the deceased’s having violated the employer’s
prohibition against laborers riding the haulage trucks. Petitioner claims such violation was the laborer’s
“notorious negligence” which, under the law, precludes recovery. The Commission has not declared that the
prohibition was known to Mamador. Yet the employer does not point out in the record evidence to that
effect. Supposing Mamador knew the prohibition, said the referee, “can we truthfully say that he boarded
the fatal truck with full apprehension of the existence of the danger, if any at all, that an ordinary prudent
man would try to avoid? I do not believe so, and even in the presence of doubt, the same must be resolved
in his favor. Unless of course, we can attribute to him a desire to end his life. Nowhere in the records of this
case can we find the slightest insinuation of that desire.”
There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence, ordinarily.
It couldn’t be, because transportation by truck is not dangerous per se. It is argued that there was notorious
negligence in this particular instance because there was the employer’s prohibition. Does violation of this
order constitute negligence? Many courts hold that violation of a statute or ordinance constitutes negligence
per se. Others consider the circumstances.
However there is practical unanimity in the proposition that violation of a rule promulgated by a Commission
or board is not negligence per se; chan roblesvirtualawlibrarybut it may be evidence of negligence. (C.J.S.,
Vol. 65, p. 427.)
This order of the employer (prohibition rather) couldn’t be of a greater obligation than the rule of a
Commission or board. And the referee correctly considered this violation as possible evidence of
negligence; chan roblesvirtualawlibrarybut it declared that under the circumstance, the laborer could not be
declared to have acted with negligence. Correctly, it is believed, since the prohibition had nothing to do with
personal safety of the riders.
Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding.
Nevertheless, even granting there was negligence, it surely was not “notorious” negligence, which we have
interpreted to mean the same thing as “gross” negligence 3 — implying “conscious indifference to
consequences” “pursuing a course of conduct which would naturally and probably result in injury” “utter
disregard of consequences.” (38 Am. Jur., 691) Getting or accepting a free ride on the company’s haulage
truck couldn’t be gross negligence, because as the referee found, “no danger or risk was apparent.”
There being no other material point raised in the petition for review, the award of compensation is hereby
affirmed, with costs against Petitioner.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

11
Reyes, A., J., concurs in the result.

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

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

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

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

The question presented for decision is whether or not the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done;
and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right
to assume that the horse and the rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment

12
have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the
nature of things this change of situation occurred while the automobile was yet some distance away; and
from this moment it was not longer within the power of the plaintiff to escape being run down by going to
a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was
his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision.
Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known
nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the
law.

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

The question as to what would constitute the conduct of a prudent man in a given situation must of course
be always determined in the light of human experience and in view of the facts involved in the particular
case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known to them. They are not, and
are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there
is something before them to suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to
take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.

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

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

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages
which would otherwise have been assessed wholly against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor
to the company's yards located not far away. The rails were conveyed upon cars which were hauled along
13
a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect
of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid
off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead
of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the damages
should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one now before us, where the
defendant was actually present and operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough to say that the negligence of the defendant was
in this case the immediate and determining cause of the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.

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

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

14
G.R. No. L-44264 September 19, 1988

HEDY GAN y YU, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

Pacis, Baluyot, Reyes & De Leon for petitioner.

The Solicitor General for respondents.

FERNAN, C.J.:

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 Manila, Branch XXII presided by Judge Federico C. Alikpala. She
was sentenced 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 sum of P12,000.00 without any subsidiary imprisonment in case of
insolvency and to pay the costs. On appeal, the trial court's decision was modified and petitioner was
convicted only of Homicide thru Simple Imprudence. Still unsatisfied with the decision of the Court of
Appeals,1 petitioner has come to this Court for a complete reversal of the judgment below.

The facts of the case as found by the appellate court are as follows:

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 the
road, one following the other about two to three meters from each other. As the car driven
by the accused approached the place where the two vehicles were parked, there was a vehicle
coming from the opposite direction, followed by another which tried to overtake and bypass
the one in front of it and thereby encroached the lane of the car driven by the accused. To
avoid a head-on collision with the oncoming vehicle, the defendant swerved to 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 the parked
jeepney. The force of the impact caused the parked jeepney to move forward hitting the rear
of the parts truck ahead of it. The pedestrian was injured, the Toyota Sedan was damaged on
its front, the jeep suffered damages on its rear and front paints, and the truck sustained
scratches at the wooden portion of its rear. The body of the old man who was later Identified
as Isidoro Casino was immediately brought to the Jose Reyes Memorial Hospital but was
(pronounced) dead on arrival.2

An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above
incident. She entered a plea of not guilty upon arraignment and the case was set for trial.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the
trial fiscal moved for the dismissal of the case against petitioner during the resumption of hearing on
September 7, 1972. The grounds cited therefor were lack of interest on the part of the complaining witness
to prosecute the case as evidenced by an affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.

The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to
present its evidence. After the prosecution rested its case, the petitioner filed a motion to dismiss the case
on the ground of insufficiency of evidence.

15
On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable doubt
of the of- offense charged.

Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of Appeals
rendered a decision, the dispositive portion of which reads as follows:

Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the crime
of homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of the Revised
Penal Code, she is hereby sentenced to the indeterminate penalty of three (3) months and
eleven (11) days of arresto mayor and to indemnify the heirs of Isidoro Casino in the sum of
Twelve Thousand Pesos (Pl2,000.00) without, however, any subsidiary imprisonment in case
of insolvency, and to pay the costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

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
to the right should have also stepped on the brakes or lessened her speed, to avoid the death
of a pedestrian.

II

The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple
Imprudence.

III

The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the
sum of P12,000.00.4

We reverse.

The test for determining whether or not a person is negligent in doing an act whereby injury or damage
results to the person or 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 oil the doer to take precaution against its mischievous
results and the failure to do so constitutes negligence. 5

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 without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently
and upon reflection may appear to have been a better method, unless the emergency in which he finds
himself is brought about by his own negligence." 6

Applying the above test to the case at bar, we find the 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 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
not only have swerved the car she was driving to the right but should have also tried to stop

16
 or lessen her speed so that she would not bump into the pedestrian who was crossing at the
time but also the jeepney which was then parked along the street. 7

The course of action suggested by the appellate court would seem reasonable were it not for the fact that
such suggestion did not take into account the amount of time afforded petitioner to react to the situation
she was in. For it is undeniable that the suggested course of action presupposes 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 possible harm to herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative
distances of petitioner to the parked jeepney and the oncoming overtaking vehicle that 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 light without stepping on her brakes. In fact, the evidence presented by the prosecution on this
point is the petitioner's statement to the police 8 stating::

And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa

sasakyan na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit
siya naman biglangpagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng
magawa . Iyan ho ang buong pangyayari nang nasabing aksidente.9 (Emphasis supplied)

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 narrated by petitioner, we find that the appellate court
is asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise her
best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to act with all the coolness of a person under
normal conditions. 10 The danger confronting petitioner was real and imminent, threatening her very
existence. She had no opportunity for rational thinking but only enough time to heed the very powerfull
instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits.
We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and
consequently absolve petitioner from any criminal negligence in connection with the incident under
consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of the
claim due them, had effectively and clearly waived their right thereto.

WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime 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.

17
G.R. No. 115024 February 7, 1996

MA. LOURDES VALENZUELA, petitioner,

vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

G.R. No. 117944 February 7, 1996

RICHARD LI, petitioner,

vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.

DECISION

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action
to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial
court are succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in
a vehicular accident.

Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990,
plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her
restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling
along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before
reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if needed. Having
been told by the people present that her rear right tire was flat and that she cannot reach her home
in that car's condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency
lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left
side of the rear of her car pointing to the tools to a man who will help her fix the tire when she was
suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the
name of defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against
the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She
was pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her
thigh, with only some skin and sucle connected to the rest of the body. She was brought to the UERM
Medical Memorial Center where she was found to have a "traumatic amputation, leg, left up to distal
thigh (above knee)". She was confined in the hospital for twenty (20) days and was eventually fitted
with an artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of the
artificial leg (P27,000.00) were paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages
in the amount of P100,000.00 and other medical and related expenses amounting to a total of
P180,000.00, including loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph;
considering that it was raining, visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San
Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights".
18
 Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle,
and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking
lights or early warning device, and the area was poorly lighted. He alleged in his defense that the
left rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the
outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the
testimony of plaintiff's witness that after being bumped the car of the plaintiff swerved to the right
and hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that
plaintiff was reckless or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch
of the three cars involved in the accident, testified that the plaintiff's car was "near the sidewalk";
this witness did not remember whether the hazard lights of plaintiff's car were on, and did not notice
if there was an early warning device; there was a street light at the corner of Aurora Blvd. and F.
Roman, about 100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct.
28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and
opened the trunk compartment, defendant's car came approaching very fast ten meters from the
scene; the car was "zigzagging". The rear left side of plaintiff's car was bumped by the front right
portion of defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the
parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was
destroyed, and landed under the car. He stated that defendant was under the influence of liquor as
he could "smell it very well" (pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of
gross negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held
Alexander Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180.
It ordered the defendants to jointly and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a

result of her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro
La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month,
as unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the
date of this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty
salons from July, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show
that the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to be at
the center of the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an
appeal with the respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals
found that there was "ample basis from the evidence of record for the trial court's finding that the plaintiff's
car was properly parked at the right, beside the sidewalk when it was bumped by defendant's
car."1 Dismissing the defendants' argument that the plaintiff's car was improperly parked, almost at the
center of the road, the respondent court noted that evidence which was supposed to prove that the car was
19
at or near center of the right lane was never presented during the trial of the case. 2 The respondent court
furthermore observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was
not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was outside
his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24,
1990 when his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her
car and opening the trunk compartment; he noticed the car of Richard Li "approaching very fast ten
(10) meters away from the scene"; defendant's car was zigzagging", although there were no holes
and hazards on the street, and "bumped the leg of the plaintiff" who was thrown against the
windshield of defendant's care, causing its destruction. He came to the rescue of the plaintiff, who
was pulled out from under defendant's car and was able to say "hurting words" to Richard Li because
he noticed that the latter was under the influence of liquor, because he "could smell it very well" (p.
36, et. seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the
1970's, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the
Court of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the
same, in addition to costs, attorney's fees and the other damages. The Court of Appeals, likewise, dismissed
the defendants' counterclaims.3

Consequently, both parties assail the respondent court's decision by filing two separate petitions before this
Court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that
in the event that this Court finds him negligent, such negligence ought to be mitigated by the contributory
negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision
insofar as it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li
and insofar as it reduces the amount of the actual and moral damages awarded by the trial court.4

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law.
What it, in effect, attempts to have this Court review are factual findings of the trial court, as sustained by
the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his
company in the early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact
of the Court of Appeals are binding and conclusive upon us, and this Court will not normally disturb such
factual findings unless the findings of fact of the said court are palpably unsupported by the evidence on
record or unless the judgment itself is based on a misapprehension of facts.5

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness,
Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident.
On trial, he testified that he observed a car being driven at a "very fast" speed, racing towards the general
direction of Araneta Avenue.6 Rodriguez further added that he was standing in front of his establishment,
just ten to twenty feet away from the scene of the accident, when he saw the car hit Valenzuela, hurtling
her against the windshield of the defendant's Mitsubishi Lancer, from where she eventually fell under the
defendant's car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking
with the smell of liquor had alighted from the offending vehicle in order to survey the incident. 7 Equally
important, Rodriguez declared that he observed Valenzuela's car parked parallel and very near the
sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the center of the right lane. We agree
that as between Li's "self-serving" asseverations and the observations of a witness who did not even know
the accident victim personally and who immediately gave a statement of the incident similar to his testimony

20
to the investigator immediately after the incident, the latter's testimony deserves greater weight. As the
court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not prepared
to set aside the trial court's reliance on the testimony of Rodriguez negating defendant's assertion
that he was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of
speed is not necessarily impaired. He was subjected to cross-examination and no attempt was made
to question .his competence or the accuracy of his statement that defendant was driving "very fast".
This was the same statement he gave to the police investigator after the incident, as told to a
newspaper report (Exh. "P"). We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the
testimony. Rodriguez testified that the scene of the accident was across the street where his
beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state
that the accident transpired immediately in front of his establishment. The ownership of the
Lambingan se Kambingan is not material; the business is registered in the name of his mother, but
he explained that he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony
that the streetlights on his side of Aurora Boulevard were on the night the accident transpired (p. 8)
is not necessarily contradictory to the testimony of Pfc. Ramos that there was a streetlight at the
corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy
rain and the rain has stopped and he was outside his establishment at the time the accident
transpired (pp. 64-65, tsn, June 17, 1991). This was consistent with plaintiff's testimony that it was
no longer raining when she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was defendant Li
who stated that it was raining all the way in an attempt to explain why he was travelling at only 50-
55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived
at the scene only in response to a telephone call after the accident had transpired (pp. 9-10, tsn,
Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's testimony that would impair
the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm the trial
court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so
many inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to
provide a version, obviously self-serving, which would exculpate him from any and all liability in the incident.
Against Valenzuela's corroborated claims, his allegations were neither backed up by other witnesses nor by
the circumstances proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph.
when "out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car". He
alleged that upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery. 9

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a
car traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to
react to the changing conditions of the road if he were alert - as every driver should be - to those conditions.
Driving exacts a more than usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at work,
provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.11 Li's failure to
react in a manner which would have avoided the accident could therefore have been only due to either or
both of the two factors: 1) that he was driving at a "very fast" speed as testified by Rodriguez; and 2) that
he was under the influence of alcohol.12 Either factor working independently would have diminished his
responsiveness to road conditions, since normally he would have slowed down prior to reaching Valenzuela's
car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted
with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident,
he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in
21
 front of him which was plaintiff's car, indicating, again, thereby that, indeed, he was driving very
fast, oblivious of his surroundings and the road ahead of him, because if he was not, then he could
not have missed noticing at a still far distance the parked car of the plaintiff at the right side near
the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff
who was then standing at the left rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw
the plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to show
again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could
have easily completely stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding
that the road was wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at
only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have avoided
hitting the plaintiff by the mere expedient or applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to what he
told the police immediately after the accident and is, therefore, more believable, that he did not
actually step on his brakes but simply swerved a little to the right when he saw the on-coming car
with glaring headlights, from the opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was properly
parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a little to
the right in order to safely avoid a collision with the on-coming car, considering that Aurora Blvd. is
a double lane avenue separated at the center by a dotted white paint, and there is plenty of space
for both cars, since her car was running at the right lane going towards Manila on the on-coming car
was also on its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the
next question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence
in parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to which he is required to conform for his own
protection.14 Based on the foregoing definition, the standard or act to which, according to petitioner Li,
Valenzuela ought to have conformed for her own protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is
not to be held up to the standard of conduct normally applied to an individual who is in no such situation.
The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does
not require the same standard of thoughtful and reflective care from persons confronted by unusual and
oftentimes threatening conditions.15

Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly
finds himself in a situation of danger and is required to act without much time to consider the best means
that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by
his own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to
avoid hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate
Court,18 that the driver therein, Jose Koh, "adopted the best means possible in the given situation" to avoid
hitting the children. Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he
was in the wrong lane when the collision with an oncoming truck occurred, was not guilty of negligence. 19

22
While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately
weigh a threatening situation is absent, the conduct which is required of an individual in such cases is
dictated not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by
the over-all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a
rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is
not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone
or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous for
her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-
parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists. In
the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under
the situation. As narrated by respondent court: "She stopped at a lighted place where there were people,
to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present
that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about
1 1/2 feet away, behind a Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed that Valenzuela's car was parked very close to the
sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly straddling the
sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This
fact was itself corroborated by the testimony of witness Rodriguez. 22

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the
emergency and could not be considered to have contributed to the unfortunate circumstances which
eventually led to the amputation of one of her lower extremities. The emergency which led her to park her
car on a sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken all
reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to
others."23 It is the failure to observe that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury. 24 We stressed, in Corliss vs. Manila Railroad
Company,25 that negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was
grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled into a drizzle rendering the street slippery. There is
ample testimonial evidence on record to show that he was under the influence of liquor. Under these
conditions, his chances of effectively dealing with changing conditions on the road were significantly
lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden
appearance of obstacles and persons on the highway, and of other vehicles at intersections, such as
one who sees a child on the curb may be required to anticipate its sudden dash into the street, and
his failure to act properly when they appear may be found to amount to negligence. 26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was
clearly of his own making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability
on the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with official
matters. His functions as assistant manager sometimes required him to perform work outside the
office as he has to visit buyers and company clients, but he admitted that on the night of the accident
he came from BF Homes Paranaque he did not have "business from the company" (pp. 25-26, ten,
Sept. 23, 1991). The use of the company car was partly required by the nature of his work, but the

23
 privilege of using it for non-official business is a "benefit", apparently referring to the fringe benefits
attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of their
respective duties, the basis of which liability is not respondeat superior, but the relationship of pater
familias, which theory bases the liability of the master ultimately on his own negligence and not on
that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may be held
liable for the negligence of his employee, the act or omission which caused damage must have
occurred while an employee was in the actual performance of his assigned tasks or duties (Francis
High School vs. Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done
within the scope of the employee's assigned tasks, the Supreme Court has held that this includes
any act done by an employee, in furtherance of the interests of the employer or for the account of
the employer at the time of the infliction of the injury or damage (Filamer Christian Institute vs.
Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose upon its employees
the necessary discipline called for in the performance of any act "indispensable to the business and
beneficial to their employer" (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was
authorized by the company to use the company car "either officially or socially or even bring it home",
he can be considered as using the company car in the service of his employer or on the occasion of
his functions. Driving the company car was not among his functions as assistant manager; using it
for non-official purposes would appear to be a fringe benefit, one of the perks attached to his position.
But to impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted, there
must be a showing that the damage was caused by their employees in the service of the employer
or on the occasion of their functions. There is no evidence that Richard Li was at the time of the
accident performing any act in furtherance of the company's business or its interests, or at least for
its benefit. The imposition of solidary liability against defendant Alexander Commercial Corporation
must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle
of respondeat superior, which holds the master liable for acts of the servant, but that of pater familias, in
which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father
of the family in the selection and supervision of his employees. It is up to this point, however, that our
agreement with the respondent court ends. Utilizing the bonus pater familias standard expressed in Article
2180 of the Civil Code, 28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed
undue reliance, dealt with the subject of a school and its teacher's supervision of students during an
extracurricular activity. These cases now fall under the provision on special parental authority found in Art.
218 of the Family Code which generally encompasses all authorized school activities, whether inside or
outside school premises.

Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in
relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a
showing that he exercised the diligence of a good father of the family in the selection and supervision of its
employees. Once evidence is introduced showing that the employer exercised the required amount of care in
selecting its employees, half of the employer's burden is overcome. The question of diligent supervision,
however, depends on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee
during the performance of the latter's assigned tasks would be enough to relieve him of the liability imposed
by Article 2180 in relation to Article 2176 of the Civil Code. The employer is not expected to exercise
supervision over either the employee's private activities or during the performance of tasks either
unsanctioned by the former or unrelated to the employee's tasks. The case at bench presents a situation of

24
a different character, involving a practice utilized by large companies with either their employees of
managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles.
These company cars are either wholly owned and maintained by the company itself or are subject to various
plans through which employees eventually acquire their vehicles after a given period of service, or after
paying a token amount. Many companies provide liberal "car plans" to enable their managerial or other
employees of rank to purchase cars, which, given the cost of vehicles these days, they would not otherwise
be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are companies totally absolved of responsibility when an
accident involving a company-issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests
of road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after
they are satisfied that the employee to whom the car has been given full use of the said company car for
company or private purposes will not be a threat or menace to himself, the company or to others. When a
company gives full use and enjoyment of a company car to its employee, it in effect guarantees that it is,
like every good father, satisfied that its employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-
issued car. For large companies other than those cited in the example of the preceding paragraph, the
privilege serves important business purposes either related to the image of success an entity intends to
present to its clients and to the public in general, or - for practical and utilitarian reasons - to enable its
managerial and other employees of rank or its sales agents to reach clients conveniently. In most cases,
providing a company car serves both purposes. Since important business transactions and decisions may
occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use
of a company car therefore principally serves the business and goodwill of a company and only
incidentally the private purposes of the individual who actually uses the car, the managerial employee or
company sales agent. As such, in providing for a company car for business use and/or for the purpose of
furthering the company's image, a company owes a responsibility to the public to see to it that the
managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able
to use the company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep
normal office hours as he was required quite often to perform work outside the office, visiting prospective
buyers and contacting and meeting with company clients. 30 These meetings, clearly, were not strictly
confined to routine hours because, as a managerial employee tasked with the job of representing his
company with its clients, meetings with clients were both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the
corporation - to put up the front of a highly successful entity, increasing the latter's goodwill before its
clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient
mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming
from a social visit with an officemate in Paranaque was a bare allegation which was never corroborated in
the court below. It was obviously self-serving. Assuming he really came from his officemate's place, the
same could give rise to speculation that he and his officemate had just been from a work-related function,
or they were together to discuss sales and other work related strategies.

25
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car. 31 Not having been able to overcome
the burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the
former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as
to the amount of moral damages. In the case of moral damages, while the said damages are not intended
to enrich the plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the opinion that the reduction in moral damages from an
amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified considering the nature
of the resulting damage and the predictable sequelae of the injury.

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

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

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because
it would be highly speculative to estimate the amount of psychological pain, damage and injury which goes
with the sudden severing of a vital portion of the human body. A prosthetic device, however technologically
advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.

As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount
of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -
physical and psychological - suffered by Valenzuela as a result of Li's grossly negligent driving of his
Mitsubishi Lancer in the early morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

26
G.R. No. 152040 March 31, 2006

MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-
G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal Case No. Q-93-
42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of reckless imprudence resulting
in damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias Road,
Quezon City. The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of a passenger
bus with Plate Number NCV-849. Suelto, its employee, was assigned as the regular driver of the bus. 2

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus along
Kamias Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA). The bus
suddenly swerved to the right and struck the terrace of the commercial apartment owned by Valdellon
located along Kamuning Road.3 Upon Valdellon’s request, the court ordered Sergio Pontiveros, the Senior
Building Inspection Officer of the City Engineer’s Office, to inspect the damaged terrace. Pontiveros
submitted a report enumerating and describing the damages:

(1) The front exterior and the right side concrete columns of the covered terrace were vertically
displaced from its original position causing exposure of the vertical reinforcement.

(2) The beams supporting the roof and parapet walls are found with cracks on top of the displaced
columns.

(3) The 6″ CHB walls at [the] right side of the covered terrace were found with cracks caused by this
accident.

(4) The front iron grills and concrete balusters were found totally damaged and the later [sic] beyond
repair.4

He recommended that since the structural members made of concrete had been displaced, the terrace would
have to be demolished "to keep its monolithicness, and to insure the safety and stability of the building." 5

Photographs6 of the damaged terrace were taken. Valdellon commissioned Engr. Jesus R. Regal, Jr. to
estimate the cost of repairs, inclusive of labor and painting, and the latter pegged the cost at P171,088.46.7

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded payment
of P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the terrace. 8 The
bus company and Suelto offered a P30,000.00 settlement which Valdellon refused. 9

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against Suelto.
After the requisite preliminary investigation, an Information was filed with the RTC of Quezon City. The
accusatory portion of the Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being then the
driver and/or person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did then and there

27
unlawfully, and feloniously drive, manage, and operate the same along Kamias Road, in said City, in a
careless, reckless, negligent, and imprudent manner, by then and there making the said vehicle run at a
speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to
person/s and damage to property, and considering the condition of the traffic at said place at the time,
causing as a consequence of his said carelessness, negligence, imprudence and lack of precaution, the said
vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bump a commercial
apartment belonging to ERLINDA V. VALDELLON located at No. 31 Kamias Road, this City, thereby causing
damages to said apartment in the total amount of P171,088.46, Philippine Currency, to her damage and
prejudice in the total amount aforementioned.

CONTRARY TO LAW.10

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. She prayed
that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary attachment
against the defendants upon approval of plaintiff’s bond, and after trial on the merits, to render a decision
in favor of the plaintiff, ordering the defendants, jointly and severally, to pay –

a) the total sum of P171,088.46 constituting the expenses for the repair of the damaged apartment
of plaintiff, with interests to be charged thereon at the legal rate from the date of the formal demand
until the whole obligation is fully paid;

b) the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for each appearance of
plaintiff’s counsel; and costs of suit;

PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises.11

A joint trial of the two cases was ordered by the trial court.12

The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to have it
repaired and restored to its original state. Valdellon, however, disagreed because she wanted the building
demolished to give way for the construction of a new one.13

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in support
thereof, adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by the BB
Construction and Steel Fabricator for "carpentry, masonry, welding job and electrical [work]." 14

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of the
terrace, but that the building should also be demolished because "if concrete is destroyed, [one] cannot
have it restored to its original position."15

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the terrace and
estimated the cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala Avenue,
Makati, Metro Manila. When he reached the corner of K-H Street at Kamias Road, Quezon City, a passenger
jeepney suddenly crossed from EDSA going to V. Luna and swerved to the lane occupied by the bus. Suelto
had to swerve the bus to the right upon which it hit the side front of the terrace of Valdellon’s two-door
apartment.16 Based on his estimate, the cost to the damage on the terrace of the apartment amounted
to P40,000.00.17 On cross-examination, Suelto declared that he saw the passenger jeepney when it was a
meter away from the bus. Before then, he had seen some passenger jeepneys on the right trying to overtake
one another.18
28
Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted
to P55,000.00.19

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of
reckless imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly and
severally, P150,000.00 to Valdellon, by way of actual and compensatory damages, as well as attorney’s fees
and costs of suit. The fallo of the decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of the crime
of Reckless Imprudence Resulting in Damage to Property, said accused is hereby sentenced to suffer
imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon and
against defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where both are
ordered, jointly and severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her damaged
apartment;

b. the sum of P20,000.00, as compensatory and exemplary damages;

c. the sum of P20,000.00, as attorney’s fees; and,

d. the costs of suit.

SO ORDERED.20

MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution failed to
prove Suelto’s guilt beyond reasonable doubt. They averred that the prosecution merely relied on Valdellon,
who testified only on the damage caused to the terrace of her apartment which appellants also alleged was
excessive. Appellant Suelto further alleged that he should be acquitted in the criminal case for the
prosecution’s failure to prove his guilt beyond reasonable doubt. He maintained that, in an emergency case,
he was not, in law, negligent. Even if the appellate court affirmed his conviction, the penalty of imprisonment
imposed on him by the trial court is contrary to law.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that the
appealed decision should be affirmed with modification. On Suelto’s claim that the prosecution failed to
prove his guilt for the crime of reckless imprudence resulting in damage to property, the OSG contended
that, applying the principle of res ipsa loquitur, the prosecution was able to prove that he drove the bus
with negligence and recklessness. The OSG averred that the prosecution was able to prove that Suelto’s act
of swerving the bus to the right was the cause of damage to the terrace of Valdellon’s apartment, and in
the absence of an explanation to the contrary, the accident was evidently due to appellant’s want of care.
Consequently, the OSG posited, the burden was on the appellant to prove that, in swerving the bus to the
right, he acted on an emergency, and failed to discharge this burden. However, the OSG averred that the
trial court erred in sentencing appellant to a straight penalty of one year, and recommended a penalty of
fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award for
actual damages was reduced to P100,000.00. The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo is
AFFIRMED with the modification that the sum of P150,000.00 as compensation sustained by the plaintiff-
appellee for her damaged apartment be reduced to P100,000.00 without pronouncement as to costs.

SO ORDERED.21
29
Appellants filed a Motion for Reconsideration, but the CA denied the same.22

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a) the
prosecution failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed to adduce
evidence to prove that respondent suffered actual damages in the amount of P100,000.00; and (c) the trial
court erred in sentencing petitioner Suelto to one (1) year prison term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto acted
with recklessness in swerving the bus to the right thereby hitting the terrace of private respondent’s
apartment. However, the prosecution failed to discharge its burden. On the other hand, petitioner Suelto
was able to prove that he acted in an emergency when a passenger jeepney coming from EDSA towards the
direction of the bus overtook another vehicle and, in the process, intruded into the lane of the bus.

On the second issue, petitioners insist that private respondent was able to prove only the amount
of P35,000.00 by way of actual damages; hence, the award of P100,000.00 is barren of factual basis.

On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended by the
trial court, and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.

The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines was able to prove beyond
reasonable doubt that petitioner Suelto swerved the bus to the right with recklessness, thereby causing
damage to the terrace of private respondent’s apartment. Although she did not testify to seeing the incident
as it happened, petitioner Suelto himself admitted this in his answer to the complaint in Civil Case No. Q-
93-16051, and when he testified in the trial court.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column of the
terrace of private respondent. Petitioners were burdened to prove that the damage to the terrace of private
respondent was not the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate court,
petitioners failed to prove that petitioner acted on an emergency caused by the sudden intrusion of a
passenger jeepney into the lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto’s defense that he acted on an emergency,
that is, he had to swerve the bus to the right to avoid colliding with a passenger jeep coming from EDSA
that had overtaken another vehicle and intruded into the lane of the bus. The sudden emergency rule was
enunciated by this Court in Gan v. Court of Appeals,23 thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the
best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to
adopt what subsequently and upon reflection may appear to have been a better method unless the
emergency in which he finds himself is brought about by his own negligence.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land Transportation and
Traffic Code, motorists are mandated to drive and operate vehicles on the right side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the interest of
the safety and the security of life, person or property, or because of unreasonable difficulty of operation in
compliance herewith, every person operating a motor vehicle or an animal-drawn vehicle on a highway shall
pass to the right when meeting persons or vehicles coming toward him, and to the left when overtaking
persons or vehicles going the same direction, and when turning to the left in going from one highway to
another, every vehicle shall be conducted to the right of the center of the intersection of the highway.

30
Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive the same
at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for
the traffic, the width of the highway, and of any other condition then and there existing; and no person shall
drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear
distance ahead (emphasis supplied).

In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the contrary,
it is presumed that a person driving a motor vehicle has been negligent, if at the time of mishap, he was
violating any traffic regulation." By his own admission, petitioner Suelto violated the Land Transportation
and Traffic Code when he suddenly swerved the bus to the right, thereby causing damage to the property
of private respondent.

However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory testimony
vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:

It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the commercial
apartment of Dr. Valdellon sustained heavy damage caused by the bus being driven by Suelto. "It seems
highly improbable that the said damages were not caused by a strong impact. And, it is quite reasonable to
conclude that, at the time of the impact, the bus was traveling at a high speed when Suelto tried to avoid
the passenger jeepney." Such a conclusion finds support in the decision of the Supreme Court in People vs.
Ison, 173 SCRA 118, where the Court stated that "physical evidence is of the highest order. It speaks more
eloquently than a hundred witnesses." The pictures submitted do not lie, having been taken immediately
after the incident. The damages could not have been caused except by a speeding bus. Had the accused not
been speeding, he could have easily reduced his speed and come to a full stop when he noticed the jeep.
Were he more prudent in driving, he could have avoided the incident or even if he could not avoid the
incident, the damages would have been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his testimony
in court. In the former, he stated that the reason why he swerved to the right was because he wanted to
avoid the passenger jeepney in front of him that made a sudden stop. But, in his testimony in court, he said
that it was to avoid a passenger jeepney coming from EDSA that was overtaking by occupying his lane.
Such glaring inconsistencies on material points render the testimony of the witness doubtful and shatter his
credibility. Furthermore, the variance between testimony and prior statements renders the witness
unreliable. Such inconsistency results in the loss in the credibility of the witness and his testimony as to his
prudence and diligence.

As already maintained and concluded, the severe damages sustained could not have resulted had the
accused acted as a reasonable and prudent man would. The accused was not diligent as he claims to be.
What is more probable is that the accused had to swerve to the right and hit the commercial apartment of
the plaintiff because he could not make a full stop as he was driving too fast in a usually crowded street. 24

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against the
driver of the offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for the crime charged and
his civil liabilities based thereon is, thus, futile.

On the second issue, we agree with the contention of petitioners that respondents failed to prove that the
damages to the terrace caused by the incident amounted to P100,000.00. The only evidence adduced by
respondents to prove actual damages claimed by private respondent were the summary computation of
damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB
Construction and Steel Fabricator to private respondent for P35,000.00 representing cost for carpentry

31
works, masonry, welding, and electrical works. Respondents failed to present Regal to testify on his
estimation. In its five-page decision, the trial court awarded P150,000.00 as actual damages to private
respondent but failed to state the factual basis for such award. Indeed, the trial court merely declared in
the decretal portion of its decision that the "sum of P150,000.00 as reasonable compensation sustained by
plaintiff for her damaged apartment." The appellate court, for its part, failed to explain how it arrived at the
amount of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:

With respect to the civil liability of the appellants, they contend that there was no urgent necessity to
completely demolish the apartment in question considering the nature of the damages sustained as a result
of the accident. Consequently, appellants continue, the award of P150,000.00 as compensation sustained
by the plaintiff-appellee for her damaged apartment is an unconscionable amount.

The damaged portions of the apartment in question are not disputed.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and adequate
compensation due is hereby fixed at P100,000.00.25

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable consequences
of the act or omission complained of, classified as one for the loss of what a person already possesses (daño
emergente) and the other, for the failure to receive, as a benefit, that which would have pertained to him
(lucro cesante). As expostulated by the Court in PNOC Shipping and Transport Corporation v. Court of
Appeals:26

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of,
or in recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed
to repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty.
In actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences
of the act or omission complained of. There are two kinds of actual or compensatory damages: one is the
loss of what a person already possesses (daño emergente), and the other is the failure to receive as a
benefit that which would have pertained to him (lucro cesante).27

The burden of proof is on the party who would be defeated if no evidence would be presented on either side.
The burden is to establish one’s case by a preponderance of evidence which means that the evidence, as a
whole, adduced by one side, is superior to that of the other. Actual damages are not presumed. The claimant
must prove the actual amount of loss with a reasonable degree of certainty premised upon competent proof
and on the best evidence obtainable. Specific facts that could afford a basis for measuring whatever
compensatory or actual damages are borne must be pointed out. Actual damages cannot be anchored on
mere surmises, speculations or conjectures. As the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required
to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and
on the best evidence available. The burden of proof is on the party who would be defeated if no evidence
would be presented on either side. He must establish his case by a preponderance of evidence which means
that the evidence, as a whole, adduced by one side is superior to that of the other. In other words, damages
cannot be presumed and courts, in making an award, must point out specific facts that could afford a basis
for measuring whatever compensatory or actual damages are borne.28

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the plaintiff
is entitled to their value at the time of the destruction, that is, normally, the sum of money which he would
have to pay in the market for identical or essentially similar goods, plus in a proper case, damages for the
loss of the use during the period before replacement.29

While claimants’ bare testimonial assertions in support of their claims for damages should not be discarded
altogether, however, the same should be admitted with extreme caution. Their testimonies should be viewed

32
in light of claimants’ self-interest, hence, should not be taken as gospel truth. Such assertion should be
buttressed by independent evidence. In the language of the Court:

For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount
of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare assertion,
it should be supported by independent evidence. Moreover, because he was the owner of private respondent
corporation whatever testimony he would give with regard to the value of the lost vessel, its equipment and
cargoes should be viewed in the light of his self-interest therein. We agree with the Court of Appeals that
his testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence
considering his familiarity thereto. However, we do not subscribe to the conclusion that his valuation of such
equipment, cargo, and the vessel itself should be accepted as gospel truth. We must, therefore, examine
the documentary evidence presented to support Del Rosario’s claim as regards the amount of losses. 30

An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually
incurred. It is not enough that the damage be capable of proof but must be actually proved with a reasonable
degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory
damages are borne. Private respondents merely sustained an estimated amount needed for the repair of
the roof of their subject building. What is more, whether the necessary repairs were caused only by
petitioner’s alleged negligence in the maintenance of its school building, or included the ordinary wear and
tear of the house itself, is an essential question that remains indeterminable. 31

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to the
terrace of private respondent would amount to P55,000.00.32 Accordingly, private respondent is entitled
to P55,000.00 actual damages.

We also agree with petitioner Suelto’s contention that the trial court erred in sentencing him to suffer a
straight penalty of one (1) year. This is so because under the third paragraph of Article 365 of the Revised
Penal Code, the offender must be sentenced to pay a fine when the execution of the act shall have only
resulted in damage to property. The said provision reads in full:

ART. 365. Imprudence and negligence. – Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in
its maximum period, to prision correccional in its medium period; if it would have constituted a less grave
felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise,
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if
it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be
imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages
to three times such value, but which shall in no case be less than 25 pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a
light felony.

In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the
rules prescribed in Article 64 (Emphasis supplied).

33
In the present case, the only damage caused by petitioner Suelto’s act was to the terrace of private
respondent’s apartment, costing P55,000.00. Consequently, petitioner’s contention that the CA erred in
awarding P100,000.00 by way of actual damages to private respondent is correct. We agree that private
respondent is entitled to exemplary damages, and find that the award given by the trial court, as affirmed
by the CA, is reasonable. Considering the attendant circumstances, we rule that private respondent Valdellon
is entitled to only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The joint decision of the Regional
Trial Court of Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner Suelto is sentenced to pay
a fine of P55,000.00 with subsidiary imprisonment in case of insolvency. Petitioners are ORDERED to pay to
Erlinda V. Valdellon, jointly and severally, the total amount of P55,000.00 by way of actual damages,
and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.

34
G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO
KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos.
69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983
reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and
Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled
"Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime
Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda
Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's
fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which
led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh
McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and
her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were
the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo
truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the
accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose
Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries
to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim
Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the
time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of
the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and
was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando.
When the northbound car was about (10) meters away from the southern approach of the bridge, two (2)
35
boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving
back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the
horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights
of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car
collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the
said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps"
wide — seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong
Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both
sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of
the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen
(16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps"
from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9)
"footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2) rear
tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted that he
was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January
1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of
the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of
P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as
exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the
burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No.
68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as
death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb,
P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the
sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings,
P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c) with respect
to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as
moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to
the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air
Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of
attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting
to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It
was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where
Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford
Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No.
4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion
to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was
opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio
36
Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they alleged
that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . .
. which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and
regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an
award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as
attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt
the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents
opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the
motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then
directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then
presided over by Judge Mario Castañeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando
Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de
Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered
several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang,
Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid
criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused
Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and
after applying the provisions of Article 365 of the Revised Penal Code and indeterminate
sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6)
months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day
of prision correccional as maximum; the accused is further sentenced to pay and indemnify
the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse
the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay
the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to
indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of
P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a manifestation
to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12 November 1980
and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The
dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and

against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the
plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and
37
 unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount
of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00.
The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of
proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received
on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases
Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court.
The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were
assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming
the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang
kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court;
said petition was subsequently denied. A motion for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated
its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)
38
 For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another
P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the
law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in
the selection and supervision of the latter; it was further asserted that these defendants did not allege in
their Answers the defense of having exercised the diligence of a good father of a family in selecting and
supervising the said employee.27 This conclusion of reckless imprudence is based on the following findings
of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in this
appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS
TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE
RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right
lane on the right side of the highway going to San Fernando. My father, who is
(sic) the driver of the car tried to avoid the two (2) boys who were crossing, he
blew his horn and swerved to the left to avoid hitting the two (2) boys. We
noticed the truck, he switched on the headlights to warn the truck driver, to
slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

39
 Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane
since the truck is (sic) coming, my father stepped on the brakes and all what
(sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or
(Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben
Galang did not reduce its speed before the actual impact of collision (sic) as
you narrated in this Exhibit "1," how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got
(sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34
July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants'
Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped
only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the
first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually
take the side of the person with whom they are associated at the time of the accident,
because, as a general rule, they do not wish to be identified with the person who was at fault.
Thus an imaginary bond is unconsciously created among the several persons within the same
group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness.
He did not go to the succor of the injured persons. He said he wanted to call the police
authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial
court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his
truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This
contention of appellants was completely passed sub-silencio or was not refuted by appellees
in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table
of Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-
appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped

40
 was an eleventh-hour desperate attempt to exculpate himself from imprisonment and
damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you
admitted that the road is straight and you may be able to (sic) see 500-1000
meters away from you any vehicle, you first saw that car only about ten (10)
meters away from you for the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you have (sic)
not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p.
16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because
of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as
revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to
avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to
return to his proper lane. The police investigator, Pfc. Fernando L. Nuñag, stated that he found
skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20,
t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding.
Since the skid marks were found under the truck and none were found at the rear of the
truck, the reasonable conclusion is that the skid marks under the truck were caused by the
truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an
endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away,
a very short distance to avoid a collision, and in his futile endeavor to avoid the collision he
abruptly stepped on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on
the part of the defendants in the selection of their driver or in the supervision over him.
Appellees did not allege such defense of having exercised the duties of a good father of a
family in the selection and supervision of their employees in their answers. They did not even
adduce evidence that they did in fact have methods of selection and programs of supervision.
The inattentiveness or negligence of Galang was the proximate cause of the mishap. If
Galang's attention was on the highway, he would have sighted the car earlier or at a very
safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when
a collision was already inevitable, because at the time that he entered the bridge his attention
was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items must
be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private
respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered

41
and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November
1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS
DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS,
WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS;
THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE
CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT
SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A

DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT
CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE
THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING

PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-
APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR
ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF

DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE
CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING

THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO
THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE
ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS'
DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND

GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID
AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT
ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.

42
 VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND

GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES
TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then
gave due course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly
complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-
arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict under
Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil
Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial
court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably
concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa.
The parties may have then believed, and understandably so, since by then no specific provision of law or
ruling of this Court expressly allowed such a consolidation, that an independent civil action, authorized under
Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds
as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal
impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a
multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify
the work of the trial court, or in short, attain justice with the least expense to the parties litigants, 36 would
have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two
(2) judges appreciating, according to their respective orientation, perception and perhaps even prejudice,
the same facts differently, and thereafter rendering conflicting decisions. Such was what happened in this
case. It should not, hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this
Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an
independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the
Civil Code with the criminal action subject, however, to the condition that no final judgment has been
rendered in that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to
set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to
this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as
more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil
actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be
entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33,
permitted in the same manner to be filed separately from the criminal case, may proceed
similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately
and to proceed independently even during the pendency of the latter case, the intention is

43
 patent to make the court's disposition of the criminal case of no effect whatsoever on the
separate civil case. This must be so because the offenses specified in Article 33 are of such a
nature, unlike other offenses not mentioned, that they may be made the subject of a separate
civil action because of the distinct separability of their respective juridical cause or basis of
action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should not
be considered in this appeal is the fact that private respondents were not parties therein. It would have
been entirely different if the petitioners' cause of action was for damages arising from a delict, in which case
private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In
the absence of any collusion, the judgment of conviction in the criminal case against Galang would have
been conclusive in the civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution are supported by evidence or are based on mere
speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution
of factual issues is the function of the lower courts whose findings on these matters are received with respect
and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not supported by the evidence or when the trial court
failed to consider the material facts which would have led to a conclusion different from what was stated in
its judgment. 43 The same is true where the appellate court's conclusions are grounded entirely on
conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a
misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as
the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not
supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom
are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings
of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane
of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the
car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately
concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision.
This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved
into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across
the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right
lane on the right side of the highway going to San Fernando. My father, who is
(sic) the driver of the car tried to avoid the two (2) boys who were crossing, he
blew his horn and swerved to the left to avoid hitting the two (2) boys. We
noticed the truck, he switched on the headlights to warn the truck driver, to
slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

44
 A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane
since the truck is (sic) coming, my father stepped on the brakes and all what
(sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane
of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril — death or
injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47
thus:

. . . Negligence is the omission to do something which a reasonable man, guided by those

considerations which ordinarily regulate the conduct of human affairs, would do, or the doing
of something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury." (Cooley on Torts,
Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound
rule, (W)e held:

The test by which to determine the existence of negligence in a particular case

may be stated as follows: Did the defendant in doing the alleged negligent act
use that (reasonable care and caution which an ordinarily prudent person would
have used in the same situation?) If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamiliasof the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48

We held:

. . . Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances reasonably require.
Where the danger is great, a high degree of care is necessary, and the failure to observe it is
a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35
Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would
have tried to avoid running over the two boys by swerving the car away from where they were even if this
would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take
particularly where the vehicle in the opposite lane would be several meters away and could very well slow
down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as
the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about by his own negligence." 49

45
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted
the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it
is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.
And more comprehensively, the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the
initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was
the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in
the collision had the latter heeded the emergency signals given by the former to slow down and give the
car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of
the road, which was the proper precautionary measure under the given circumstances, the truck driver
continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of
the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters,
in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters
to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially accommodated the
truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead
of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30
miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is
only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to
private respondents' claim that there was an error in the translation by the investigating officer of the truck
driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour.
The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary,
this presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner
Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial
eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben
Galang did not reduce its speed before the actual impact of collision as you
narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got
(sic) back to our right lane on side (sic) of the highway, sir. (tsn, pp. 33-34,

46
 July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31, Appellants'
Brief)54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to help
the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if
the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it
was already motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27,
Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures
and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will
not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the
person who had the last clear chance to avoid the mishap is considered in law solely responsible for the
consequences thereof.56

In Bustamante vs. Court of Appeals, 57

We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly,
is that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even though a
person's own acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the
last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts
of his opponent or that of a third person imputed to the opponent is considered in law solely
responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986,
p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiff's peril, or according to some authorities, should have been aware of it
in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff
to avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58

We ruled:

47
 The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a
claimant does not preclude a recovery for the negligence of defendant where it
appears that the latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant notwithstanding his
negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the
prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber
and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al.,
G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause
of the accident which intervenes between the accident and the more remote negligence of the
plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant
liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be
raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of
the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil
Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows
from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de
jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to
prevent the damage. Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in
any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose
this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the
trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no
sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61

the indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
48
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each
for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

49
SPOUSES DANTE CRUZ and G.R. No. 186312
LEONORA CRUZ,
Petitioners,
- versus -

SUN HOLIDAYS, INC.,

Respondent.

DECISION

CARPIO MORALES, J.:

Spouses Dante and Leonora Cruz (petitioners) lodged a Complaint on January 25, 2001 [1] against Sun
Holidays, Inc. (respondent) with the Regional Trial Court (RTC) of Pasig City for damages arising from the
death of their son Ruelito C. Cruz (Ruelito) who perished with his wife on September 11, 2000 on board the
boat M/B Coco Beach III that capsized en route to Batangas from Puerto Galera, Oriental Mindoro where
the couple had stayed at Coco Beach Island Resort (Resort) owned and operated by respondent.

The stay of the newly wed Ruelito and his wife at the Resort from September 9 to 11, 2000 was by virtue
of a tour package-contract with respondent that included transportation to and from the Resort and the
point of departure in Batangas.

Miguel C. Matute (Matute),[2] a scuba diving instructor and one of the survivors, gave his account of the
incident that led to the filing of the complaint as follows:

Matute stayed at the Resort from September 8 to 11, 2000. He was originally scheduled to leave the Resort
in the afternoon of September 10, 2000, but was advised to stay for another night because of strong winds
and heavy rains.

On September 11, 2000, as it was still windy, Matute and 25 other Resort guests including petitioners son
and his wife trekked to the other side of the Coco Beach mountain that was sheltered from the wind where
they boarded M/B Coco Beach III, which was to ferry them to Batangas.

Shortly after the boat sailed, it started to rain. As it moved farther away from Puerto Galera and into the
open seas, the rain and wind got stronger, causing the boat to tilt from side to side and the captain to step
forward to the front, leaving the wheel to one of the crew members.

50
 The waves got more unwieldy. After getting hit by two big waves which came one after the other, M/B
Coco Beach III capsized putting all passengers underwater.
The passengers, who had put on their life jackets, struggled to get out of the boat. Upon seeing the captain,
Matute and the other passengers who reached the surface asked him what they could do to save the people
who were still trapped under the boat.The captain replied Iligtas niyo na lang ang sarili niyo (Just save
yourselves).

Help came after about 45 minutes when two boats owned by Asia Divers in Sabang, Puerto Galera passed
by the capsized M/B Coco Beach III. Boarded on those two boats were 22 persons, consisting of 18
passengers and four crew members, who were brought to Pisa Island. Eight passengers, including
petitioners son and his wife, died during the incident.

At the time of Ruelitos death, he was 28 years old and employed as a contractual worker for Mitsui
Engineering & Shipbuilding Arabia, Ltd. in Saudi Arabia, with a basic monthly salary of $900.[3]
Petitioners, by letter of October 26, 2000,[4] demanded indemnification from respondent for the death of
their son in the amount of at least P4,000,000.

Replying, respondent, by letter dated November 7, 2000,[5] denied any responsibility for the incident which
it considered to be a fortuitous event. It nevertheless offered, as an act of commiseration, the amount
of P10,000 to petitioners upon their signing of a waiver.

As petitioners declined respondents offer, they filed the Complaint, as earlier reflected, alleging that
respondent, as a common carrier, was guilty of negligence in allowing M/B Coco Beach III to sail
notwithstanding storm warning bulletins issued by the Philippine Atmospheric, Geophysical and Astronomical
Services Administration (PAGASA) as early as 5:00 a.m. of September 11, 2000.[6]

In its Answer,[7] respondent denied being a common carrier, alleging that its boats are not available to the
general public as they only ferry Resort guests and crew members. Nonetheless, it claimed that it exercised
the utmost diligence in ensuring the safety of its passengers; contrary to petitioners allegation, there was
no storm on September 11, 2000 as the Coast Guard in fact cleared the voyage; and M/B Coco Beach III was
not filled to capacity and had sufficient life jackets for its passengers. By way of Counterclaim, respondent
alleged that it is entitled to an award for attorneys fees and litigation expenses amounting to not less
than P300,000.

Carlos Bonquin, captain of M/B Coco Beach III, averred that the Resort customarily requires four conditions
to be met before a boat is allowed to sail, to wit: (1) the sea is calm, (2) there is clearance from the Coast
Guard, (3) there is clearance from the captain and (4) there is clearance from the Resorts assistant
manager.[8] He added that M/B Coco Beach III met all four conditions on September 11, 2000,[9] but

51
a subasco or squall, characterized by strong winds and big waves, suddenly occurred, causing the boat to
capsize.[10]
By Decision of February 16, 2005,[11] Branch 267 of the Pasig RTC dismissed petitioners Complaint and
respondents Counterclaim.

Petitioners Motion for Reconsideration having been denied by Order dated September 2, 2005,[12] they
appealed to the Court of Appeals.

By Decision of August 19, 2008,[13] the appellate court denied petitioners appeal, holding, among
other things, that the trial court correctly ruled that respondent is a private carrier which is only required to
observe ordinary diligence; that respondent in fact observed extraordinary diligence in transporting its
guests on board M/B Coco Beach III; and that the proximate cause of the incident was a squall, a fortuitous
event.

Petitioners Motion for Reconsideration having been denied by Resolution dated January 16, 2009,[14] they
filed the present Petition for Review.[15]

Petitioners maintain the position they took before the trial court, adding that respondent is a common
carrier since by its tour package, the transporting of its guests is an integral part of its resort business. They
inform that another division of the appellate court in fact held respondent liable for damages to the other
survivors of the incident.

Upon the other hand, respondent contends that petitioners failed to present evidence to prove that it is a
common carrier; that the Resorts ferry services for guests cannot be considered as ancillary to its business
as no income is derived therefrom; that it exercised extraordinary diligence as shown by the conditions it
had imposed before allowing M/B Coco Beach III to sail; that the incident was caused by a fortuitous event
without any contributory negligence on its part; and that the other case wherein the appellate court held it
liable for damages involved different plaintiffs, issues and evidence.[16]

The petition is impressed with merit.

Petitioners correctly rely on De Guzman v. Court of Appeals[17] in characterizing respondent as a common

carrier.

The Civil Code defines common carriers in the following terms:

Article 1732. Common carriers are persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air for compensation, offering their services to the
public.

52
 The above article makes no distinction between one whose principal
business activity is the carrying of persons or goods or both, and one who does such
carrying only as an ancillary activity (in local idiom, as a sideline). Article 1732 also
carefully avoids making any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis and one offering such service on
an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish
between a carrier offering its services to the general public, i.e., the general community
or population, and one who offers services or solicits business only from a narrow segment
of the general population. We think that Article 1733 deliberately refrained from making
such distinctions.

So understood, the concept of common carrier under Article 1732 may be seen to coincide
neatly with the notion of public service, under the Public Service Act (Commonwealth Act No.
1416, as amended) which at least partially supplements the law on common carriers set forth
in the Civil Code. Under Section 13, paragraph (b) of the Public Service Act, public service
includes:

. . . every person that now or hereafter may own, operate, manage, or control
in the Philippines, for hire or compensation, with general or limited clientele,
whether permanent, occasional or accidental, and done for general business
purposes, any common carrier, railroad, street railway, traction railway,
subway motor vehicle, either for freight or passenger, or both, with or without
fixed route and whatever may be its classification, freight or carrier service of
any class, express service, steamboat, or steamship line, pontines, ferries and
water craft, engaged in the transportation of passengers or freight or both,
shipyard, marine repair shop, wharf or dock, ice plant, ice-refrigeration plant,
canal, irrigation system, gas, electric light, heat and power, water supply and
power petroleum, sewerage system, wire or wireless communications systems,
wire or wireless broadcasting stations and other similar public services . .
.[18] (emphasis and underscoring supplied.)

Indeed, respondent is a common carrier. Its ferry services are so intertwined with its main business
as to be properly considered ancillary thereto. The constancy of respondents ferry services in its resort
operations is underscored by its having its own Coco Beach boats. And the tour packages it offers, which
include the ferry services, may be availed of by anyone who can afford to pay the same. These services are
thus available to the public.

That respondent does not charge a separate fee or fare for its ferry services is of no moment. It
would be imprudent to suppose that it provides said services at a loss. The Court is aware of the practice of
beach resort operators offering tour packages to factor the transportation fee in arriving at the tour package
price. That guests who opt not to avail of respondents ferry services pay the same amount is likewise
inconsequential. These guests may only be deemed to have overpaid.

As De Guzman instructs, Article 1732 of the Civil Code defining common carriers has deliberately refrained
from making distinctions on whether the carrying of persons or goods is the carriers principal business,
whether it is offered on a regular basis, or whether it is offered to the general public. The intent of the law
is thus to not consider such distinctions. Otherwise, there is no telling how many other distinctions may be

53
concocted by unscrupulous businessmen engaged in the carrying of persons or goods in order to avoid the
legal obligations and liabilities of common carriers.

Under the Civil Code, common carriers, from the nature of their business and for reasons of public policy,
are bound to observe extraordinary diligence for the safety of the passengers transported by them,
according to all the circumstances of each case.[19] They are bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard
for all the circumstances.[20]

When a passenger dies or is injured in the discharge of a contract of carriage, it is presumed that
the common carrier is at fault or negligent. In fact, there is even no need for the court to make an express
finding of fault or negligence on the part of the common carrier. This statutory presumption may only be
overcome by evidence that the carrier exercised extraordinary diligence.[21]

Respondent nevertheless harps on its strict compliance with the earlier mentioned conditions of voyage
before it allowed M/B Coco Beach III to sail on September 11, 2000. Respondents position does not impress.

The evidence shows that PAGASA issued 24-hour public weather forecasts and tropical cyclone warnings for
shipping on September 10 and 11, 2000 advising of tropical depressions in Northern Luzon which would also
affect the province of Mindoro.[22] By the testimony of Dr. Frisco Nilo, supervising weather specialist of
PAGASA, squalls are to be expected under such weather condition.[23]

A very cautious person exercising the utmost diligence would thus not brave such stormy weather and put
other peoples lives at risk. The extraordinary diligence required of common carriers demands that they take
care of the goods or lives entrusted to their hands as if they were their own. This respondent failed to do.

Respondents insistence that the incident was caused by a fortuitous event does not impress either.
The elements of a "fortuitous event" are: (a) the cause of the unforeseen and unexpected occurrence, or
the failure of the debtors to comply with their obligations, must have been independent of human will; (b)
the event that constituted the caso fortuitomust have been impossible to foresee or, if foreseeable,
impossible to avoid; (c) the occurrence must have been such as to render it impossible for the debtors to
fulfill their obligation in a normal manner; and (d) the obligor must have been free from any participation
in the aggravation of the resulting injury to the creditor.[24]

54
To fully free a common carrier from any liability, the fortuitous event must have been the proximate and
only cause of the loss. And it should have exercised due diligence to prevent or minimize the loss before,
during and after the occurrence of the fortuitous event.[25]

Respondent cites the squall that occurred during the voyage as the fortuitous event that overturned M/B
Coco Beach III. As reflected above, however, the occurrence of squalls was expected under the weather
condition of September 11, 2000. Moreover, evidence shows that M/B Coco Beach III suffered engine
trouble before it capsized and sank.[26] The incident was, therefore, not completely free from human
intervention.

The Court need not belabor how respondents evidence likewise fails to demonstrate that it exercised due
diligence to prevent or minimize the loss before, during and after the occurrence of the squall.

Article 1764[27] vis--vis Article 2206[28] of the Civil Code holds the common carrier in breach of its
contract of carriage that results in the death of a passenger liable to pay the following: (1) indemnity for
death, (2) indemnity for loss of earning capacity and (3) moral damages.

Petitioners are entitled to indemnity for the death of Ruelito which is fixed at P50,000.[29]

As for damages representing unearned income, the formula for its computation is:

Net Earning Capacity = life expectancy x (gross annual income - reasonable and
necessary living expenses).

Life expectancy is determined in accordance with the formula:

2 / 3 x [80 age of deceased at the time of death][30]

The first factor, i.e., life expectancy, is computed by applying the formula (2/3 x [80 age at death])
adopted in the American Expectancy Table of Mortality or the Actuarial of Combined Experience Table of
Mortality.[31]
The second factor is computed by multiplying the life expectancy by the net earnings of the
deceased, i.e., the total earnings less expenses necessary in the creation of such earnings or income and
less living and other incidental expenses.[32] The loss is not equivalent to the entire earnings of the deceased,
but only such portion as he would have used to support his dependents or heirs. Hence, to be deducted
from his gross earnings are the necessary expenses supposed to be used by the deceased for his own
needs.[33]

55
 In computing the third factor necessary living expense, Smith Bell Dodwell Shipping Agency Corp. v.
Borja[34] teaches that when, as in this case, there is no showing that the living expenses constituted the
smaller percentage of the gross income, the living expenses are fixed at half of the gross income.

Applying the above guidelines, the Court determines Ruelito's life expectancy as follows:

Life expectancy = 2/3 x [80 - age of deceased at the time of death]

2/3 x [80 - 28]

2/3 x [52]

Life expectancy = 35

Documentary evidence shows that Ruelito was earning a basic monthly salary of $900 [35] which,
when converted to Philippine peso applying the annual average exchange rate of $1 = P44 in
2000,[36] amounts to P39,600. Ruelitos net earning capacity is thus computed as follows:

Net Earning Capacity = life expectancy x (gross annual income -

reasonable and necessary living expenses).

= 35 x (P475,200 - P237,600)
= 35 x (P237,600)

Net Earning Capacity = P8,316,000

Respecting the award of moral damages, since respondent common carriers breach of contract of
carriage resulted in the death of petitioners son, following Article 1764 vis--vis Article 2206 of the Civil
Code, petitioners are entitled to moral damages.

Since respondent failed to prove that it exercised the extraordinary diligence required of common
carriers, it is presumed to have acted recklessly, thus warranting the award too of exemplary damages,
which are granted in contractual obligations if the defendant acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner.[37]

Under the circumstances, it is reasonable to award petitioners the amount of P100,000 as moral
damages and P100,000 as exemplary damages.[38]

56
 Pursuant to Article 2208[39] of the Civil Code, attorney's fees may also be awarded where exemplary
damages are awarded. The Court finds that 10% of the total amount adjudged against respondent is
reasonable for the purpose.

Finally, Eastern Shipping Lines, Inc. v. Court of Appeals[40] teaches that when an obligation,
regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the
contravenor can be held liable for payment of interest in the concept of actual and compensatory damages,
subject to the following rules, to wit

1. When the obligation is breached, and it consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the interest due should be that which may have been
stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the
time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12%
per annum to be computed from default, i.e., from judicial or extrajudicial demand under and
subject to the provisions of Article 1169 of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached,

an interest on the amount of damages awarded may be imposed at the discretion of the court
at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims
or damages except when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty, the interest shall
begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code)
but when such certainty cannot be so reasonably established at the time the demand is made,
the interest shall begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been reasonably ascertained).
The actual base for the computation of legal interest shall, in any case, be on the amount
finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph
2, above, shall be 12% per annum from such finality until its satisfaction, this interim period
being deemed to be by then an equivalent to a forbearance of credit. (emphasis supplied).

Since the amounts payable by respondent have been determined with certainty only in the present petition,
the interest due shall be computed upon the finality of this decision at the rate of 12% per annum until
satisfaction, in accordance with paragraph number 3 of the immediately cited guideline in Easter Shipping
Lines, Inc.

WHEREFORE, the Court of Appeals Decision of August 19, 2008 is REVERSED and SET ASIDE. Judgment
is rendered in favor of petitioners ordering respondent to pay petitioners the following: (1) P50,000 as
indemnity for the death of Ruelito Cruz; (2) P8,316,000 as indemnity for Ruelitos loss of earning capacity;
(3) P100,000 as moral damages; (4) P100,000 as exemplary damages; (5) 10% of the total amount
adjudged against respondent as attorneys fees; and (6) the costs of suit.

57
The total amount adjudged against respondent shall earn interest at the rate of 12% per annum computed
from the finality of this decision until full payment.

SO ORDERED.

58
G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners,

vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.

The Solicitor General for plaintiff-appellee.

Ponciano G. Hernandez for private respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to
set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-
931 which reversed the Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court)
of Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin Chavez jointly and
severally liable to the private respondents for actual and moral damages, litigation expenses and attorney's
fees.

This present controversy traces its beginnings to four (4) separate complaints2 for damages filed against
the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought
to recover actual and other damages for the loss of lives and the destruction to property caused by the
inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The flooding was purportedly caused
by the negligent release by the defendants of water through the spillways of the Angat Dam (Hydroelectric
Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained
a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant
Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants'
knowledge, as early as 24 October 1978, of the impending entry of typhoon "Kading," they failed to exercise
due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the
maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly
opened three (3) of the dam's spillways, thereby releasing a large amount of water which inundated the
banks of the Angat River; and 5) as a consequence, members of the household of the plaintiffs, together
with their animals, drowned, and their properties were washed away in the evening of 26 October and the
early hours of 27 October 1978.3

In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence
and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence
of a good father in the selection of its employees; 3) written notices were sent to the different municipalities
of Bulacan warning the residents therein about the impending release of a large volume of water with the
onset of typhoon "Kading" and advise them to take the necessary precautions; 4) the water released during
the typhoon was needed to prevent the collapse of the dam and avoid greater damage to people and
property; 5) in spite of the precautions undertaken and the diligence exercised, they could still not contain
or control the flood that resulted and; 6) the damages incurred by the private respondents were caused by
a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. By way
of special affirmative defense, the defendants averred that the NPC cannot be sued because it performs a
purely governmental function.4

Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a result
thereof, the trial court dismissed the complaints as against the NPC on the ground that the provision of its
charter allowing it to sue and be sued does not contemplate actions based on tort. The parties do not,
however, dispute the fact that this Court overruled the trial court and ordered the reinstatement of the
complaints as against the NPC.5

59
Being closely interrelated, the cases were consolidated and trial thereafter ensued.

The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of sufficient and
credible evidence."6 Consequently, the private respondents seasonably appealed therefrom to the
respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93.

In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision
and awarded damages in favor of the private respondents. The dispositive portion of the decision reads:

CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED
and SET ASIDE, and a new one is hereby rendered:

1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally,
plaintiffs-appellants, with legal interest from the date when this decision shall become final
and executory, the following:

A. Actual damages, to wit:

1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty
Pesos (P231,260.00);

2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos

(P204.500.00);

3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);

4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos

(P147,000.00);.

5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two
Pesos and Fifty Centavos (P143,552.50);

6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00);

7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);

8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and

B. Litigation expenses of Ten Thousand Pesos (P10,000.00);

2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally,
plaintiff-appellant, with legal interest from the date when this decision shall have become final
and executory, the following :

A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);.

B. Moral damages of five hundred Thousand Pesos (P500,000.00); and.

C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.

3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with
legal interest from the date when this decision shall have become final and executory;

60
 A. Plaintiff-appellant Angel C. Torres:

1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos
(P199,120.00);

2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);

B. Plaintiff-appellant Norberto Torres:

1) Actual damages of Fifty Thousand Pesos (P50,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Rodelio Joaquin:

1) Actual damages of One Hundred Thousand Pesos (P100,000.00);

2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and

D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);

4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with
legal interest from the date when this decision shall have become final and executory :

A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:

1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos
(P256,600.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

B. Plaintiff-appellant Consolacion Guzman :

1) Actual damages of One Hundred forty Thousand Pesos (P140,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Virginia Guzman :

1) Actual damages of Two Hundred Five Hundred Twenty Pesos (205,520.00);

and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).

In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and
severally, plaintiffs-appellants attorney fees in an amount equivalent to 15% of the total
amount awarded.

No pronouncement as to costs.7

The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of:

61
 . . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the
management and operation of Angat Dam. The unholiness of the hour, the extent of the
opening of the spillways, And the magnitude of the water released, are all but products of
defendants-appellees' headlessness, slovenliness, and carelessness. The resulting flash flood
and inundation of even areas (sic) one (1) kilometer away from the Angat River bank would
have been avoided had defendants-appellees prepared the Angat Dam by maintaining in the
first place, a water elevation which would allow room for the expected torrential rains.8

This conclusion, in turn, is anchored on its findings of fact, to wit:

As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and
imminent danger posed by typhoon "Kading". For as alleged by defendants-appellees
themselves, the coming of said super typhoon was bannered by Bulletin Today, a newspaper
of national circulation, on October 25, 1978, as "Super Howler to hit R.P." The next day,
October 26, 1978, said typhoon once again merited a headline in said newspaper as "Kading's
Big Blow expected this afternoon" (Appellee's Brief, p. 6). Apart from the newspapers,
defendants-appellees learned of typhoon "Kading' through radio announcements (Civil Case
No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).

Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum
headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-
6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247, Exhibit "G-6").

Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation

even beyond its maximum and safe level, thereby giving no sufficient allowance for the
reservoir to contain the rain water that will inevitably be brought by the coming typhoon.

On October 24, 1978, before typhoon "Kading" entered the Philippine area of responsibility,
water elevation ranged from 217.61 to 217.53, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon "Kading" entered the
Philippine area of responsibility, and public storm signal number one was hoisted over Bulacan
at 10:45 a.m., later raised to number two at 4:45 p.m., and then to number three at 10:45
p.m., water elevation ranged from 217.47 to 217.57, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 26, 1978, when public storm signal number three
remained hoisted over Bulacan, the water elevation still remained at its maximum level of
217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2 meters, until
at or about midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly
to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978,
releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27,
1978, water elevation remained at a range of 218.30 to 217.05 (Civil Case No. SM-950,
Exhibits "D" and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil Case No. SM-
951, Exhibits "H" and "H-1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM
1247, Exhibits "F" and "F-1").

xxx xxx xxx

From the mass of evidence extant in the record, We are convinced, and so hold that the flash
flood on October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic)
suddenly and simultaneously released from the Angat Dam by defendants-appellees,
particularly from midnight of October 26, 1978 up to the morning hours of October 27,
1978.9

The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to
the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 which read:

62
 TO ALL CONCERN (sic):

Please be informed that at present our reservoir (dam) is full and that we have been releasing
water intermittently for the past several days.

With the coming of typhoon "Rita" (Kading) we expect to release greater (sic) volume of
water, if it pass (sic) over our place.

In view of this kindly advise people residing along Angat River to keep alert and stay in safe
places.

BENJA
MIN L.
CHAVE
Z
Power
Plant
Superi
ntende
nt10

because:

Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by defendants-
appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12).

Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the
spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare
or warn the persons so served, for the volume of water to be released, which turned out to
be of such magnitude, that residents near or along the Angat River, even those one (1)
kilometer away, should have been advised to evacuate. Said notice, addressed "TO ALL
CONCERN (sic)," was delivered to a policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit
"2-A") for the municipality of Norzagaray. Said notice was not thus addressed and delivered
to the proper and responsible officials who could have disseminated the warning to the
residents directly affected. As for the municipality of Sta. Maria, where plaintiffs-appellants in
Civil Case No. SM-1246 reside, said notice does not appear to have been served.11

Relying on Juan F. Nakpil & Sons vs. Court of Appeals,12 public respondent rejected the petitioners' plea that
the incident in question was caused by force majeure and that they are, therefore, not liable to the private
respondents for any kind of damage — such damage being in the nature of damnum absque injuria.

The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by
the public respondents,13 were denied by the public respondent in its Resolution of 27 December 1991. 14

Petitioners thus filed the instant petition on 21 February 1992.

After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by
the petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their
respective Memoranda,15 which they subsequently complied with.

The petitioners raised the following errors allegedly committed by the respondent Court :

I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V. COURT
OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE.
63
 II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF WARNING
ISSUED BY PETITIONERS WERE INSUFFICIENT.

III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY PRIVATE
RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.

IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF

PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION.16

These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation,
et al., vs. Court of Appeals, et al.,17 which this Court decided on 3 July 1992. The said case involved the
very same incident subject of the instant petition. In no uncertain terms, We declared therein that the
proximate cause of the loss and damage sustained by the plaintiffs therein — who were similarly situated
as the private respondents herein — was the negligence of the petitioners, and that the 24 October 1978
"early warning notice" supposedly sent to the affected municipalities, the same notice involved in the case
at bar, was insufficient. We thus cannot now rule otherwise not only because such a decision binds this
Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October
1978 which resulted in the loss of lives and the destruction to property in both cases, but also because of
the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties
in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that
indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence
in the management and operation of Angat Dam," and that "the extent of the opening of the spillways, and
the magnitude of the water released, are all but products of defendants-appellees' headlessness,
slovenliness, and carelessness."18 Its findings and conclusions are biding upon Us, there being no showing
of the existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are
conclusive upon this Court.19 Elsewise stated, the challenged decision can stand on its own merits
independently of Our decision in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in
the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as far as the concurrent
liability of an obligor in the case of force majeure is concerned. In the Nakpil case, We held:

To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an
obligation due to an "act of God," the following must concur: (a) the cause of the breach of
the obligation must be independent of the will of the debtor; (b) the event must be either
unforseeable or unavoidable; (c) the event must be such as to render it impossible for the
debtor to fulfill his obligation in a moral manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the creditor. (Vasquez v. Court of Appeals,
138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA
527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil.
657).

Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
corresponding fraud, negligence, delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss
or damage, the obligor cannot escape liability.

The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and all human agencies are to be excluded
from creating or entering into the cause of the mischief. When the effect, the cause of which
is to be considered, is found to be in part the result of the participation of man, whether it be
from active intervention or neglect, or failure to act, the whole occurrence is thereby
humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus
Juris, pp. 1174-1175).

Thus it has been held that when the negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from liability by showing that the immediate

64
 cause of the damage was the act of God. To be exempt from liability for loss because of an
act of God, he must be free from any previous negligence or misconduct by which that loss
or damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129;
Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594,
604; Lasam v. Smith, 45 Phil. 657). 21

Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the
loss or damage sustained by private respondents since they, the petitioners, were guilty of negligence. The
event then was not occasioned exclusively by an act of God or force majeure; a human factor — negligence
or imprudence — had intervened. The effect then of the force majeure in question may be deemed to have,
even if only partly, resulted from the participation of man. Thus, the whole occurrence was thereby
humanized, as it were, and removed from the laws applicable to acts of God.

WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of
the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners.

SO ORDERED.

65
[G.R. No. 107968. October 30, 1996]
ELIAS S. CIPRIANO and/or E.S. CIPRIANO ENTERPRISES, petitioner, vs. THE COURT OF APPEALS
and MACLIN ELECTRONICS, INC., respondents.

DECISION
MENDOZA, J.:

This is a petition for review of the decision [1] of the Court of Appeals in CA-G.R. CV No. 36045 which
affirmed in toto the decision of Branch 58[2] of the Quezon City Regional Trial Court, ordering the petitioner
to pay P252,155.00 to private respondent for the loss of the latters vehicle while undergoing rustproofing
and P10,000.00 in attorneys fees.
The facts of the case are as follows:
Petitioner Elias S. Cipriano is the owner of E.S. Cipriano Enterprises, which is engaged in the rustproofing
of vehicles, under the style Motobilkote. On April 30, 1991, private respondent Maclin Electronics, Inc.,
through an employee, brought a 1990 model Kia Pride Peoples car to petitioners shop for rustproofing. The
car had been purchased the year before from the Integrated Auto Sales, Inc. for P252,155.00.
The vehicle was received in the shop under Job Order No. 123581, [3] which showed the date it was
received for rustproofing as well its condition at the time. Neither the time of acceptance nor the hour of
release, however, was specified. According to the petitioner, the car was brought to his shop at 10 oclock in
the morning of April 30, 1991 and was ready for release later that afternoon, as it took only six hours to
complete the process of rustproofing.
In the afternoon of May 1, 1991, fire broke out at the Lambat restaurant, which petitioner also owned,
adjoining his Mobilkote rustproofing shop. The fire destroyed both the shop and the restaurant, including
private respondents Kia Pride. The car had been kept inside the building, allegedly to protect it from
theft. Petitioner claimed that despite efforts to save the vehicle, there was simply not enough time to get it
out of the building, unlike three other cars which had been saved because they were parked near the
entrance of the garage.[4]
On May 8 1991, private respondent sent a letter to petitioner, demanding reimbursement for the value
of the Kia Pride. In reply, petitioner denied liability on the ground that the fire was a fortuitous event. This
prompted private respondent to bring this suit for the value of its vehicle and for damages against
petitioner. Private respondent alleged that its vehicle was lost due to the negligence and imprudence of the
petitioner, citing petitioners failure to register his business with the Department of Trade and Industry under
P.D. No. 1572 and to insure it as required in the rules implementing the Decree.[5]
In his Answer, petitioner invoked Art. 1174 of the Civil Code and denied liability for the loss which he
alleged was due to a fortuitous event. He later testified that he employed an electrician who regularly
inspected the lighting in his restaurant and rustproofing shop.In addition, he claimed he had installed fire-
fighting devices and that the fire was an accident entirely independent of his will and devoid of any
negligence on his part. He further averred that private respondents car was ready for release as early as
afternoon of April 30, 1991, and that it was private respondents delay in claiming it that was the cause of
the loss.
Petitioner explained that rustproofing involved spraying asphalt-like materials underneath motor vehicle
so that rust will not corrode its body and that the materials and chemicals used for this purpose are not
inflammable. Therefore, he could not be made to assume the risk of loss due to fire. He also claimed that
he was not required to register his business with the Department of Trade and Industry, because he was
not covered by P.D. No. 1572.
On the other hand, private respondent argued that petitioner was liable for the loss of the car even if it
was caused by a fortuitous event. It contended that the nature of petitioners business required him to
assume the risk because under P.D. No. 1572, petitioner was required to insure his property as well as those
of his customers.

66
 The trial court sustained the private respondents contention that the failure of defendant to comply with
P.D. No. 1572 is in effect a manifest act of negligence which renders defendant [petitioner herein] liable for
the loss of the car even if the same was caused by fire, [6] even as it ruled that the business of rustproffing
is definitely covered by P.D. No. 1572. Since petitioner did not register his business and insure it, he must
bear the cost of loss of his customers. As already noted, the court ordered petitioner to pay private
respondent P252,155.00 with interest at 6% per annum from the filing of the case and attorneys fees in the
amount of P10,000.00.
On appeal, the decision was affirmed. The Court of Appeals ruled that the provisions of the Civil Code
relied upon by the petitioner are not applicable to this case, and that the law applicable to the case is P.D.
No. 1572, the purpose of which is to protect customers who entrust their properties to service and repair
enterprises. The Court of Appeals held that by virtue of the provisions of P.D. No. 1572 and its implementing
rules and regulations which require fire insurance coverage prior to accreditation, owners of service and
repair enterprises assume the risk of loss of their customers property. The appellate court stated:
Defendant-appellant was operating the business of rustproofing of cars and other motor vehicles
illegally at the time of the fire in question; i.e., without the necessary accreditation and license
from the Department of Trade and Industry, and it is for this reason that it did not carry at least
a fire insurance coverage to protect the vehicles entrusted to it by its customers. Therefore, it
must bear the consequences of such illegal operation, including the risk of losses or injuries to the
vehicles of its customers brought by unforeseen or fortuitous events like the fire that gutted its
shop and completely burned appellees car while said vehicle was in its possession. [7]
The Court of Appeals also affirmed the award of attorneys fees, ruling that although the lower court did
not expressly and specifically state the reason for the award, the basis therefor could be inferred from the
finding that petitioner unjustly refused to pay private respondents valid and demandable claim. Said the
appellate court:
Such wanton, reckless, and illegal operation of appellants business resulted in appellees lack of
protection from the fire that gutted appellants shop and which completely burned its car while in
appellants possession for rustproofing. Yet appellant adamantly and stubbornly refused to pay
appellee the value of its lost car. It was, therefore, correctly ordered by the court a quo to pay
appellee reasonable attorneys fees as it had unjustly and unreasonably refused to satisfy the
latters plainly valid, just, and demandable claim, compelling said appellee to file this action to
protect its interest (Art. 2208, pars. (2) and (5), New Civil Code).[8]
Hence, this appeal. Petitioner contends that the fire which destroyed private respondents car was a
fortuitous event for which he cannot be held responsible. In support of his argument, he cites the following
provisions of the Civil Code:

ART. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were inevitable.

ART. 1262. An obligation which consists in the delivery of a determinate thing shall be extinguished if it
should be lost or destroyed without the fault of the debtor, and before he has incurred in delay.

When by law or stipulation, the obligor is liable even for fortuitous events, the loss of the thing does not
extinguish the obligation, and he shall be responsible for damages. The same rule applies when the nature
of the obligation requires the assumption of risk.

The contention is without merit. The issue in this case is whether petitioner was required to insure his
business and the vehicles received by him in the course of his business and, if so, whether his failure to do
so constituted negligence, rendering him liable for loss due to the risk required to be insured against. We
hold that both questions must be answered in the affirmative.
We have already held that violation of a statutory duty is negligence per se. In F.F. Cruz and Co., Inc.
v. Court of Appeals,[9] we held the owner of a furniture shop liable for the destruction of the plaintiffs house

67
in a fire which started in his establishment in view of his failure to comply with an ordinance which required
the construction of a firewall. In Teague v. Fernandez,[10] we stated that where the very injury which was
intended to be prevented by the ordinance has happened, non-compliance with the ordinance was not only
an act negligence, but also the proximate cause of the death.
Indeed, the existence of a contract between petitioner and private respondent does not bar a finding of
negligence under the principles of quasi-delict, as we recently held in Fabre v. Court of
Appeals.[11] Petitioner's negligence is the source of his obligation. He is not being held liable for breach of
his contractual obligation due to negligence but for his negligence in not complying with a duty imposed on
him by law. It is therefore immaterial that the loss occasioned to private respondent was due to a fortuitous
event, since it was petitioners negligence in not insuring against the risk which was the proximate cause of
the loss.
Thus, P.D. No. 1572, 1 requires service and repair enterprises for motor vehicles, like that of petitioners
to register with the Department of Trade and Industry. As condition for such registration or accreditation,
Ministry Order No. 32 requires covered enterprises to secure insurance coverage. Rule III of this Order
provides in pertinent parts:[12]

1- REQUIREMENTS FOR ACCREDITATION

1) Enterprises applying for original accreditation shall submit the following:

1.1. List of machineries/equipment/tools in useful condition;

1.2. List of certified engineers/accredited technicians mechanics with their personal data;

1.3. Copy of Insurance Policy of the shop covering the property entrusted by its customer for repair,
service or maintenance together with a copy of the official receipt covering the full payment of
premium;

1.4. Copy of Bond referred to under Section 7, Rule III of this Rules and Regulations;

1.5. Written service warranty in the form prescribed by the Bureau;

1.6. Certificate issued by the Securities and Exchange Commission and Articles of Incorporation or
Partnership in case of corporation or partnership;

1.7. Such other additional documents which the Director may require from time to time.

8 - INSURANCE POLICY

The insurance policy for the following risks like theft, pilferage, fire, flood and loss should cover exclusively
the machines, motor vehicles, heavy equipment, engines, electronics, electrical, airconditioners,
refrigerators, office machines and data processing equipment, medical and dental equipment, other
consumer mechanical and industrial equipment stored for repair and/or service in the premises of the
applicant.

There is thus a statutory duty imposed on petitioner and it is for his failure to comply with this duty that
he was guilty of negligence rendering him liable for damages to private respondent. While the fire in this
case may be considered a fortuitous event,[13] this circumstance cannot exempt petitioner from liability for
loss.
We think, however, that the Court of Appeals erred in sustaining the award of attorneys fees by the
lower court. It is now settled that the reasons or grounds for an award of attorneys fees must be set forth
in the decision of the court.[14] They cannot be left to inference as the appellate court held in this case. The
reason for this is that it is not sound policy to penalize the right to litigate. An award of attorneys fees, being
68
an exception to this policy and limited to the grounds enumerated in the law, [15] must be fully justified in
the decision. It can not simply be inserted as an item of recoverable damages in the judgment of the
court. Since in this case there is no justification for the award of attorneys fees in the decision of the trial
court, it was error for the Court of Appeals to sustain such award.
WHEREFORE, the decision, dated November 18, 1992, of the Court of Appeals is AFFIRMED, with the
modification that the award of attorneys fees is DELETED.
SO ORDERED.

69
G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,

vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE MABLE
and children DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and
BERNARDO all surnamed MABLE, respondents.

Luis S. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the application of the common law
doctrine of res ipsa loquitur.

The essential facts of the case are not disputed.

The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the residence of
private respondents. Sometime in August 1971, private respondent Gregorio Mable first approached Eric
Cruz, petitioner's plant manager, to request that a firewall be constructed between the shop and private
respondents' residence. The request was repeated several times but they fell on deaf ears. In the early
morning of September 6, 1974, fire broke out in petitioner's shop. Petitioner's employees, who slept in the
shop premises, tried to put out the fire, but their efforts proved futile. The fire spread to private respondents'
house. Both the shop and the house were razed to the ground. The cause of the conflagration was never
discovered. The National Bureau of Investigation found specimens from the burned structures negative for
the presence of inflammable substances.

Subsequently, private respondents collected P35,000.00 on the insurance on their house and the contents
thereof.

On January 23, 1975, private respondents filed an action for damages against petitioner, praying for a
judgment in their favor awarding P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and costs. The Court of First Instance
held for private respondents:

WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against the
defendant:

1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for damages
suffered by said plaintiffs for the loss of their house, with interest of 6% from the date of the
filing of the Complaint on January 23, 1975, until fully paid;

2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss of
plaintiffs' furnitures, religious images, silverwares, chinawares, jewelries, books, kitchen
utensils, clothing and other valuables, with interest of 6% from date of the filing of the
Complaint on January 23, 1975, until fully paid;

3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral damages,
P2,000.00 as exemplary damages, and P5,000.00 as and by way of attorney's fees;

70
 4. With costs against the defendant;

5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo, pp. 29-
30.]

On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the decision of
the trial court but reduced the award of damages:

WHEREFORE, the decision declaring the defendants liable is affirmed. The damages to be
awarded to plaintiff should be reduced to P70,000.00 for the house and P50,000.00 for the
furniture and other fixtures with legal interest from the date of the filing of the complaint until
full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]

A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated February
18, 1980. Hence, petitioner filed the instant petition for review on February 22, 1980. After the comment
and reply were filed, the Court resolved to deny the petition for lack of merit on June 11, 1980.

However, petitioner filed a motion for reconsideration, which was granted, and the petition was given due
course on September 12, 1980. After the parties filed their memoranda, the case was submitted for decision
on January 21, 1981.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on their
house, from the award of damages.

2. In awarding excessive and/or unproved damages.

3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.

The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the issue
of damages being merely consequential. In view thereof, the errors assigned by petitioner shall be discussed
in the reverse order.

1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may be
stated as follows:

Where the thing which caused the injury complained of is shown to be under the management
of the defendant or his servants and the accident is such as in the ordinary course of things
does not happen if those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that the accident arose
from want of care. [Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA
448.]

Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank truck was
being unloaded into an underground storage tank through a hose and the fire spread to and burned
neighboring houses, this Court, applying the doctrine of res ipsa loquitur, adjudged Caltex liable for the loss.

The facts of the case likewise call for the application of the doctrine, considering that in the normal course
of operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint,
varnish and fuel and lubricants for machinery may be found thereon.

It must also be noted that negligence or want of care on the part of petitioner or its employees was not
merely presumed. The Court of Appeals found that petitioner failed to construct a firewall between its shop

71
and the residence of private respondents as required by a city ordinance; that the fire could have been
caused by a heated motor or a lit cigarette; that gasoline and alcohol were used and stored in the shop;
and that workers sometimes smoked inside the shop [CA Decision, p. 5; Rollo, p. 33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in
accordance with city ordinances would suffice to support a finding of negligence.

Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping over it. As it was the concrete
wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized
iron sheets, which would predictably crumble and melt when subjected to intense
heat. Defendant's negligence, therefore, was not only with respect to the cause of the fire but
also with respect to the spread thereof to the neighboring houses.[Africa v. Caltex (Phil.),
Inc., supra; Emphasis supplied.]

In the instant case, with more reason should petitioner be found guilty of negligence since it had failed to
construct a firewall between its property and private respondents' residence which sufficiently complies with
the pertinent city ordinances. The failure to comply with an ordinance providing for safety regulations had
been ruled by the Court as an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51
SCRA 181.]

The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss sustained
by private respondents.

2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such finding
by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v. Court of
Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so when there is no showing of
arbitrariness.

In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of private
respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00). With regard to the
house, the Court of Appeals reduced the award to P70,000.00 from P80,000.00. Such cannot be categorized
as arbitrary considering that the evidence shows that the house was built in 1951 for P40,000.00 and,
according to private respondents, its reconstruction would cost P246,000.00. Considering the appreciation
in value of real estate and the diminution of the real value of the peso, the valuation of the house at
P70,000.00 at the time it was razed cannot be said to be excessive.

3. While this Court finds that petitioner is liable for damages to private respondents as found by the Court
of Appeals, the fact that private respondents have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents has not escaped the attention of the
Court. Hence, the Court holds that in accordance with Article 2207 of the Civil Code the amount of
P35,000.00 should be deducted from the amount awarded as damages. Said article provides:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the
insurance company for the injury or loss arising out of the wrong or breach of contract
complained of, the insurance company is subrogated to the rights of the insured against the
wrongdoer or the person who violated the contract. If the amount paid by the insurance
company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover
the deficiency from the person causing the loss or injury. (Emphasis supplied.]

The law is clear and needs no interpretation. Having been indemnified by their insurer, private respondents
are only entitled to recover the deficiency from petitioner.

72
On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it indemnified
private respondents from petitioner. This is the essence of its right to be subrogated to the rights of the
insured, as expressly provided in Article 2207. Upon payment of the loss incurred by the insured, the insurer
is entitled to be subrogated pro tanto to any right of action which the insured may have against the third
person whose negligence or wrongful act caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co.,
Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]

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

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

SO ORDERED.

73
G.R. No. L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner,

vs.
ELENA FERNANDEZ, et al., respondent.

Jose W. Diokno for petitioner.

Jose G. Gatchalian for respondents.

MAKALINTAL, J.:

The facts are stated in the decision of the Court of Appeals as follows:

The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M.

Teague was a vocational school for hair and beauty culture situated on the second floor of the
Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4")
located at the corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said second
floor was unpartitioned, had a total area of about 400 square meters, and although it had
only one stairway, of about 1.50 meters in width, it had eight windows, each of which was
provided with two fire-escape ladders (Exh. "4"), and the presence of each of said fire-exits
was indicated on the wall (Exh. "5").

At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for
surplus materials located about ten meters away from the institute. Soler Street lay between
that store and the institute. Upon seeing the fire, some of the students in the Realistic Institute
shouted 'Fire! Fire!' and thereafter, a panic ensued. Four instructresses and six assistant
instructress of the Institute were present and they, together with the registrar, tried to calm
down the students, who numbered about 180 at the time, telling them not to be afraid
because the Gil-Armi Building would not get burned as it is made of concrete, and that the
fire was anyway, across the street. They told the students not to rush out but just to go down
the stairway two by two, or to use the fire-escapes. Mrs. Justitia Prieto, one of the
instructresses, took to the microphone so as to convey to the students the above admonitions
more effectively, and she even slapped three students in order to quiet them down. Miss Frino
Meliton, the registrar, whose desk was near the stairway, stood up and tried with outstretched
arms to stop the students from rushing and pushing their way to the stairs. The panic,
however, could not be subdued and the students, with the exception of the few who made
use of fire-escapes kept on rushing and pushing their way through the stairs, thereby causing
stampede therein.

Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four
students, including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and
several others injured on account of the stampede.

xxx xxx xxx

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper lip,
contused abrasions in different parts of the body, internal hemorrhage and fractures in the second and third
right ribs. The cause of death, according to the autopsy report, was "Shock due to traumatic fractures of
the ribs with perinephric hematoma and lacerations of the conjunctiva of both eyes."

The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague as owner
and operator of Realistic Institute. The Court of First Instance of Manila found for the defendant and
74
dismissed the case. The plaintiffs thereupon appealed to the Court of Appeals, which by a divided vote of 3
to 2 (a special division of five members having been constituted) rendered a judgment of reversal and
sentenced the defendant to pay damages to the plaintiffs in the sum of P11,000.00, plus interest at the
legal rate from the date the complaint was filed.

The case came up to this Court on a petition for review filed by the defendant below.

The decision of the appellate court declared that the defendant, hereinafter to be referred to as the
petitioner, was negligent and that such negligence was the proximate cause of the death of Lourdes
Fernandez. This finding of negligence is based primarily on the fact that the provision of Section 491 Of the
Revised Ordinances of the City of Manila had not been complied with in connection with the construction
and use of the Gil-Armi building where the petitioner's vocational school was housed. This provision reads
as follows:

Sec. 491. Firepro of partitions, exits and stairways. — ... All buildings and separate sections
of buildings or buildings otherwise known as accessorias having less than three stories, having
one or more persons domiciled therein either temporarily or permanently, and all public or
quasi-public buildings having less than three stories, such as hospitals, sanitarium, schools,
reformatories, places of human detention, assembly halls, clubs, restaurants or panciterias,
and the like, shall be provided with at least two unobstructed stairways of not less than one
meter and twenty centimeters in width and an inclination of not less than forty degrees from
the perpendicular, in case of large buildings more than two stairways shall likewise be
provided when required by the chief of the fire department, said stairways shall be placed as
far apart as possible.

The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of the Gil-
Armi building had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters each, although
at the time of the fire the owner of the building had a second stairway under construction.

In ruling that such non-compliance with the City Ordinances was an act of negligence and that such
negligence was the proximate cause of the death of Lourdes Fernandez, reliance is based on a number of
authorities in the American jurisdiction, thus: .

The mere fact of violation of a statute is not sufficient basis for an inference that such violation
was the proximate cause of the injury complained. However, if the very injury has happened
which was intended to be prevented by the statute, it has been held that violation of the
statute will be deemed to be proximate cause of the injury. (65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes negligence,
negligence as a matter or law, or, according to the decisions on the question, negligence per
se for the reason that non-observance of what the legislature has prescribed as a suitable
precaution is failure to observe that care which an ordinarily prudent man would observe,
and, when the state regards certain acts as so liable to injure others as to justify their absolute
prohibition, doing the forbidden act is a breach of duty with respect to those who may be
injured thereby; or, as it has been otherwise expressed, when the standard of care is fixed
by law, failure to conform to such standard is negligence, negligence per se or negligence in
and of itself, in the absence of a legal excuse. According to this view it is immaterial, where
a statute has been violated, whether the act or omission constituting such violation would
have been regarded as negligence in the absence of any statute on the subject or whether
there was, as a matter of fact, any reason to anticipate that injury would result from such
violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an accident by
exceeding the speed limit, for example, do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited. Violation of an ordinance

75
 intended to promote safety is negligence. If by creating the hazard which the ordinance was
intended to avoid it brings about the harm which the ordinance was intended to prevent, it is
a legal cause of the harm. This comes only to saying that in such circumstances the law has
no reason to ignore the causal relation which obviously exists in fact. The law has excellent
reason to recognize it, since it is the very relation which the makers of the ordinance
anticipated. This court has applied these principles to speed limits and other regulations of
the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

... However, the fact that other happenings causing or contributing toward an injury
intervened between the violation of a statute or ordinance and the injury does not necessarily
make the result so remote that no action can be maintained. The test is to be found not in
the number of intervening events or agents, but in their character and in the natural and
probable connection between the wrong done and the injurious consequence. The general
principle is that the violation of a statute or ordinance is not rendered remote as the cause of
an injury by the intervention of another agency if the occurrence of the accident, in the
manner in which it happened, was the very thing which the statute or ordinance was intended
to Prevent. (38 Am Jur 841).

The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances of the
City of Manila refers to public buildings and hence did not apply to the Gil-Armi building which was of private
ownership. It will be noted from the text of the ordinance, however, that it is not ownership which determines
the character of buildings subject to its requirements, but rather the use or the purpose for which a particular
building is utilized. Thus the same may be privately owned, but if it is devoted to any one of the purposes
mentioned in the ordinance — for instance as a school, which the Realistic Institute precisely was — then
the building is within the coverage of the ordinance. Indeed the requirement that such a building should
have two (2) separate stairways instead of only one (1) has no relevance or reasonable relation to the fact
of ownership, but does have such relation to the use or purpose for which the building is devoted.

It is next contended that the obligation to comply with the ordinance devolved upon the owners of the
building and therefore it is they and not the petitioner herein, who is a mere lessee, who should be liable
for the violation. The contention ignores the fact that it was the use of the building for school purposes
which brought the same within the coverage of the ordinance; and it was the petitioner and not the owners
who was responsible for such use.

The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply with
the requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez. The case
of Villanueva Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is cited in support
of the contention that such failure was not the proximate cause. It is there stated by this Court:

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

Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the death
of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of
"Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot
be the basis of liability since there intervened a number of independent causes which produced the injury
complained of. A statement of the doctrine relied upon is found in Manila Electric Co. vs. Remoquillo, L-
8328, May 18, 1956, wherein this Court, citing Corpus Juris said:

76
 A prior and remote cause cannot be made the basis of an action if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or remote cause and the injury a
distinct, successive unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed in the condition
except because of the independent cause, such condition was not the proximate cause. And
if an independent negligent act or defective condition sets into operation the circumstances
which result in injury because of the prior defective condition, such subsequent act or
condition is the proximate cause. (45 C.J. p. 931.)

According to the petitioner "the events of fire, panic and stampede were independent causes with no causal
connection at all with the violation of the ordinance." The weakness in the argument springs from a faulty
juxtaposition of the events which formed a chain and resulted in the injury. It is true that the petitioner's
non-compliance with the ordinance in question was ahead of and prior to the other events in point of time,
in the sense that it was coetaneous with its occupancy of the building. But the violation was a continuing
one, since the ordinance was a measure of safety designed to prevent a specific situation which would pose
a danger to the occupants of the building. That situation was undue overcrowding in case it should become
necessary to evacuate the building, which, it could be reasonably foreseen, was bound to happen under
emergency conditions if there was only one stairway available. It is true that in this particular case there
would have been no overcrowding in the single stairway if there had not been a fire in the neighborhood
which caused the students to panic and rush headlong for the stairs in order to go down. But it was precisely
such contingencies or event that the authors of the ordinance had in mind, for under normal conditions one
stairway would be adequate for the occupants of the building. Thus, as stated in 38 American Jurisprudence,
page 841: "The general principle is that the violation of a statute or ordinance is not rendered remote as
the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner
in which it happened, was the very thing which the statute or ordinance was intended to prevent." To
consider the violation of the ordinance as the proximate cause of the injury does not portray the situation
in its true perspective; it would be more accurate to say that the overcrowding at the stairway was the
proximate cause and that it was precisely what the ordinance intended to prevent by requiring that there
be two stairways instead of only one. Under the doctrine of the cases cited by the respondents, the principle
of proximate cause applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically allege that the
ordinance in question had been violated. The violation, however, as an act of negligence which gave rise to
liability, was sufficiently comprehended within paragraph 7 of the complaint, which reads: .

Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the defendant
who failed to exercise due care and diligence for the safety of its students in not providing
the building with adequate fire exits and in not practicing fire drill exercises to avoid the
stampede, aside from the fact that the defendant did not have a permit to use the building
as a school-house.

The decision appealed from is affirmed, with costs.

77
[G.R. No. 130003. October 20, 2004]

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

VILLAGRACIA, respondent

DECISION
TINGA, J.:

The bicycle provides considerable speed and freedom of movement to the rider. It derives a certain
charm from being unencumbered by any enclosure, affording the cyclist the perception of relative liberty.
It also carries some obvious risks on the part of the user and has become the subject of regulation, if not
by the government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages from the driver of the car
which had struck him. The argument is hinged on the cyclists failure to install safety devices on his bicycle.
However, the lower courts agreed that the motorist himself caused the collision with his own negligence.
The facts are deceptively simple, but the resolution entails thorough consideration of fundamental precepts
on negligence.
The present petition raises little issue with the factual findings of the Regional Trial Court (RTC), Branch
160, of Pasig City, as affirmed by the Court of Appeals. Both courts adjudged petitioner, Jonas Aonuevo (
Aonuevo ), liable for the damages for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia).
Instead, the petition hinges on a sole legal question, characterized as novel by the petitioner: whether
Article 2185 of the New Civil Code, which presumes the driver of a motor vehicle negligent if he was violating
a traffic regulation at the time of the mishap, should apply by analogy to non-motorized vehicles.[1]
As found by the RTC, and affirmed by the Court of Appeals, the accident in question occurred on 8
February 1989, at around nine in the evening, at the intersection of Boni Avenue and Barangka Drive in
Mandaluyong (now a city). Villagracia was traveling along Boni Avenue on his bicycle, while Aonuevo,
traversing the opposite lane was driving his Lancer car with plate number PJJ 359. The car was owned by
Procter and Gamble Inc., the employer of Aonuevos brother, Jonathan. Aonuevo was in the course of making
a left turn towards Libertad Street when the collision occurred. Villagracia sustained serious injuries as a
result, which necessitated his hospitalization several times in 1989, and forced him to undergo four (4)
operations.
On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble Phils.,
Inc. and Aonuevo before the RTC.[2] He had also filed a criminal complaint against Aonuevo before the
Metropolitan Trial Court of Mandaluyong, but the latter was subsequently acquitted of the criminal
charge.[3] Trial on the civil action ensued, and in a Decision dated 9 March 1990, the RTC rendered judgment
against Procter and Gamble and Aonuevo, ordering them to pay Villagracia the amounts of One Hundred
Fifty Thousand Pesos (P150, 000.00). for actual damages, Ten Thousand Pesos (P10,000.00) for moral
damages, and Twenty Thousand Pesos (P20,000.00) for attorneys fees, as well as legal costs. [4] Both
defendants appealed to the Court of Appeals.
In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division affirmed the RTC Decision in
toto[6]. After the Court of Appeals denied the Motion for Reconsideration in a Resolution[7] dated 22 July
1997, Procter and Gamble and Aonuevo filed their respective petitions for review with this Court. Procter
and Gambles petition was denied by this Court in a Resolution dated 24 November 1997. Aonuevos
petition,[8] on the other hand, was given due course,[9] and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the RTC. Among
them: that it was Aonuevos vehicle which had struck Villagracia; [10] that Aonuevos vehicle had actually hit
Villagracias left mid-thigh, thus causing a comminuted fracture;[11] that as testified by eyewitness Alfredo
Sorsano, witness for Villagracia, Aonuevo was umaarangkada, or speeding as he made the left turn into
Libertad;[12] that considering Aonuevos claim that a passenger jeepney was obstructing his path as he made
the turn. Aonuevo had enough warning to control his speed; [13] and that Aonuevo failed to exercise the
78
ordinary precaution, care and diligence required of him in order that the accident could have been
avoided.[14] Notably, Aonuevo, in his current petition, does not dispute the findings of tortious conduct on
his part made by the lower courts, hinging his appeal instead on the alleged negligence of Villagracia.
Aonuevo proffers no exculpatory version of facts on his part, nor does he dispute the conclusions made by
the RTC and the Court of Appeals. Accordingly, the Court, which is not a trier of facts, [15] is not compelled
to review the factual findings of the lower courts, which following jurisprudence have to be received with
respect and are in fact generally binding.[16]
Notwithstanding, the present petition presents interesting questions for resolution. Aonuevos
arguments are especially fixated on a particular question of law: whether Article 2185 of the New Civil Code
should apply by analogy to non-motorized vehicles.[17] In the same vein, Aonuevo insists that Villagracias
own fault and negligence serves to absolve the former of any liability for damages.
Its is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points out that
Villagracias bicycle had no safety gadgets such as a horn or bell, or headlights, as invoked by a 1948
municipal ordinance.[18] Nor was it duly registered with the Office of the Municipal Treasurer, as required by
the same ordinance. Finally, as admitted by Villagracia, his bicycle did not have foot brakes.[19] Before this
Court, Villagracia does not dispute these allegations, which he admitted during the trial, but directs our
attention instead to the findings of Aonuevos own negligence.[20] Villagracia also contends that, assuming
there was contributory negligence on his part, such would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged the lack of safety gadgets on Villagracias bicycle, but
characterized the contention as off-tangent and insufficient to obviate the fact that it was Aonuevos own
negligence that caused the accident.[21]
Aonuevo claims that Villagracia violated traffic regulations when he failed to register his bicycle or install
safety gadgets thereon. He posits that Article 2185 of the New Civil Code applies by analogy. The provision
reads:

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap he was violating any traffic regulation.

The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of the New
Civil Code.[22] Its applicability is expressly qualified to motor vehicles only, and there is no ground to presume
that the law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of vehicles [23]. He
points out that modern-day travel is more complex now than when the Code was enacted, the number and
types of vehicles now in use far more numerous than as of then. He even suggests that at the time of the
enactment of the Code, the legislators must have seen that only motor vehicles were of such public concern
that they had to be specifically mentioned, yet today, the interaction of vehicles of all types and nature has
inescapably become matter of public concern so as to expand the application of the law to be more
responsive to the times.[24]
What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as embodied in
Article 2185, a task beyond the pale of judicial power. The Court interprets, and not creates, the law.
However, since the Court is being asked to consider the matter, it might as well examine whether Article
2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles ranging
from human-powered contraptions on wheels such as bicycles, scooters, and animal-drawn carts such
as calesas and carromata. These modes of transport were even more prevalent on the roads of the 1940s
and 1950s than they are today, yet the framers of the New Civil Code chose then to exclude these alternative
modes from the scope of Article 2185 with the use of the term motorized vehicles. If Aonuevo seriously
contends that the application of Article 2185 be expanded due to the greater interaction today of all types
of vehicles, such argument contradicts historical experience. The ratio of motorized vehicles as to non-
motorized vehicles, as it stood in 1950, was significantly lower than as it stands today. This will be certainly
affirmed by statistical data, assuming such has been compiled, much less confirmed by persons over sixty.
Aonuevos characterization of a vibrant intra-road dynamic between motorized and non-motorized vehicles
is more apropos to the past than to the present.
79
 There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable today. He premises that
the need for the distinction between motorized and non-motorized vehicles arises from the relative mass of
number of these vehicles. The more pertinent basis for the segregate classification is the difference in type
of these vehicles. A motorized vehicle operates by reason of a motor engine unlike a non-motorized vehicle,
which runs as a result of a direct exertion by man or beast of burden of direct physical force. A motorized
vehicle, unimpeded by the limitations in physical exertion. is capable of greater speeds and acceleration
than non-motorized vehicles. At the same time, motorized vehicles are more capable in inflicting greater
injury or damage in the event of an accident or collision. This is due to a combination of factors peculiar to
the motor vehicle, such as the greater speed, its relative greater bulk of mass, and greater combustability
due to the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As far back
as 1912, in the U.S. v. Juanillo[25], the Court has recognized that an automobile is capable of great speed,
greater than that of ordinary vehicles hauled by animals, and beyond doubt it is highly dangerous when
used on country roads, putting to great hazard the safety and lives of the mass of the people who travel on
such roads.[26] In the same case, the Court emphasized:

A driver of an automobile, under such circumstances, is required to use a greater degree of care than drivers
of animals, for the reason that the machine is capable of greater destruction, and furthermore, it is
absolutely under the power and control of the driver; whereas, a horse or other animal can and does to
some extent aid in averting an accident. It is not pleasant to be obliged to slow down automobiles to
accommodate persons riding, driving, or walking. It is probably more agreeable to send the machine along
and let the horse or person get out of the way in the best manner possible; but it is well to understand, if
this course is adopted and an accident occurs, that the automobile driver will be called upon to account for
his acts. An automobile driver must at all times use all the care and caution which a careful and prudent
driver would have exercised under the circumstances.[27]

American jurisprudence has had occasion to explicitly rule on the relationship between the motorist and
the cyclist. Motorists are required to exercise ordinary or reasonable care to avoid collision with
bicyclists.[28] While the duty of using ordinary care falls alike on the motorist and the rider or driver of a
bicycle, it is obvious, for reasons growing out of the inherent differences in the two vehicles, that more is
required from the former to fully discharge the duty than from the latter.[29]
The Code Commission was cognizant of the difference in the natures and attached responsibilities of
motorized and non-motorized vehicles. Art. 2185 was not formulated to compel or ensure obeisance by all
to traffic rules and regulations. If such were indeed the evil sought to be remedied or guarded against, then
the framers of the Code would have expanded the provision to include non-motorized vehicles or for that
matter, pedestrians. Yet, that was not the case; thus the need arises to ascertain the peculiarities attaching
to a motorized vehicle within the dynamics of road travel. The fact that there has long existed a higher
degree of diligence and care imposed on motorized vehicles, arising from the special nature of motor vehicle,
leads to the inescapable conclusion that the qualification under Article 2185 exists precisely to recognize
such higher standard. Simply put, the standards applicable to motor vehicle are not on equal footing with
other types of vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles, even if
by analogy. There is factual and legal basis that necessitates the distinction under Art. 2185, and to adopt
Aonuevos thesis would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not preclude
any possible finding of negligence on his part. While the legal argument as formulated by Aonuevo is
erroneous, his core contention that Villagracia was negligent for failure to comply with traffic regulations
warrants serious consideration, especially since the imputed negligent acts were admitted by Villagracia
himself.
The Civil Code characterizes negligence as the omission of that diligence which is required by the nature
of the obligation and corresponds with the circumstances of the persons, of the time and of the
place.[30] However, the existence of negligence in a given case is not determined by the personal judgment

80
of the actor in a given situation, but rather, it is the law which determines what would be reckless or
negligent.[31]
Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a municipal ordinance
requiring the registration of bicycles and the installation of safety devices thereon. This view finds some
support if anchored on the long standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty constitutes negligence, negligence
as a matter of law, or negligence per se.[32] In Teague vs. Fernandez,[33] the Court cited with approval
American authorities elucidating on the rule:

The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the
proximate cause of the injury complained. However, if the very injury has happened which was intended to
be prevented by the statute, it has been held that violation of the statute will be deemed to be the proximate
cause of the injury. (65 C.J.S. 1156)

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a
matter of law, or, according to the decisions on the question, negligence per se, for the reason that non-
observance of what the legislature has prescribed as a suitable precaution is failure to observe that care
which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to
injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with respect
to those who may be injured thereby; or, as it has been otherwise expressed, when the standard of care is
fixed by law, failure to conform to such standard is negligence, negligence per se or negligence in and of
itself, in the absence of a legal excuse. According to this view it is immaterial, where a statute has been
violated, whether the act or omission constituting such violation would have been regarded as negligence
in the absence of any statute on the subject or whether there was, as a matter of fact, any reason to
anticipate that injury would result from such violation. x x x. (65 C.J.S. pp.623-628)

But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the
speed limit, for example, we do not inquire whether his prohibited conduct was unreasonably dangerous. It
is enough that it was prohibited. Violation of an ordinance intended to promote safety is negligence. If by
creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance
was intended to prevent, it is a legal cause of the harm. This comes only to saying that in such circumstances
the law has no reason to ignore the causal relation which obviously exists in fact. The law has excellent
reason to recognize it, since it is the very relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations of the manner of driving. (Ross vs.
Hartman, 139 Fed. 2d 14 at 15).

x x x However, the fact that other happenings causing or contributing toward an injury intervened between
the violation of a statute or ordinance and the injury does not necessarily make the result so remote that
no action can be maintained. The test is to be found not in the number of intervening events or agents, but
in their character and in the natural and probable connection between the wrong done and the injurious
consequence. The general principle is that the violation of a statute or ordinance is not rendered remote as
the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner
in which it happened, was the very thing which the statute or ordinance was intended to prevent. (38 Am
Jur 841)[34]

In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found negligent,
base on her failure to provide adequate fire exits in contravention of a Manila city ordinance. [35] In F.F. Cruz
and Co., Inc. v. Court of Appeals[36], the failure of the petitioner to construct a firewall in accordance with
city ordinances sufficed to support a finding of negligence. [37] In Cipriano v. Court of Appeals, [38]the Court
found that the failure of the petitioner to register and insure his auto rustproofing shop in accordance with
the statute constituted negligence per se, thus holding him liable for the damages for the destruction by fire
of a customers vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an
ordinance? It cannot be denied that the statutory purpose for requiring bicycles to be equipped with
81
headlights or horns is to promote road safety and to minimize the occurrence of road accidents involving
bicycles. At face value, Villagracias mishap was precisely the danger sought to be guarded against by the
ordinance he violated. Aonuevo argues that Villagracias violation should bar the latters recovery of damages,
and a simplistic interpretation of negligence per se might vindicate such an argument.
But this is by no means a simple case. There is the fact which we consider as proven, that Aonuevo was
speeding as he made the left turn, and such negligent act was the proximate cause of the accident. This
reckless behavior would have imperiled anyone unlucky enough within the path of Aonuevos car as it turned
into the intersection, whether they are fellow motorists, pedestrians, or cyclists. We are hard put to conclude
that Villagracia would have avoided injury had his bicycle been up to par with safety regulations, especially
considering that Aonuevo was already speeding as he made the turn, or before he had seen Villagracia.
Even assuming that Aonuevo had failed to see Villagracia because the bicycle was not equipped with
headlights, such lapse on the cyclists part would not have acquitted the driver of his duty to slow down as
he proceeded to make the left turn.
This court has appreciated that negligence per se, arising from the mere violation of a traffic statute,
need not be sufficient in itself in establishing liability for damages. In Sanitary Steam Laundry, Inc. v. Court
of Appeals,[39] a collision between a truck and a privately-owned Cimarron van caused the death of three of
the vans passengers. The petitioner therein, the owner of the truck, argued that the driver of the Cimarron
was committing multiple violations of the Land Transportation and Traffic Code[40] at the time of the accident.
Among these violations: the Cimarron was overloaded at the time of the accident; the front seat of the van
was occupied by four adults, including the driver; and the van had only one functioning headlight. Similar
as in this case, petitioner therein invoked Article 2185 and argued that the driver of the Cimarron should be
presumed negligent. The Court, speaking through Justice Mendoza, dismissed these arguments:

[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the collision
between the vehicles. Indeed, petitioner has the burden of showing a causal connection between the injury
received and the violation of the Land Transportation and Traffic Code. He must show that the violation of
the statute was the proximate or legal cause of the injury or that it substantially contributed thereto.
Negligence consisting in whole or in part, of violation of law, like any other negligence, is without legal
consequence unless it is a contributing cause of the injury. Petitioner says that driving an overloaded vehicle
with only one functioning headlight during nighttime certainly increases the risk of accident, that because
the Cimarron had only one headlight, there was decreased visibility, and that the fact that the vehicle was
overloaded and its front seat overcrowded decreased its maneuverability. However, mere allegations such
as these are not sufficient to discharge its burden of proving clearly that such alleged negligence was the
contributing cause of the injury.[41]

Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was violating a municipal
ordinance at the time of the accident may have sufficiently established some degree of negligence on his
part, but such negligence is without legal consequence unless it is shown that it was a contributing cause of
the injury. If anything at all, it is but indicative of Villagracias failure in fulfilling his obligation to the municipal
government, which would then be the proper party to initiate corrective action as a result. But such failure
alone is not determinative of Villagracias negligence in relation to the accident. Negligence is relative or
comparative, dependent upon the situation of the parties and the degree of care and vigilance which the
particular circumstances reasonably require.[43] To determine if Villagracia was negligent, it is not sufficient
to rely solely on the violations of the municipal ordinance, but imperative to examine Villagracias behavior
in relation to the contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise from the logical consequences
of the facts leading to the mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as
a judicial guide in adjudging liability, for it seeks to impute culpability arising from the failure of the actor
to perform up to a standard established by a legal fiat. But the doctrine should not be rendered inflexible so
as to deny relief when in fact there is no causal relation between the statutory violation and the injury
sustained. Presumptions in law, while convenient, are not intractable so as to forbid rebuttal rooted in fact.
After all, tort law is remunerative in spirit, aiming to provide compensation for the harm suffered by those
whose interests have been invaded owing to the conduct of others. [44]

82
 Under American case law, the failures imputed on Villagracia are not grievous enough so as to negate
monetary relief. In the absence of statutory requirement, one is not negligent as a matter of law for failing
to equip a horn, bell, or other warning devise onto a bicycle. [45] In most cases, the absence of proper lights
on a bicycle does not constitute negligence as a matter of law [46] but is a question for the jury whether the
absence of proper lights played a causal part in producing a collision with a motorist. [47] The absence of
proper lights on a bicycle at night, as required by statute or ordinance, may constitute negligence barring
or diminishing recovery if the bicyclist is struck by a motorist as long as the absence of such lights was a
proximate cause of the collision;[48] however, the absence of such lights will not preclude or diminish
recovery if the scene of the accident was well illuminated by street lights,[49] if substitute lights were present
which clearly rendered the bicyclist visible,[50] if the motorist saw the bicycle in spite of the absence of lights
thereon,[51] or if the motorist would have been unable to see the bicycle even if it had been equipped with
lights.[52] A bicycle equipped with defective or ineffective brakes may support a finding of negligence barring
or diminishing recovery by an injured bicyclist where such condition was a contributing cause of the
accident.[53]
The above doctrines reveal a common thread. The failure of the bicycle owner to comply with accepted
safety practices, whether or not imposed by ordinance or statute, is not sufficient to negate or mitigate
recovery unless a causal connection is established between such failure and the injury sustained. The
principle likewise finds affirmation in Sanitary Steam, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it substantially contributed
thereto.[54]Aonuevo had the burden of clearly proving that the alleged negligence of Villagracia was the
proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:

[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about ten (10) meters
before the accident. Corrolarily, therefore, he could have avoided the accident had he [stopped] alongside
with an earlier (sic) jeep which was already at a full stop giving way to appellee. But according to
[eyewitness] Sorsano, he saw appellant Aonuevo umaarangkada and hit the leg of Villagracia (TSN March
14, 1990 p. 30). This earlier (sic) jeep at a full stop gave way to Villagracia to proceed but Aonuevo at an
unexpected motion (umarangkada) came out hitting Villagracia (TSN March 9, 1990 p. 49). Appellant
Aonuevo admitted that he did not blow his horn when he crossed Boni Avenue (TSN March 21, 1990 p.
47).[55]

By Aonuevos own admission, he had seen Villagracia at a good distance of ten (10) meters. Had he
been decelerating, as he should, as he made the turn, Aonuevo would have had ample opportunity to avoid
hitting Villagracia. Moreover, the fact that Aonuevo had sighted Villagracia before the accident would negate
any possibility that the absence of lights on the bike contributed to the cause of the accident.[56] A motorist
has been held liable for injury to or death of a bicyclist where the motorist turned suddenly into the bicyclist
so as to cause a collision.[57]
Neither does Aonuevo attempt before this Court to establish a causal connection between the safety
violations imputed to Villagracia and the accident itself. Instead, he relied on a putative presumption that
these violations in themselves sufficiently established negligence appreciable against Villagracia. Since the
onus on Aonuevo is to conclusively prove the link between the violations and the accident, we can deem
him as having failed to discharge his necessary burden of proving Villagracias own liability.
Neither can we can adjudge Villagracia with contributory negligence. The leading case in contributory
negligence, Rakes v. Atlantic Gulf[58] clarifies that damages may be mitigated if the claimant in conjunction
with the occurrence, [contributes] only to his injury.[59]To hold a person as having contributed to his injuries,
it must be shown that he performed an act that brought about his injuries in disregard of warnings or signs
of an impending danger to health and body.[60] To prove contributory negligence, it is still necessary to
establish a causal link, although not proximate, between the negligence of the party and the succeeding
injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and
not simply a condition for its occurrence.[61]
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely responsible for the
accident. The petition does not demonstrate why this finding should be reversed. It is hard to imagine that

83
the same result would not have occurred even if Villagracias bicycle had been equipped with safety
equipment. Aonuevo himself admitted having seen Villagracia from ten (10) meters away, thus he could no
longer claim not having been sufficiently warned either by headlights or safety horns. The fact that Aonuevo
was recklessly speeding as he made the turn likewise leads us to believe that even if Villagracias bicycle
had been equipped with the proper brakes, the cyclist would not have had opportunity to brake in time to
avoid the speeding car. Moreover, it was incumbent on Aonuevo to have established that Villagracias failure
to have installed the proper brakes contributed to his own injury. The fact that Aonuevo failed to adduce
proof to that effect leads us to consider such causal connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

84
[G.R. No. 119092. December 10, 1998]

SANITARY STEAM LAUNDRY, INC., petitioner, vs. THE COURT OF APPEALS, NICANOR BERNABE
III, JOSEFINA BERNABE, in their individual capacities and as HEIRS OF JASON BERNABE,
JOHN JOSEPH BERNABE, VICTOR IGNACIO, JULIETA ENRIQUEZ and RAMON ENRIQUEZ,
RENE TABLANTE, LEOMAR MACASPAC, JR., CHARITO ESTOLANO, NENITA SALUNOY, in
their individual capacities and as HEIRS OF DALMACIO SALUNOY, respondents.

DECISION
MENDOZA, J.:

This case involves a collision between a Mercedes Benz panel truck of petitioner Sanitary Steam Laundry
and a Cimarron which caused the death of three persons and the injuries of several others. The accident
took place at the Aguinaldo Highway in Imus, Cavite on August 31, 1980. All the victims were riding in the
Cimarron. One of those who died was the driver. The Regional Trial Court of Makati found petitioners driver
to be responsible for the vehicular accident and accordingly held petitioner liable to private respondents
for P472,262.30 in damages and attorneys fees. Its decision was affirmed in toto by the Court of Appeals. It
is here for a review of the appellate courts decision.
The passengers of the Cimarron were mostly employees of the Project Management Consultants, Inc.
(PMCI). They had just visited the construction site of a company project at Lian, Batangas. The other
passengers were family members and friends whom they invited to an excursion to the beach after the visit
to the construction site. The group stayed at Lian beach until 5:30 p.m., when they decided to go back to
Manila.
The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of one of the employees
of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about 8:00 p.m., as it was traveling
along Aguinaldo Highway in Imus, Cavite on its way back to Manila, the Cimarron was hit on its front portion
by petitioners panel truck, bearing Plate No. 581 XM, which was traveling in the opposite direction. The
panel truck was on its way to petitioners plant in Dasmarias, Cavite after delivering some linen to the Makati
Medical Center. The driver, Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He
said he stepped on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to the
left and encroach on a portion of the opposite lane. As a result, his panel truck collided with the Cimarron
on the north-bound lane.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason Bernabe and
Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were injured and taken to various
hospitals.
On December 4, 1980, private respondents filed this civil case for damages before the then Court of
First Instance of Rizal, Pasig Branch, against petitioner.
On November 23, 1990, the Regional Trial Court of Makati, to which the case was transferred following
the reorganization of the judiciary, rendered judgment for private respondents. The dispositive portion of
its decision reads:

It is for the reasons stated above that the court is persuaded to award the damages incurred by the plaintiffs
as proved in the trial as follows:

Actual or compensatory expenses:

a. Charito Estolano P35,813.87 (Exh. J)

b. Nicanor Bernabe III 20,024.94

85
& Josefina C. Bernabe

c. Julieta, Ailyn & 45,830.45 (Exh. QQ)

Josefina Enriquez

and Josefina Valeiro

d. Leonor Macaspac 2,740.00

e. Victor Rey Ignacio 14,820.64 (Exh. EEE)

f. Rene Tablante 10,032.40 (Exh. QQQ)

g. Nenita Salonoy, widow; 20,000.00

and Manilyn, children

Moral damages should also be awarded as follows:

For the injuries sustained by:

a. Charito Estolano P10,000.00 (Exh. F)

b. Julieta P. Enriquez 15,000.00 (Exh. MM)

c. Ailyn C. Enriquez 8,000.00 (Exh. NN)

d. Josefina R. Enriquez 10,000.00 (Exh. OO)

e. Josefina P. Valerio 2,000.00 (Exh. PP)

f. Nenita Salonoy 20,000.00 (Exh. DD)

g. Nicanor Bernabe III 8,000.00 (Exh. Q)

h. Josephine Bernabe 2,000.00 (Exh. R)

i. John Joseph Bernabe 10,000.00

j. Manilyn G. Salonoy 10,000.00 (Exh. EE)

k. Jack Salonoy 10,000.00 (Exh. JJ)

l. Leonor C. Macaspac 2,000.00 (Exh. AAA)

m. Victor Ignacio 8,000.00 (Exh. DDD)

n. Rene Tablanta 8,000.00 (Exh. FFF)

and finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00 for the latters death. The
heirs of Dalmacio Salunoy should be given the sum of P100,000.00 for moral damages and unearned
income.
86
The foregoing considered, judgment is rendered in favor of plaintiffs ordering defendant to pay the amounts
aforecited and to pay the further sum of P50,000.00 for attorneys fees and the costs.

SO ORDERED.

As already stated, the Court of Appeals, to which the decision of the trial court was appealed, affirmed
the decision on January 26, 1995. Hence, this appeal.
First. Petitioner contends that the driver of the Cimarron was guilty of contributory negligence and,
therefore, its liability should be mitigated, if not totally extinguished. It claims that the driver of the Cimarron
was guilty of violation of traffic rules and regulations at the time of the mishap.Hence, in accordance with
Art. 2185 of the Civil Code, he was presumed to be negligent.
According to petitioner, the negligence consisted of the following:
1. The Cimarron was overloaded because there were from 20 to 25 passengers inside when the
passenger capacity of the vehicle was only 17.
2. The front seat of the Cimarron was occupied by four adults, including the driver.
3. The Cimarron had only one headlight on (its right headlight) as its left headlight was not
functioning.
Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land Transportation and Traffic Code, which
provides that No person operating any vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered carry capacity and Art. IV, 3(e) which states that Every motor vehicle of more
than one meter of projected width, while in use on any public highway shall bear two headlights... which
not later than one-half hour after sunset and until at least one-half hour before sunrise and whenever
weather conditions so require, shall both be lighted.
Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of the Cimarron
does not show that its driver was negligent. Petitioner cites the case of Bayasen v. Court of Appeals,[1] which
allegedly held that the sudden swerving of a vehicle caused by its driver stepping on the brakes is not
negligence per se. Petitioner further claims that even if petitioners swerving to the lane of respondents were
considered proof of negligence, this fact would not negate the presumption of negligence on the part of the
other driver arising from his violations of traffic rules and regulations.
Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court,[2] in which a driver who
invaded the opposite lane and caused a collision between his car and a truck coming from the opposite lane,
was exonerated based on the doctrine of last clear chance, which states that a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent, is solely
responsible for the consequences of the accident.
Petitioner contends that the ruling in that case should be applied to the present case. According to
petitioner, although the driver of the panel truck was initially negligent, the driver of the Cimarron had the
last opportunity to avoid the accident. However, because of his negligence (i.e., the aforementioned
violations of traffic rules and regulations such as the use of only one headlight at night and the overcrowding
at the front seat of the vehicle), he was not able to avoid a collision with the panel truck.
We find the foregoing contention to be without merit.
First of all, it has not been shown how the alleged negligence of the Cimarron driver contributed to the
collision between the vehicles. Indeed, petitioner has the burden of showing a causal connection between
the injury received and the violation of the Land Transportation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause of the injury or that it substantially contributed
thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without
legal consequence unless it is a contributing cause of the injury.[3] Petitioner says that driving an overloaded
vehicle with only one functioning headlight during nighttime certainly increases the risk of accident, [4] that
because the Cimarron had only one headlight, there was decreased visibility, and that the fact that the
vehicle was overloaded and its front seat overcrowded decreased [its] maneuverability.[5] However, mere

87
allegations such as these are not sufficient to discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury.
Furthermore, based on the evidence in this case, there was no way either driver could have avoided the
collision. The panel truck driver testified:[6]
Q. You stated you were following a jeepney along the highway in Imus, Cavite, what happened
afterwards, if any?
A. The passenger jeepney I was following made a sudden stop so I stepped on the brakes.
Q. Upon stepping on your brakes, what happened if any?
A. The Mercedes Benz (panel) suddenly swerved to the left, sir.
Q. How big was the swerving to the left?
A. The distance which my vehicle swerved beyond the middle line or center line to the left was about this
distance, sir (witness demonstrating by using both hands the distance).
ATTY. ALILING:
Can we stipulate that it is 1 foot, Your Honor.
ATTY. GONZALES:
A little more, 1 1/2 feet.
ATTY. ALILING:
1 1/4 feet.
ATTY. GONZALES:
Between 1 1/4 and 1 1/2 feet.
The panel truck drivers testimony is consistent with the testimonies of private respondents that the
panel truck went out of control and simply smashed into the Cimarron in which they were riding. Thus,
Nicanor Bernabe III testified:[7]
Q: And did you see how the accident happened?
A: I just saw a glare of light. That is all and then the impact.
Q: Where did you see that glare of light?
A: Coming in front ahead of us.
Q: When you say ahead of you, was it . . . ?
A: Towards us.
....
Q: And from what did those glare of light come from?
A: Based on information I received, the light came from the headlights of a certain panel owned by
Sanitary Steam Laundry, Inc.
....
Q: You said that the lights were going towards you. Now, at what pace did these lights come toward you?
A: Fast pace.
Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified that
they just saw the panel truck hurtling toward them. She said:[8]
Q Now, you said earlier that you were involved in an accident. What was that accident?
88
 A An approaching vehicle hit us.
Q Now, why do you know that there was the approaching vehicle?
A There was a light which glared us and I knew that it came from a vehicle. We were blinded.
Q Where was this vehicle headed for?
A Headed for Cavite.
Q Coming from?
A Coming from Manila, I think.
Q So that, actually, in relation to your vehicle, it was coming from the opposite direction?
A Yes, sir.
Q Now, you said that the light headed towards your vehicle. On which side of the highway was your
Tamaraw vehicle travelling at that time?
A We were on the right lane.
Q Did you actually see this light from the vehicle coming from the opposite direction heading towards
your vehicle?
A Yes, sir.
Q And what happened after that?
A After that, there was an impact.
Q All right. Will you tell the Court which bumped which?
A We were bumped by the vehicle which was coming from the opposite direction.
The foregoing testimonies show that the driver of the panel truck lost control of his vehicle and bumped
the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would have been bumped just
the same because the driver of the panel truck could not stop despite the fact that he applied the
brakes. Petitioners contention that because of decreased visibility, caused by the fact that the Cimarron
allegedly had only one headlight on, its driver failed to see the Cimarron is without any basis in fact. Only
its driver claimed that the Cimarron had only one headlight on.The police investigator did not state in his
report or in his testimony that the Cimarron had only one headlight on.
Nor is there any basis in fact for petitioners contention that because of overcrowding in the front seat
of the Cimarron there was decreased maneuverability which prevented the Cimarron driver from avoiding
the panel truck. There is absolutely no basis for this claim. There is nothing in the testimonies of the
passengers of the Cimarron, particularly Charito Estolano, who was seated in front, which suggest that the
driver had no elbow room for maneuvering the vehicle. To the contrary, from the testimony of some of the
witnesses,[9] it appears that the driver of the Cimarron tried to avoid the collision but because of the
emergency created by the speeding panel truck coming from the opposite direction he was not able to fully
move his Cimarron away from the path of the oncoming vehicle. We are convinced that no maneuvering
which the Cimarron driver could have done would have avoided a collision with the panel truck, given the
suddenness of the events. Clearly, the overcrowding in the front seat was immaterial.
All these point to the fact that the proximate cause of the accident was the negligence of petitioners
driver. As the trial court noted, the swerving of petitioners panel truck to the opposite lane could mean not
only that petitioners driver was running the vehicle at a very high speed but that he was tailgating the
passenger jeepney ahead of it as well.
Petitioners driver claimed that the distance between the panel truck and the passenger jeepney in front
was about 12 meters.[10] If this was so, he would have had no difficulty bringing his panel truck to a stop. It
is very probable that the driver did not really apply his brakes (which is why there were no skid marks) but
that finding the jeepney in front of him to be in close proximity, he tried to avoid hitting it by swerving his
vehicle to the left. In the process, however, he invaded a portion of the opposite lane and consequently hit
89
the Cimarron. Indeed, the panel truck driver testified that his vehicle was running at the speed of 60 miles
per hour.[11] He tried to correct himself when asked by petitioners counsel whether the panel truck
speedometer indicated miles or kilometers by saying that the speedometer measured kilometers and not
miles, but on cross examination his testimony got muddled.[12]
Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77 kilometers per
hour) or 60 kilometers per hour, the fact remains that the panel truck was overspeeding because the
maximum allowable speed for trucks and buses on open country roads, such as the Aguinaldo Highway in
Imus, Cavite, is only 50 kilometers per hour.[13]
The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no swerving of the
vehicle in that case but skidding, and it was caused by the fact that the road was wet and slippery. In this
case, the road was dry and safe. There was no reason for the vehicle to swerve because of road
condition. The only explanation for this occurrence was human error.
Petitioners reliance on the McKee case is also misplaced. In that case, the driver of the vehicle at fault,
a truck, had an opportunity to avoid the collision but he ignored the signals from the other vehicle, a car,
to slow down and allow it to safely pass the bridge. In this case, there was no such opportunity given the
Cimarron on the night of the mishap. Everything happened so quickly that before the passengers of the
Cimarron knew it, the vehicle had been bumped by the truck.
Second. On its liability as employer of the negligent driver, petitioner contends that the non-submission
of the NBI clearance and police clearance of its driver does not mean that it failed to exercise the diligence
of a good father of the family in the selection and supervision of its employees. It argues that there is no
law requiring employees to submit NBI and police clearance prior to their employment. Hence, petitioners
failure to require submission of these documents does not mean that it did not exercise due diligence in the
selection and supervision of its employees.On the other hand, it asserts that its employment of Herman
Hernandez as a driver means that he had passed the screening tests of the company, including submission
of the aforementioned documents. Petitioner maintains that the presumption is that the said driver
submitted NBI and police clearance.
Petitioner likewise contends that the Court of Appeals position that it failed to exercise due diligence in
the selection and supervision of its employees by not requiring its prospective employees to undergo
psychological and physical tests before employment has no basis in law because there is no law requiring
such tests prior to hiring employees.
The petitioners contention has no merit. The Court of Appeals did not say that petitioners failure to
submit NBI and police clearances of its driver was proof that petitioner failed to exercise due diligence in
the selection of its employees. What the Court of Appeals said was that petitioners policy of requiring
prospective employees to submit NBI and police clearance and to have at least two (2) years experience as
driver prior to employment was not enough to prove the exercise of due diligence and that even this policy
petitioner failed to prove by its failure to present the drivers NBI and police records during the trial.
With respect to the requirement of passing psychological and physical tests prior to his employment,
although no law requires it, such circumstance would certainly be a reliable indicator of the exercise of due
diligence. As the trial court said:[14]

. . . No tests of skill, physical as well as mental and emotional, were conducted on their would-be
employees. No on-the-job training and seminars reminding employees, especially drivers, of road courtesies
and road rules and regulations were done. There were no instructions given to defendants drivers as to how
to react in cases of emergency nor what to do after an emergency occurs. There was even failure on the
part of defendant to present its concerned employees 204 file. All these could only mean failure on the part
of defendant to exercise the diligence required of it of a good father of a family in the selection and
supervision of its employees.

Indeed, driving exacts a more than usual toll on the senses. [15] Accordingly, it behooves employers to exert
extra care in the selection and supervision of their employees. They must go beyond the minimum
requirements fixed by law. In this case, David Bautista, the office manager of petitioner in its Dasmarias
plant, said that petitioner has a policy of requiring job applicants to submit clearances from the police and
90
the NBI. In the case of applicants for the position of driver they are required to have at least two (2) years
driving experience and to be holders of a professional drivers license for at least two years. But the supposed
company policies on employment were not in writing. Nor did Bautista show in what manner he supervised
the drivers to ensure that they drove their vehicles in a safe way.
Third. With respect to the question of damages, we find no reversible error committed in the award of
actual damages to private respondents. To justify an award of actual damages, there must be competent
proof of the actual amount of loss. Credence can be given only to claims which are duly supported by
receipts.[16] Here, the actual damages claimed by private respondents were duly supported by receipts and
appear to have been really incurred.
As to the moral damages awarded, we find them to be reasonable and necessary in view of the
circumstances of this case. Moral damages are awarded to allow the victims to obtain means, diversion, or
amusement to alleviate the moral suffering they had undergone due to the defendants culpable action. [17] In
this case, private respondents doubtless suffered some ordeal because some of them lost their loved ones,
while others lost their future. Within the meaning of Art. 2217 of the Civil Code, they suffered sleepless
nights, mental anguish, serious anxiety, and wounded feelings. An award of moral damages in their favor
is thus justified.
The award of P50,000.00 to the heirs of Jason Bernabe as death indemnity is likewise in accordance
with law.[18] However, the award of P100,000 to the heirs of Dalmacio Salunoy, denominated in the decision
of the trial court as moral damages and unearned income cannot be upheld. The heirs were already included
among those awarded moral damages. Marilyn Salunoy was ordered to be paid P10,000, Jack
Salunoy, P10,000, and their mother Nenita Salunoy, P20,000, as moral damages. The amount of P100,000
was presumably awarded primarily for loss of earning capacity but even then the amount must be
modified. In accordance with our cases[19] on this question, the formula for determining the life expectancy
of Dalmacio Salunoy must be determined by applying the formula 2/3 multiplied by (80 minus the age of
the deceased). Since Salunoy was 46 years of age at the time of his death, as stated in his death certificate,
then his life expectancy was 22.6 years, or up to 68 years old.
Next, his net earnings must be computed. At the time of his death, Dalmacio Salunoy was earning more
than P900.00 a month as bookkeeper at the PMCI so that his annual gross earnings was
about P11,000.00. From this amount, about 50% should be deducted as reasonable and necessary living
expenses because it seems his wife occasionally finds work and thus helps in the household expenses.

Based on the foregoing, his net earning capacity was P124,300.00 computed as follows:[20]

net earning life

capacity (x) = expectancy x [Gross annual income less reasonable & necessary living expenses]

x = [2 (80-46)] x [P11,000 - P5,500]

3

= 22.6 x 5,500

= P124,300.00

In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death indemnity.
Finally, the award of attorneys fees should be disallowed as the trial court did not give any justification
for granting it in its decision. It is now settled that awards of attorneys fees must be based on findings of
fact and law, stated in the decision of the trial court.[21]
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the award
of P100,000.00 denominated for moral damages and unearned income is deleted, and in lieu thereof the
amount of P124,300.00 for loss of earning capacity and the further amount of P50,000.00 for death
indemnity are awarded to the heirs of Dalmacio Salunoy and the award of P50,000.00 for attorneys fees is
disallowed. In all other respects the appealed decision is AFFIRMED.
91
SO ORDERED.
Bellosillo (Chairman), Puno, and Martinez, JJ., concur.

92
G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR
and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its
owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite,
on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen
passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside
and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from
the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the
left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned.
At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite,
one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side
of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of
the bus. There is nothing in the evidence to show whether or not the passengers already free from the
wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo
with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned
bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four
passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape
from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and
the ground under and around it, and that the lighted torch brought by one of the men who answered the
call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly
identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in
behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory,
moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of
First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value
of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The
plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the
appeal to us because of the value involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their
goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.

93
 Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all
the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have acted
beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence
of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family could have prevented or stopped
the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also
agree with the trial court that there was negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified
to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses,
including that of the defense, from the point where one of the front tires burst up to the canal where the
bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-
out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus
must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal
and turned turtle.

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

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom.

94
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him
physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire,
say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned
to death, one might still contend that the proximate cause of his death was the fire and not the overturning
of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate
to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle
turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for
help, made not only by the passengers, but most probably, by the driver and the conductor themselves,
and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and
coming as they did from a rural area where lanterns and flashlights were not available; and what was more
natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men with a torch was to be expected and
was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call
for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the
carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on
the road walking back and forth. They, or at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and
soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a
large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor
would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near
the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as
well as the other elements entering into a damage award, we are satisfied that the amount of SIX
THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory,
moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the
legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal,
and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT
HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and
will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the
passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she
was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to
one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because
they were already old, and that as a matter of fact, he had been telling the driver to change the said tires,
but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not
been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite
his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to
believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the
criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either
failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses,
passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was
negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a
matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this
decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased
from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS
TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the
decision appealed is from hereby affirmed, with costs.
95
96
.R. No. 182356 December 4, 2013

DRA, LEILA A DELA LLANO, Petitioner,

vs.
REBECCA BIONG, doing business under the name and style of Pongkay Trading, Respondent.

DECISION

BRION, J.:

Very case essentially turns on two basic questions: questions of fact and questions of law. Questions of fact
are the parties and their counsel to respond to, based on what supporting facts the legal questions require;
the court can only draw conclusion from the facts or evidence adduced. When the facts are lacking because
of the deficiency of presented evidence, then the court can only draw one conclusion: that the cause must
fail for lack of evidentiary support.

The present case is one such case as Dra. Leila A dela Llana’s(petitioner) petition for review on
certorari1challenging the February 11, 2008 Decision 2 and the March 31, 2008 resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 89163.

The Factual Antecedents

On March 30, 2000, at around 11:00 p.m., Juan dela Llana was driving a 1997 Toyota Corolla car along
North Avenue, Quezon City.4

His sister, Dra. dela Llana, was seated at the front passenger seat while a certain Calimlim was at the
backseat.5

Juan stopped the car across the Veterans Memorial Hospital when the signal light turned red. A few seconds
after the car halted, a dump truck containing gravel and sand suddenly rammed the car’s rear end, violently
pushing the car forward. Due to the impact, the car’s rear end collapsed and its rear windshield was
shattered. Glass splinters flew, puncturing Dra. dela Llana. Apart from these minor wounds, Dra. dela Llana
did not appear to have suffered from any other visible physical injuries. 6

The traffic investigation report dated March 30, 2000 identified the truck driver as Joel Primero. It stated
that Joel was recklessly imprudent in driving the truck. 7

Joel later revealed that his employer was respondent Rebecca Biong, doing business under the name and
style of "Pongkay Trading" and was engaged in a gravel and sand business. 8

In the first week of May 2000, Dra. dela Llana began to feel mild to moderate pain on the left side of her
neck and shoulder. The pain became more intense as days passed by. Her injury became more severe. Her
health deteriorated to the extent that she could no longer move her left arm. On June 9, 2000, she consulted
with Dr. Rosalinda Milla, a rehabilitation medicine specialist, to examine her condition. Dr. Milla told her that
she suffered from a whiplash injury, an injury caused by the compression of the nerve running to her left
arm and hand. Dr. Milla required her to undergo physical therapy to alleviate her condition. Dra. dela Llana’s
condition did not improve despite three months of extensive physical therapy.9

She then consulted other doctors, namely, Drs. Willie Lopez, Leonor Cabral-Lim and Eric Flores, in search
for a cure. Dr. Flores, a neuro-surgeon, finally suggested that she undergo a cervical spine surgery to release
the compression of her nerve. On October 19, 2000, Dr. Flores operated on her spine and neck, between
the C5 and the C6 vertebrae.10

97
The operation released the impingement of the nerve, but incapacitated Dra. dela Llana from the practice
of her profession since June 2000 despite the surgery. 11

Dra. dela Llana, on October 16, 2000, demanded from Rebecca compensation for her injuries, but Rebecca
refused to pay.12

Thus, on May 8, 2001, Dra. dela Llana sued Rebecca for damages before the Regional Trial Court of Quezon
City (RTC). She alleged that she lost the mobility of her arm as a result of the vehicular accident and claimed
₱150,000.00 for her medical expenses (as of the filing of the complaint) and an average monthly income of
₱30,000.00 since June 2000. She further prayed for actual, moral, and exemplary damages as well as
attorney’s fees.13

In defense, Rebecca maintained that Dra. dela Llana had no cause of action against her as no reasonable
relation existed between the vehicular accident and Dra. dela Llana’s injury. She pointed out that Dra. dela
Llana’s illness became manifest one month and one week from the date of the vehicular accident. As a
counterclaim, she demanded the payment of attorney’s fees and costs of the suit. 14

At the trial, Dra. dela Llana presented herself as an ordinary witness15 and Joel as a hostile witness.16

Dra. dela Llana reiterated that she lost the mobility of her arm because of the vehicular accident. To prove
her claim, she identified and authenticated a medical certificate dated November 20, 2000 issued by Dr.
Milla. The medical certificate stated that Dra. dela Llana suffered from a whiplash injury. It also chronicled
her clinical history and physical examinations.17

Meanwhile, Joel testified that his truck hit the car because the truck’s brakes got stuck. 18

In defense, Rebecca testified that Dra. dela Llana was physically fit and strong when they met several days
after the vehicular accident. She also asserted that she observed the diligence of a good father of a family
in the selection and supervision of Joel. She pointed out that she required Joel to submit a certification of
good moral character as well as barangay, police, and NBI clearances prior to his employment. She also
stressed that she only hired Primero after he successfully passed the driving skills test conducted by Alberto
Marcelo, a licensed driver-mechanic.19

Alberto also took the witness stand. He testified that he checked the truck in the morning of March 30, 2000.
He affirmed that the truck was in good condition prior to the vehicular accident. He opined that the cause
of the vehicular accident was a damaged compressor. According to him, the absence of air inside the tank
damaged the compressor.20

RTC Ruling

The RTC ruled in favor of Dra. dela Llana and held that the proximate cause of Dra. dela Llana’s whiplash
injury to be Joel’s reckless driving.21

It found that a whiplash injury is an injury caused by the sudden jerking of the spine in the neck area. It
pointed out that the massive damage the car suffered only meant that the truck was over-speeding. It
maintained that Joel should have driven at a slower pace because road visibility diminishes at night. He
should have blown his horn and warned the car that his brake was stuck and could have prevented the
collision by swerving the truck off the road. It also concluded that Joel was probably sleeping when the
collision occurred as Joel had been driving for fifteen hours on that fateful day. The RTC further declared
that Joel’s negligence gave rise to the presumption that Rebecca did not exercise the diligence of a good
father of a family in Joel's selection and supervision of Joel. Rebecca was vicariously liable because she was
the employer and she personally chose him to drive the truck. On the day of the collision, she ordered him
to deliver gravel and sand to Muñoz Market, Quezon City. The Court concluded that the three elements
necessary to establish Rebecca’s liability were present: (1) that the employee was chosen by the employer,
personally or through another; (2) that the services were to be rendered in accordance with orders which
98
the employer had the authority to give at all times; and (3) that the illicit act of the employee was on the
occasion or by reason of the functions entrusted to him. The RTC thus awarded Dra. dela Llana the amounts
of ₱570,000.00 as actual damages, ₱250,000.00 as moral damages, and the cost of the suit. 22

CA Ruling

In a decision dated February 11, 2008, the CA reversed the RTC ruling. It held that Dra. dela Llana failed to
establish a reasonable connection between the vehicular accident and her whiplash injury by preponderance
of evidence. Citing Nutrimix Feeds Corp. v. Court of Appeals, 23 it declared that courts will not hesitate to
rule in favor of the other party if there is no evidence or the evidence is too slight to warrant an inference
establishing the fact in issue. It noted that the interval between the date of the collision and the date when
Dra. dela Llana began to suffer the symptoms of her illness was lengthy. It concluded that this interval
raised doubts on whether Joel’s reckless driving and the resulting collision in fact caused Dra. dela Llana’s
injury. It also declared that courts cannot take judicial notice that vehicular accidents cause whiplash
injuries. It observed that Dra. dela Llana did not immediately visit a hospital to check if she sustained
internal injuries after the accident. Moreover, her failure to present expert witnesses was fatal to her claim.
It also gave no weight to the medical certificate. The medical certificate did not explain how and why the
vehicular accident caused the injury.24

The Petition

Dra. dela Llana points out in her petition before this Court that Nutrimix is inapplicable in the present case.
She stresses that Nutrimix involved the application of Article 1561 and 1566 of the Civil Code, provisions
governing hidden defects. Furthermore, there was absolutely no evidence in Nutrimix that showed that
poisonous animal feeds were sold to the respondents in that case. As opposed to the respondents in
Nutrimix, Dra. dela Llana asserts that she has established by preponderance of evidence that Joel’s egligent
act was the proximate cause of her whiplash injury. First, pictures of her damaged car show that the
collision was strong. She posits that it can be reasonably inferred from these pictures that the massive
impact resulted in her whiplash injury. Second, Dr. Milla categorically stated in the medical certificate that
Dra. dela Llana suffered from whiplash injury. Third, her testimony that the vehicular accident caused the
injury is credible because she was a surgeon.

Dra. dela Llana further asserts that the medical certificate has probative value. Citing several cases, she
posits that an uncorroborated medical certificate is credible if uncontroverted.25

She points out that expert opinion is unnecessary if the opinion merely relates to matters of common
knowledge. She maintains that a judge is qualified as an expert to determine the causation between Joel’s
reckless driving and her whiplash injury. Trial judges are aware of the fact that whiplash injuries are common
in vehicular collisions.

The Respondent’s Position

In her Comment,26 Rebecca points out that Dra. dela Llana raises a factual issue which is beyond the scope
of a petition for review on certiorari under Rule 45 of the Rules of Court. She maintains that the CA’s findings
of fact are final and conclusive. Moreover, she stresses that Dra. dela Llana’s arguments are not substantial
to merit this Court’s consideration.

The Issue

The sole issue for our consideration in this case is whether Joel’s reckless driving is the proximate cause of
Dra. dela Llana’s whiplash injury.

Our Ruling We find the petition unmeritorious.

99
The Supreme Court may review questions of fact in a petition for review on certiorari when the findings of
fact by the lower courts are conflicting

The issue before us involves a question of fact and this Court is not a trier of facts. As a general rule, the
CA’s findings of fact are final and conclusive and this Court will not review them on appeal. It is not the
function of this Court to examine, review or evaluate the evidence in a petition for review on certiorari under
Rule 45 of the Rules of Court. We can only review the presented evidence, by way of exception, when the
conflict exists in findings of the RTC and the CA.27

We see this exceptional situation here and thus accordingly examine the relevant evidence presented before
the trial court.

Dra. dela Llana failed to establish her case by preponderance of evidence

Article 2176 of the Civil Code provides that "[w]hoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is a quasi-delict." Under this provision, the elements
necessary to establish a quasi-delict case are:

(1) damages to the plaintiff;

(2) negligence, by act or omission, of the defendant or by some person for whose acts the defendant
must respond, was guilty; and

(3) the connection of cause and effect between such negligence and the damages. 28

These elements show that the source of obligation in a quasi-delict case is the breach or omission of mutual
duties that civilized society imposes upon its members, or which arise from non-contractual relations of
certain members of society to others.29

Based on these requisites, Dra. dela Llana must first establish by preponderance of evidence the three
elements of quasi-delict before we determine Rebecca’s liability as Joel’s employer.

She should show the chain of causation between Joel’s reckless driving and her whiplash injury.

Only after she has laid this foundation can the presumption - that Rebecca did not exercise the diligence of
a good father of a family in the selection and supervision of Joel - arise.30

Once negligence, the damages and the proximate causation are established, this Court can then proceed
with the application and the interpretation of the fifth paragraph of Article 2180 of the Civil Code. 31

Under Article 2176 of the Civil Code, in relation with the fifth paragraph of Article 2180, "an action predicated
on an employee’s act or omission may be instituted against the employer who is held liable for the negligent
act or omission committed by his employee."32

The rationale for these graduated levels of analyses is that it is essentially the wrongful or negligent act or
omission itself which creates the vinculum juris in extra-contractual obligations.33

In civil cases, a party who alleges a fact has the burden of proving it.

He who alleges has the burden of proving his allegation by preponderance of evidence or greater weight of
credible evidence.34

The reason for this rule is that bare allegations, unsubstantiated by evidence, are not equivalent to proof.
100
In short, mere allegations are not evidence.35

In the present case, the burden of proving the proximate causation between Joel’s negligence and Dra. dela
Llana’s whiplash injury rests on Dra. dela Llana. She must establish by preponderance of evidence that Joel’s
negligence, in its natural and continuous sequence, unbroken by any efficient intervening cause, produced
her whiplash injury, and without which her whiplash injury would not have occurred.36

Notably, Dra. dela Llana anchors her claim mainly on three pieces of evidence:

(1) the pictures of her damaged car,

(2) the medical certificate dated November 20, 2000, and

(3) her testimonial evidence. However, none of these pieces of evidence show the causal relation
between the vehicular accident and the whiplash injury. In other words,

Dra. dela Llana, during trial, did not adduce the factum probans or the evidentiary facts by which the factum
probandum or the ultimate fact can be established, as fully discussed below. 37

A.

The pictures of the damaged

car only demonstrate the
impact of the collision

Dra. dela Llana contends that the pictures of the damaged car show that the massive impact of the collision
caused her whiplash injury. We are not persuaded by this bare claim. Her insistence that these pictures
show the causation grossly belies common logic. These pictures indeed demonstrate the impact of the
collision. However, it is a far-fetched assumption that the whiplash injury can also be inferred from these
pictures.

B.

The medical certificate cannot be

considered because it was
not admitted in evidence

Furthermore, the medical certificate, marked as Exhibit "H" during trial, should not be considered in resolving
this case for the reason that it was not admitted in evidence by the RTC in an order dated September 23,
2004.38

Thus, the CA erred in even considering this documentary evidence in its resolution of the case. It is a basic
rule that evidence which has not been admitted cannot be validly considered by the courts in arriving at
their judgments.

However, even if we consider the medical certificate in the disposition of this case, the medical certificate
has no probative value for being hearsay. It is a basic rule that evidence, whether oral or documentary, is
hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge
of another person who is not on the witness stand.39

Hearsay evidence, whether objected to or not, cannot be given credence 40 except in very unusual
circumstance that is not found in the present case. Furthermore, admissibility of evidence should not be
equated with weight of evidence. The admissibility of evidence depends on its relevance and competence,
while the weight of evidence pertains to evidence already admitted and its tendency to convince and

101
persuade. Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on
judicial evaluation within the guidelines provided by the Rules of Court. 41

During trial, Dra. dela Llana testified:

"Q: Did your physician tell you, more or less, what was the reason why you were feeling that pain in your
left arm?

A: Well, I got a certificate from her and in that certificate, she stated that my condition was due to a
compression of the nerve, which supplied my left arm and my left hand.

Court: By the way, what is the name of this physician, Dra.?

Witness: Her name is Dra. Rosalinda Milla. She is a Rehabilitation Medicine Specialist. Atty. Yusingco: You
mentioned that this Dra. Rosalinda Milla made or issued a medical certificate. What relation does this medical
certificate, marked as Exhibit H have to do with that certificate, you said was made by Dra. Milla?

Witness: This is the medical certificate that Dra. Milla made out for me.

Atty. Yusingco: Your Honor, this has been marked as Exhibit H.

Atty. Yusingco: What other medical services were done on you, Dra. dela Llana, as a result of that feeling,
that pain that you felt in your left arm?

Witness: Well, aside from the medications and physical therapy, a re-evaluation of my condition after three
months indicated that I needed surgery.

Atty. Yusingco: Did you undergo this surgery?

Witness: So, on October 19, I underwent surgery on my neck, on my spine.

Atty. Yusingco: And, what was the result of that surgical operation?

Witness: Well, the operation was to relieve the compression on my nerve, which did not resolve by the
extensive and prolonged physical therapy that I underwent for more than three months." 42(emphasis ours)

Evidently, it was Dr. Milla who had personal knowledge of the contents of the medical
certificate.1âwphi1 However, she was not presented to testify in court and was not even able to identify and
affirm the contents of the medical certificate. Furthermore, Rebecca was deprived of the opportunity to
cross-examine Dr. Milla on the accuracy and veracity of her findings. We also point out in this respect that
the medical certificate nonetheless did not explain the chain of causation in fact between Joel’s reckless
driving and Dra. dela Llana’s whiplash injury. It did not categorically state that the whiplash injury was a
result of the vehicular accident. A perusal of the medical certificate shows that it only attested to her medical
condition, i.e., that she was suffering from whiplash injury. However, the medical certificate failed to
substantially relate the vehicular accident to Dra. dela Llana’s whiplash injury. Rather, the medical certificate
only chronicled her medical history and physical examinations.

C.

Dra. dela Llana’s opinion that

Joel’s negligence caused her
whiplash injury has no probative value

102
Interestingly, the present case is peculiar in the sense that Dra. dela Llana, as the plaintiff in this quasi-
delict case, was the lone physician-witness during trial. Significantly, she merely testified as an ordinary
witness before the trial court. Dra. dela Llana essentially claimed in her testimony that Joel’s reckless driving
caused her whiplash injury. Despite the fact that Dra. dela Llana is a physician and even assuming that she
is an expert in neurology, we cannot give weight to her opinion that Joel’s reckless driving caused her
whiplash injury without violating the rules on evidence. Under the Rules of Court, there is a substantial
difference between an ordinary witness and an expert witness. The opinion of an ordinary witness may be
received in evidence regarding:

(a) the identity of a person about whom he has adequate knowledge;

(b) a handwriting with which he has sufficient familiarity; and

(c) the mental sanity of a person with whom he is sufficiently acquainted.1âwphi1 Furthermore, the
witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person.43

On the other hand, the opinion of an expert witness may be received in evidence on a matter requiring
special knowledge, skill, experience or training which he shown to possess. 44

However, courts do not immediately accord probative value to an admitted expert testimony, much less to
an unobjected ordinary testimony respecting special knowledge. The reason is that the probative value of
an expert testimony does not lie in a simple exposition of the expert's opinion. Rather, its weight lies in the
assistance that the expert witness may afford the courts by demonstrating the facts which serve as a basis
for his opinion and the reasons on which the logic of his conclusions is founded.45

In the present case, Dra. dela Llana’s medical opinion cannot be given probative value for the reason that
she was not presented as an expert witness. As an ordinary witness, she was not competent to testify on
the nature, and the cause and effects of whiplash injury. Furthermore, we emphasize that Dra. dela Llana,
during trial, nonetheless did not provide a medical explanation on the nature as well as the cause and effects
of whiplash injury in her testimony.

The Supreme Court cannot take

judicial notice that vehicular
accidents cause whiplash injuries.

Indeed, a perusal of the pieces of evidence presented by the parties before the trial court shows that Dra.
Dela Llana did not present any testimonial or documentary evidence that directly shows the
causal relation between the vehicular accident and Dra. Dela Llana’s injury. Her claim that Joel’s
negligence causes her whiplash injury was not established because of the deficiency of the presented
evidence during trial. We point out in this respect that courts cannot take judicial notice that vehicular
ccidents cause whiplash injuries. This proportion is not public knowledge, or is capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions. 46 We have no expertise
in the field of medicine. Justices and judges are only tasked to apply and interpret the law on the basis of
the parties’ pieces of evidence and their corresponding legal arguments.

In sum, Dra. dela Llana miserably failed to establish her cause by preponderance of evidence. While we
commiserate with her, our solemn duty to independently and impartially assess the merits of the case binds
us to rule against Dra. dela Llana’s favor. Her claim, unsupported by prepondernace of evidence, is merely
a bare assertion and has no leg to stand on.

WHEREFORE, presmises considered, the assailed Decision dated February 11, 2008 and Resolution dated
March 31, 2008 of the Court of Appeals are hereby AFFIRMED and the petition is hereby DENIED for lack of
merit.
SO ORDERED.
103
104
SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS VDA. DE
DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and
MILAGROS DIMAANO, respondents.

DECISION
PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision [1] promulgated
on July 31, 1996, and Resolution [2] dated September 12, 1996 of the Court of Appeals[3] in CA-G.R. No.
41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc., which reduced the
moral damages awarded below from P1,000,000.00 to P200,000.00.[4] The Resolution under attack denied
petitioners motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a
four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the
morning, a powerful typhoon Saling hit Metro Manila.Buffeted by very strong winds, the roof of petitioners
building was partly ripped off and blown away, landing on and destroying portions of the roofing of private
respondents house. After the typhoon had passed, an ocular inspection of the destroyed buildings was
conducted by a team of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects
of the latters Report[5] dated October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the buildings in the area
and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-
storey building. Thus, with the strong winds having a westerly direction, the general formation of the
buildings becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest
impact of the strong winds. Hence, there are portions of the roofing, those located on both ends of the
building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural trusses is
the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel bars embedded on
the concrete roof beams which serve as truss anchorage are not bolted nor nailed to the trusses. Still, there
are other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to
the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs and property of persons
living in the vicinity, the fourth floor of subject school building be declared as a structural hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for damages based
on culpa aquiliana, private respondents alleged that the damage to their house rendered the same
uninhabitable, forcing them to stay temporarily in others houses.And so they sought to recover from
petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary
damages and P100,000.00, for and as attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several devastating
typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it has
not been remiss in its responsibility to see to it that said school building, which houses school children,
faculty members, and employees, is in tip-top condition; and furthermore, typhoon Saling was an act of
God and therefore beyond human control such that petitioner cannot be answerable for the damages
wrought thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that subject school building
had a defective roofing structure, found that, while typhoon Saling was accompanied by strong winds, the
damage to private respondents house could have been avoided if the construction of the roof of [petitioners]
building was not faulty. The dispositive portion of the lower courts decision [7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff (sic) and
against the defendants, (sic) ordering the latter to pay jointly and severally the former as follows:
105
a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in a wanton
fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors,[8] that:

I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD, IS NOT
THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF
OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF
DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE ADMISSION THAT THERE
WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON SALING WHICH IS THE DIRECT AND
PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS
ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY
HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR
PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION INSPITE
OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE IS NO COMPELLING REASON FOR
THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts disposition
by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence, petitioners resort to
this Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of speculation or
conjecture, without proof or receipts of actual damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the latter having suffered,
actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject matter of the
case, during its pendency, has the right to pursue their complaint against petitioner when the case was
already rendered moot and academic by the sale of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and academic [sic] legally
justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an act of God.

106
6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing, has
support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the
building of private respondents resulting from the impact of the falling portions of the school buildings roof
ripped off by the strong winds of typhoon Saling, was, within legal contemplation, due to fortuitous event? If
so, petitioner cannot be held liable for the damages suffered by the private respondents. This conclusion
finds support in Article 1174 of the Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an event
which takes place by accident and could not have been foreseen.[9] Escriche elaborates it as an unexpected
event or act of God which could neither be foreseen nor resisted. [10] Civilist Arturo M. Tolentino adds that
[f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms,
floods, epidemics, fires, etc. and (2) by the act of man, such as an armed invasion, attack by bandits,
governmental prohibitions, robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from
any previous negligence or misconduct by reason of which the loss may have been occasioned. [12] An act of
God cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying
to forestall its possible adverse consequences. When a persons negligence concurs with an act of God in
producing damage or injury to another, such person is not exempt from liability by showing that the
immediate or proximate cause of the damage or injury was a fortuitous event. When the effect is found to
be partly the result of the participation of man whether it be from active intervention, or neglect, or failure
to act the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. [13]
In the case under consideration, the lower court accorded full credence to the finding of the investigating
team that subject school buildings roofing had no sufficient anchorage to hold it in position especially when
battered by strong winds. Based on such finding, the trial court imputed negligence to petitioner and
adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes otherwise,
notwithstanding the general rule that factual findings by the trial court, especially when affirmed by the
appellate court, are binding and conclusive upon this Court.[14]After a careful scrutiny of the records and the
pleadings submitted by the parties, we find exception to this rule and hold that the lower courts
misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be
foreseen but is unavoidable despite any amount of foresight, diligence or care.[15] In order to be exempt
from liability arising from any adverse consequence engendered thereby, there should have been no human
participation amounting to a negligent act.[16] In other words, the person seeking exoneration from liability
must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or
reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly demand,[17] or the omission to do something which
a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of human
affairs, would do.[18] From these premises, we proceed to determine whether petitioner was negligent, such
that if it were not, the damage caused to private respondents house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence of another has
the burden of proving the existence of fault or negligence causative of his injury or loss. The facts
constitutive of negligence must be affirmatively established bycompetent evidence,[19] not merely by
presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability of
petitioner, merely relied on the aforementioned report submitted by a team which made an ocular inspection
of petitioners school building after the typhoon. As the term imparts, an ocular inspection is one by means
of actual sight or viewing.[20] What is visual to the eye though, is not always reflective of the real cause
107
behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always definitely
conclude that a third person shot the victim. It could have been self-inflicted or caused accidentally by a
stray bullet. The relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was conducted to determine
the real cause of the partial unroofing of petitioners school building. Private respondents did not even show
that the plans, specifications and design of said school building were deficient and defective. Neither did
they prove any substantial deviation from the approved plans and specifications. Nor did they conclusively
establish that the construction of such building was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private respondents, city building
official Jesus Reyna, that the original plans and design of petitioners school building were approved prior to
its construction. Engr. Reyna admitted that it was a legal requirement before the construction of any building
to obtain a permit from the city building official (city engineer, prior to the passage of the Building Act of
1977). In like manner, after construction of the building, a certification must be secured from the same
official attesting to the readiness for occupancy of the edifice. Having obtained both building permit and
certificate of occupancy, these are, at the very least, prima facie evidence of the regular and proper
construction of subject school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon Saling, the same
city official gave the go-signal for such repairs without any deviation from the original design and
subsequently, authorized the use of the entire fourth floor of the same building. These only prove that
subject building suffers from no structural defect, contrary to the report that its U-shaped form was
structurally defective. Having given his unqualified imprimatur, the city building official is presumed to have
properly performed his duties[23] in connection therewith.
In addition, petitioner presented its vice president for finance and administration who testified that an
annual maintenance inspection and repair of subject school building were regularly undertaken. Petitioner
was even willing to present its maintenance supervisor to attest to the extent of such regular inspection but
private respondents agreed to dispense with his testimony and simply stipulated that it would be
corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service since 1974, admitted
in open court that no complaint regarding any defect on the same structure has ever been lodged before
his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are
common occurrences in this country. If subject school buildings roofing was not firmly anchored to its
trusses, obviously, it could not have withstood long years and several typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the
appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the
construction and maintenance of its school building in question and that typhoon Saling was the proximate
cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral damages as
well as attorneys fees must fail.[24] Petitioner cannot be made to answer for a purely fortuitous
event.[25] More so because no bad faith or willful act to cause damage was alleged and proven to warrant
moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually
incurred.[26] It is not enough that the damage be capable of proof but must be actually proved with a
reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever
compensatory damages are borne.[27] Private respondents merely submitted an estimated amount needed
for the repair of the roof of their subject building. What is more, whether the necessary repairs were caused
ONLY by petitioners alleged negligence in the maintenance of its school building, or included the ordinary
wear and tear of the house itself, is an essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial court is
hereby nullified and set aside. Private respondents are ordered to reimburse any amount or return to
petitioner any property which they may have received by virtue of the enforcement of said writ.
108
 WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The complaint of
private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the writ
of execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private respondents are
ORDERED to return to petitioner any amount or property received by them by virtue of said writ. Costs
against the private respondents.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.

109
DY TEBAN TRADING, INC., G.R. No. 161803
JOSE CHING AND/OR LIBERTY
FOREST, INC. and CRESILITO Promulgated:
M. LIMBAGA,
Respondents. February 4, 2008

DECISION

REYES, R.T., J.:

THE vehicular collision resulting in damages and injuries in this case could have been avoided if the
stalled prime mover with trailer were parked properly and equipped with an early warning device. It is high
time We sounded the call for strict enforcement of the law and regulation on traffic and vehicle
registration. Panahon na para mahigpit na ipatupad ang batas at regulasyon sa trapiko at
pagpapatala ng sasakyan.

Before Us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA)
modifying that[2] of the Regional Trial Court (RTC) in
Butuan City finding private respondents Liberty Forest, Inc. and Cresilito Limbaga liable to petitioner Dy
Teban Trading, Inc. for damages.

Facts

On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora, was driving a
Nissan van owned by petitioner Dy Teban Trading, Inc. along the National
Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering commercial ice to
nearby barangays and municipalities. A Joana Paula passenger bus was cruising on the opposite lane
towards the van. In between the two vehicles was a parked prime mover with a trailer, owned by private
respondent Liberty Forest, Inc.[3]

The night before, at around 10:00 p.m., the prime mover with trailer suffered a tire blowout. The
driver, private respondent Cresilito Limbaga, parked the prime mover askew occupying a substantial portion
of the national highway, on the lane of the passenger bus. He parked the prime mover with trailer at the
110
shoulder of the road with the left wheels still on the cemented highway and the right wheels on the sand
and gravel shoulder of the highway.[4] The prime mover was not equipped with triangular, collapsible
reflectorized plates, the early warning device required under Letter of Instruction No. 229. As substitute,
Limbaga placed a banana trunk with leaves on the front and the rear portion of the prime mover to warn
incoming motorists. It is alleged that Limbaga likewise placed kerosene lighted tin cans on the front and
rear of the trailer.[5]

To avoid hitting the parked prime mover occupying its lane, the incoming passenger bus swerved to
the right, onto the lane of the approaching Nissan van. Ortiz saw two bright and glaring headlights and the
approaching passenger bus. He pumped his break slowly, swerved to the left to avoid the oncoming bus but
the van hit the front of the stationary prime mover. The passenger bus hit the rear of the prime mover.[6]

Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable as a
result of the incident. After the collision, SPO4 Teofilo Pame conducted an investigation and submitted a
police traffic incident investigation report.[7]

On October 31, 1995, petitioner Nissan van owner filed a complaint for damages [8] against private
respondents prime mover owner and driver with the RTC in Butuan City. The Joana Paula passenger bus
was not impleaded as defendant in the complaint.

RTC Disposition

On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban Trading, Inc. with
a fallo reading:

WHEREFORE, judgment is hereby rendered directing, ordaining and ordering:

a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay, jointly
and solidarily, plaintiff Dy Teban Trading, Inc. the amounts of P279,832.00
as actual and compensatory damages, P30,000.00 as attorneys fees
and P5,000.00 as expenses of litigation;

b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;

111
 c) That defendant Jose Ching is absolved from any civil liability or the case
against him dismissed;

d) That the counterclaim of all the defendants is dismissed; and

e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to pay, jointly
and solidarily, the costs.

SO ORDERED.[9]

The RTC held that the proximate cause of the three-way vehicular collision was improper parking of
the prime mover on the national highway and the absence of an early warning device on the vehicle, thus:

The court finds that the proximate cause of the incidents is the negligence and
carelessness attributable to the defendants. When the trailer being pulled by the prime mover
suffered two (2) flat tires at Sumilihon, the prime mover and trailer were parked haphazardly,
as the right tires of the prime mover were the only ones on the sand and gravel shoulder of
the highway while the left tires and all the tires of the trailer were on the cemented pavement
of the highway, occupying almost the whole of the right lane on the direction the prime mover
and trailer were traveling. The statement of Limbaga that he could not park the prime mover
and trailer deeper into the sand and gravel shoulder of the highway to his right because there
were banana plants is contradicted by the picture marked Exhibit F. The picture shows that
there was ample space on the shoulder. If defendant Limbaga was careful and prudent
enough, he should have the prime mover and trailer traveled more distance forward so that
the bodies of the prime mover and trailer would be far more on the shoulder rather than on
the cemented highway when they were parked. x x x The court has some doubts on the
statement of witness-driver Limbaga that there were banana trunks with leaves and lighted
tin cans with crude oil placed 3 strides in front of the prime mover and behind the trailer
because the testimonies of witnesses Rogelio C. Ortiz, driver of the ice van, Romeo D.
Catamora, helper of the ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show
that there were no banana trunks with leaves and lighted tin cans at the scene of the
incident. But even assuming that there were banana trunks with leaves but they were placed
close to the prime mover and trailer as they were placed 3 strides away which to the mind of
the court is equivalent approximately to 3 meters and with this distance, approaching vehicles
would have no sufficient time and space to make a complete stop, especially if the vehicles
are heavy and loaded. If there were lighted tin cans, it was not explained by the defendants
why the driver, especially driver witness Ortiz, did not see them.

xxxx

112
 Defendant Liberty Forest, Inc. did not exercise the diligence of a good father of a family in
managing and running its business. The evidence on record shows that it failed to provide its
prime mover and trailer with the required early warning devices with reflectors and it did not
keep proper maintenance and condition of the prime mover and the trailer. The circumstances
show that the trailer were provided with wornout tires and with only one (1) piece of spare
tire. The pictures marked Exhibit 3 and 4 show that two (2) flat tires suffered by the trailer
and these two (2) tires were attached to one of the two (2) I-beams or axles attached to the
rear of the trailer which axle is very near but behind the other axle and with the location of
the 2 I-beams, it would have the other I-beam that would have suffered the flat tires as it
has to bear the brunt of weight of the D-8 bulldozer. The bulldozer was not loaded directly
above the two (2) I-beams as 2 I-beams, as a pair, were attached at the far rear end of the
trailer.

xxxx

However, defendant Jose Ching should be absolved of any liability as there is no showing that
he is the manager or CEO of defendant Liberty Forest, Inc. Although in the answer, it is
admitted that he is an officer of the defendant corporation, but it is not clarified what kind of
position he is holding, as he could be an officer as one of the members of the Board of
Directors or a cashier and treasurer of the corporation. Witness Limbaga in his testimony
mentioned a certain Boy Ching as the Manager but it was never clarified whether or not Boy
Ching and defendant Jose Ching is one and the same person.[10]

Private respondents appealed to the CA.

CA Disposition

On August 28, 2003, the CA reversed the RTC decision, disposing as follows:

WHEREFORE, premises considered, the decision dated August 7, 2001 of the Regional Trial
Court, Branch 2, Butuan City in Civil Case No. 4360 is hereby PARTLY MODIFIED by
absolving the defendants-appellants/appellees of any liability to plaintiffs-
appellants/appellees by reason of the incident on July 4, 1995.

The dismissal of the case against Jose Ching, the counterclaim of defendants-
appellants/appellees and the money claim of Rogelio Ortiz STANDS.

SO ORDERED.[11]

113
 In partly reversing or partly modifying the RTC decision, the CA held that the proximate cause of the
vehicular collision was the failure of the Nissan van to give way or yield to the right of way of the passenger
bus, thus:

It was stated that the Joana Paula bus in trying to avoid a head-on collision with the
truck, sideswept the parked trailer loaded with bulldozer.

Evidently, the driver of the Joana Paula bus was aware of the presence on its lane of the
parked trailer with bulldozer. For this reason, it proceeded to occupy what was left of its lane
and part of the opposite lane. The truck occupying the opposite lane failed to give way or
yield the right of way to the oncoming bus by proceeding with the same speed. The two
vehicles were, in effect, trying to beat each other in occupying a single lane. The bus was the
first to occupy the said lane but upon realizing that the truck refused to give way or yield the
right of way, the bus, as a precaution, geared to its right where the trailer was
parked. Unfortunately, the bus miscalculated its distance from the parked trailer and its rear
right side hit the protruding blade of the bulldozer then on the top of the parked trailer. The
impact of the collision on its right rear side with the blade of the bulldozer threw the bus
further to the opposite lane, landing its rear portion on the shoulder of the opposite lane.

xxxx

Facts of the case reveal that when Ortiz, the driver of the truck, failed to give the Joana Paula
bus the space on the road it needed, the latter vehicle scraped its rear right side on the
protruded bulldozer blade and the impact threw the bus directly on the path of the oncoming
truck.This made plaintiffs-appellants/appellees conclude that the Joana Paula bus occupied
its lane which forced Ortiz, the driver of the truck, to swerve to its left and ram the front of
the parked trailer.

xxxx

The trailer was parked because its two (2) rear-left tires were blown out. With a bulldozer on
top of the trailer and two (2) busted tires, it would be dangerous and quite impossible for the
trailer to further park on the graveled shoulder of the road. To do so will cause the flat car to
tilt and may cause the bulldozer to fall from where it was mounted. In fact, it appeared that

114
 the driver of the trailer tried its best to park on the graveled shoulder since the right-front
tires were on the graveled shoulder of the road.

The lower court erred in stating that the Joana Paula bus swerved to the left of the truck
because it did not see the parked trailer due to lack of warning sign of danger of any kind
that can be seen from a distance. The damage suffered by the Joana Paula bus belied this
assessment.As stated before, the Joana Paula bus, with the intention of passing first which it
did, first approached the space beside the parked trailer, veered too close to the parked trailer
thereby hitting its rear right side on the protruding bulldozer blade. Since the damage was on
the rear right most of the bus, it was clearly on the space which was wide enough for a single
passing vehicle but not sufficient for two (2) passing vehicles. The bus was thrown right to
the path of the truck by the impact of the collision of its rear right side with the bulldozer
blade.[12]

The CA disagreed with the RTC that the prime mover did not have an early warning device. The appellate
court accepted the claim of private respondent that Limbaga placed kerosene lighted tin cans on the front
and rear of the trailer which, in Baliwag Transit, Inc. v. Court of Appeals,[13] may act as substitute early
warning device. The CA stated:

Likewise, it was incorrect for the lower court to state that there was no warning sign of danger
of any kind, most probably referring to the absence of the triangular reflectorized plates. The
police sketch clearly indicated the stack of banana leaves placed at the rear of the parked
trailer. The trailers driver testified that they placed kerosene lighted tin can at the back of the
parked trailer.

A pair of triangular reflectorized plates is not the only early warning device allowed by law. The
Supreme Court (in Baliwag Transit, Inc. v. Court of Appeals) held that:

x x x Col. Dela Cruz and Romano testified that they did not see any early
warning device at the scene of the accident. They were referring to the
triangular reflectorized plates in red and yellow issued by the Land
Transportation Office. However, the evidence shows that Recontique and Ecala
placed a kerosene lamp or torch at the edge of the road, near the rear portion
of the truck to serve as an early warning device. This substantially complies
with Section 34(g) of the Land Transportation and Traffic Code x x x

Baliwags argument that the kerosene lamp or torch does not substantially
comply with the law is untenable. The aforequoted law clearly allows the use
not only of an early warning device of the triangular reflectorized plates variety
but also parking lights or flares visible one hundred meters away. x x x.

115
 This Court holds that the defendants-appellants/appellees were not negligent in parking the
trailer on the scene of the accident. It would have been different if there was only one flat tire
and defendant-appellant/appellee Limbaga failed to change the same and left immediately.

As such, defendants-appellants/appellees are not liable for the damages suffered by plaintiffs-
appellants/appellees. Whatever damage plaintiffs-appellants/appellees suffered, they alone
must bear them.[14]

Issues

Petitioner raises two issues[15] for Our consideration, to wit:

I.

THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE

EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE WERE EARLY WARNING DEVICES
PLACED IN FRONT OF THE DEFENDANT-APPELLANTS/APPELLEES TRUCK AND FLAT CAR TO
WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR PRESENCE.

II.

WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY WARNING
DEVICES IN THE PUBLIC INTEREST.

Our Ruling

The petition is meritorious.

The meat of the petition is whether or not the prime mover is liable for the damages suffered by the
Nissan van. The RTC ruled in the affirmative holding that the proximate cause of the vehicular collision was
the negligence of Limbaga in parking the prime mover on the national highway without an early warning

116
device on the vehicle. The CA reversed the RTC decision, holding that the proximate cause of the collision
was the negligence of Ortiz in not yielding to the right of way of the passenger bus.

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict. To sustain a claim based
on quasi-delict, the following requisites must concur: (a) damage suffered by plaintiff; (b) fault or negligence
of defendant; and (c) connection of cause and effect between the fault or negligence of defendant and the
damage incurred by plaintiff.[16]

There is no dispute that the Nissan van suffered damage. That is borne by the records and conceded by the
parties. The outstanding issues are negligence and proximate cause. Tersely put, the twin issues are: (a)
whether or not prime mover driver Limbaga was negligent in parking the vehicle; and (b) whether or not
his negligence was the proximate cause of the damage to the Nissan van.

Limbaga was negligent in parking the prime mover on the

national highway; he failed to prevent or minimize the risk
to oncoming motorists.

Negligence is defined as the failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.[17] The Supreme Court stated the test of negligence in the landmark case Picart v.
Smith[18] as follows:

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

The test of negligence is objective. We measure the act or omission of the tortfeasor with that of an
ordinary reasonable person in the same situation. The test, as applied to this case, is whether Limbaga, in

117
parking the prime mover, used that reasonable care and caution which an ordinary reasonable person would
have used in the same situation.

We find that Limbaga was utterly negligent in parking the prime mover askew on the right side of
the national highway. The vehicle occupied a substantial portion of the national road on the lane of the
passenger bus. It was parked at the shoulder of the road with its left wheels still on the cemented highway
and the right wheels on the sand and gravel shoulder of the highway. It is common sense that the skewed
parking of the prime mover on the national road posed a serious risk to oncoming motorists. It was
incumbent upon Limbaga to take some measures to prevent that risk, or at least minimize it.

We are unable to agree with the CA conclusion it would have been dangerous and quite impossible to further
park the prime mover on the graveled shoulder of the road because the prime mover may tilt and the
bulldozer may fall off. The photographs taken after the incident show that it could have been possible for
Limbaga to park the prime mover completely on the shoulder of the national road without risk to oncoming
motorists. We agree with the RTC observation on this point, thus:

x x x The statement of Limbaga that he could not park the prime mover and trailer deeper
into the sand and gravel shoulder of the highway to his right because there were banana
plants is contradicted by the picture marked Exhibit F. The picture shows that there was ample
space on the shoulder. If defendant Limbaga was careful and prudent enough, he should have
the prime mover and trailer traveled more distance forward so that the bodies of the prime
mover and trailer would be far more on the shoulder rather than on the cemented highway
when they were parked. Although at the time of the incident, it was about 4:45 in the morning
and it was drizzling but there is showing that it was pitch dark that whoever travels along the
highway must be extra careful. If the Joana Paula bus swerved to the lane on which the Nissan
ice van was properly traveling, as prescribed by Traffic Rules and Regulations, it is because
the driver of the bus did not see at a distance the parked prime mover and trailer on the bus
proper lane because there was no warning signs of danger of any kind that can be seen from
a distance.[19]

Limbaga also failed to take proper steps to minimize the risk posed by the improperly parked prime
mover. He did not immediately inform his employer, private respondent Liberty Forest, Inc., that the prime
mover suffered two tire blowouts and that he could not have them fixed because he had only one spare
tire. Instead of calling for help, Limbaga took it upon himself to simply place banana leaves on the front and
rear of the prime mover to serve as warning to oncoming motorists. Worse, Limbaga slept on the prime
mover instead of standing guard beside the vehicle. By his own account, Limbaga was sleeping on the prime
mover at the time of the collision and that he was only awakened by the impact of the Nissan van and the
passenger bus on the prime mover.[20]

118
 Limbaga also admitted on cross-examination that it was his first time to drive the prime mover with
trailer loaded with a D-8 caterpillar bulldozer.[21] We find that private respondent Liberty Forest, Inc. was
utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle, such as a truck loaded with
a bulldozer, which required highly specialized driving skills. Respondent employer clearly failed to properly
supervise Limbaga in driving the prime mover.

The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the prime mover in
proper condition at the time of the collision. The prime mover had worn out tires. It was only equipped with
one spare tire. It was for this reason that Limbaga was unable to change the two blown out tires because
he had only one spare. The bulldozer was not even loaded properly on the prime mover, which caused the
tire blowouts.

All told, We agree with the RTC that private respondent Limbaga was negligent in parking the prime
mover on the national highway. Private respondent Liberty Forest, Inc. was also negligent in failing to
supervise Limbaga and in ensuring that the prime mover was in proper condition.

The case of Baliwag Transit, Inc. v. Court of Appeals is

inapplicable; Limbaga did not put lighted kerosene tin
cans on the front and rear of the prime mover.

Anent the absence of an early warning device on the prime mover, the CA erred in accepting the
bare testimony of Limbaga that he placed kerosene lighted tin cans on the front and rear of the prime
mover. The evidence on records belies such claim. The CA reliance on Baliwag Transit, Inc. v. Court of
Appeals[22] as authority for the proposition that kerosene lighted tin cans may act as substitute early warning
device is misplaced.

First, the traffic incident report did not mention any lighted tin cans on the prime mover or within
the immediate vicinity of the accident. Only banana leaves were placed on the prime mover. The report
reads:

VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No. 7788, with Plate No. LVA-
137, driven by one Temestocles Relova v. Antero, of legal age, married and a resident of San
Roque, Kitcharao, Agusan del Norte, while traveling along the National Highway, coming from
119
 the east going to the west direction, as it moves along the way and upon reaching Brgy.
Sumilihon, Butuan City to evade bumping to the approaching Nissan Ice Van with Plate No.
PNT-247, driven by one Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus
accidentally busideswept (sic) to the parked Prime Mover with Trailer loaded with
Bulldozer without early warning device, instead placing only dry banana leaves three (3)
meters at the rear portion of the Trailer, while failure to place at the front portion, and the
said vehicle occupied the whole lane. As the result, the Joana Paula Bus hit to the left edge
blade of the Bulldozer. Thus, causing the said bus swept to the narrow shouldering, removing
the rear four (4) wheels including the differential and injuring the above-stated twelve (12)
passengers and damaged to the right side fender above the rear wheel. Thus, causing damage
on it. While the Nissan Ice Van in evading, accidentally swerved to the left lane and
accidentally bumped to the front bumper of the parked Prime Mover with Trailer loaded with
Bulldozer. Thus, causing heavy damage to said Nissan Ice Van including the cargoes of the
said van.[23]

Second, SPO4 Pame, who investigated the collision, testified[24] that only banana leaves were placed
on the front and rear of the prime mover. He did not see any lighted tin cans in the immediate vicinity of
the collision.

Third, the claim of Limbaga that he placed lighted tin cans on the front and rear of the prime mover
belatedly surfaced only during his direct examination. No allegation to this effect was made by private
respondents in their Answer to the complaint for damages. Petitioners counsel promptly objected to the
testimony of Limbaga, thus:

ATTY. ROSALES:

Q. Now you mentioned about placing some word signs in front and at the rear of the prime
mover with trailer, will you please describe to us what this word signs are?

A. We placed a piece of cloth on tin cans and filled them with crude oil. And these tin cans
were lighted and they are like torches. These two lights or torches were placed in front
and at the rear side of the prime mover with trailer. After each torch, we placed banana
trunk. The banana trunk is placed between the two (2) torches and the prime mover,
both on the rear and on the front portion of the prime mover.

Q. How far was the lighted tin cans with wick placed in front of the prime mover.

ATTY. ASIS:

At this point, we will be objecting to questions particularly referring to the alleged tin cans as
some of the warning-sign devices, considering that there is no allegation to that effect in
the answer of the defendants. The answer was just limited to the numbers 4 & 5 of the
answer.And, therefore, if we follow the rule of the binding effect of an allegation in the
complaint, then the party will not be allowed to introduce evidence to attack jointly or
120
 rather the same, paragraph 5 states, warning device consisting of 3 banana trunks,
banana items and leaves were filed. He can be cross-examined in the point, Your Honor.

COURT:

Q. Put that on record that as far as this tin cans are concerned, the plaintiffs are interposing
continuing objections. But the Court will allow the question.[25]

We thus agree with the RTC that Limbaga did not place lighted tin cans on the front and rear of the
prime mover. We give more credence to the traffic incident report and the testimony of SPO4 Pame that
only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v. Court of Appeals[26] thus finds no
application to the case at bar.

The skewed parking of the prime mover was the

proximate cause of the collision.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred. More comprehensively, proximate cause is that cause acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom.[27]

There is no exact mathematical formula to determine proximate cause. It is based upon mixed
considerations of logic, common sense, policy and precedent. [28] Plaintiff must, however, establish a
sufficient link between the act or omission and the damage or injury. That link must not be remote or far-
fetched; otherwise, no liability will attach. The damage or injury must be a natural and probable result of
the act or omission. In the precedent-setting Vda. de Bataclan v. Medina,[29] this Court discussed the
necessary link that must be established between the act or omission and the damage or injury, viz.:

121
 It may be that ordinarily, when a passenger bus overturns, and pins down a passenger,
merely causing him physical injuries, if through some event, unexpected and extraordinary,
the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the vehicle. But in the
present case and under the circumstances obtaining in the same, we do not hesitate to hold
that the proximate cause of the death of Bataclan was the overturning of the bus, this for the
reason that when the vehicle turned not only on its side but completely on its back, the leaking
of the gasoline from the tank was not unnatural or unexpected; that the coming of the men
with a lighted torch was in response to the call for help, made not only by the passengers,
but most probably, by the driver and the conductor themselves, and that because it was very
dark (about 2:30 in the morning), the rescuers had to carry a light with them; and coming as
they did from a rural area where lanterns and flashlights were not available, they had to use
a torch, the most handy and available; and what was more natural than that said rescuers
should innocently approach the overturned vehicle to extend the aid and effect the rescue
requested from them. In other words, the coming of the men with the torch was to be
expected and was natural sequence of the overturning of the bus, the trapping of some of its
passengers bus, the trapping of some of its passengers and the call for outside help.

The ruling in Bataclan has been repeatedly cited in subsequent cases as authority for the proposition
that the damage or injury must be a natural or probable result of the act or omission. Here, We agree with
the RTC that the damage caused to the Nissan van was a natural and probable result of the improper parking
of the prime mover with trailer. As discussed, the skewed parking of the prime mover posed a serious risk
to oncoming motorists. Limbaga failed to prevent or minimize that risk. The skewed parking of the prime
mover triggered the series of events that led to the collision, particularly the swerving of the passenger bus
and the Nissan van.

Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages that resulted from
the skewed parking of the prime mover. Their liability includes those damages resulting from precautionary
measures taken by other motorist in trying to avoid collision with the parked prime mover. As We see it,
the passenger bus swerved to the right, onto the lane
of the Nissan van, to avoid colliding with the improperly parked prime mover. The driver of the Nissan van,
Ortiz, reacted swiftly by swerving to the left, onto the lane of the passenger bus, hitting the parked prime
mover. Ortiz obviously would not have swerved if not for the passenger bus abruptly occupying his vans
lane. The passenger bus, in turn, would not have swerved to the lane of the Nissan van if not for the prime
mover improperly parked on its lane. The skewed parking is the proximate cause of the damage to the
Nissan van.

In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court held that a similar
vehicular collision was caused by the skewed parking of a dump truck on the national road, thus:

122
 The conclusion we draw from the factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the accident. He was hurrying home that night
and driving faster than he should have been. Worse, he extinguished his headlights at or near
the intersection of General Lacuna and General Santos Streets and thus did not see the dump
truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate
Court that the legal and proximate cause of the accident and of Dionisios injuries was the
wrongful or negligent manner in which the dump truck was parked in other words, the
negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner
Carbonels negligence on the one hand and the accident and respondents injuries on the other
hand, is quite clear. Put in a slightly different manner, the collision of Dionisios car with the
dump truck was a natural and foreseeable consequence of the truck drivers negligence.

xxxx

We believe, secondly, that the truck drivers negligence far from being a passive and
static condition was rather an indispensable and efficient cause. The collision between the
dump truck and the private respondents car would in all probability not have occurred had
the dump truck not been parked askew without any warning lights or reflector devices. The
improper parking of the dump truck created an unreasonable risk of injury for anyone driving
down General Lacuna Street and for having so created this risk, the truck driver must be held
responsible. In our view, Dionisios negligence, although later in point of time than the truck
drivers negligence and, therefore, closer to the accident, was not an efficient intervening or
independent cause. What the Petitioner describes as an intervening cause was no more than
a foreseeable consequence of the risk created by the negligent manner in which the truck
driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to
private respondent Dionisio and others similarly situated not to impose upon them the very
risk the truck driver had created. Dionisios negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation in fact between the improper
parking of the dump truck and the accident, nor to sever the juris vinculum of liability. x x
x (Underscoring supplied)

We cannot rule on the proportionate or contributory

liability of the passenger bus, if any, because it was not a
party to the case; joint tortfeasors are solidarily liable.

The CA also faults the passenger bus for the vehicular collision. The appellate court noted that the
passenger bus was aware of the presence of the prime mover on its lane, but it still proceeded to occupy
the lane of the Nissan van. The passenger bus also miscalculated its distance from the prime mover when
it hit the vehicle.

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 We cannot definitively rule on the proportionate or contributory liability of the Joana Paula passenger
bus vis--vis the prime mover because it was not a party to the complaint for damages. Due process dictates
that the passenger bus must be given an opportunity to present its own version of events before it can be
held liable. Any contributory or proportionate liability of the passenger bus must be litigated in a separate
action, barring any defense of prescription or laches. Insofar as petitioner is concerned, the proximate cause
of the collision was the improper parking of the prime mover. It was the improper parking of the prime
mover which set in motion the series of events that led to the vehicular collision.

Even granting that the passenger bus was at fault, its fault will not necessarily absolve private
respondents from liability. If at fault, the passenger bus will be a joint tortfeasor along with private
respondents. The liability of joint tortfeasors is joint and solidary. This means that petitioner may hold either
of them liable for damages from the collision. In Philippine National Construction Corporation v. Court of
Appeals,[31] this Court held:

According to the great weight of authority, where the concurrent or successive

negligent acts or omission of two or more persons, although acting independently of each
other, are, in combination, the direct and proximate cause of a single injury to a third person
and it is impossible to determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have caused the entire
injury, or the same damage might have resulted from the acts of the other tort-feasor x x x.

In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the liability of joint
tortfeasors is joint and solidary, to wit:

It may be said, as a general rule, that negligence in order to render a person liable
need not be the sole cause of an injury. It is sufficient that his negligence, concurring with
one or more efficient causes other than plaintiffs, is the proximate cause of the injury.
Accordingly, where several causes combine to produce injuries, a person is not relieved from
liability because he is responsible for only one of them, it being sufficient that the negligence
of the person charged with injury is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not attributable to the person injured. It
is no defense to one of the concurrent tortfeasors that the injury would not have resulted
from his negligence alone, without the negligence or wrongful acts of the other concurrent
tortfeasors. Where several causes producing an injury are concurrent and each is an efficient
cause without which the injury would not have happened, the injury may be attributed to all
or any of the causes and recovery may be had against any or all of the responsible persons
although under the circumstances of the case, it may appear that one of them was more
culpable, and that the duty owed by them to the injured person was not the same. No actors
negligence ceases to be a proximate cause merely because it does not exceed the negligence
124
 of other actors. Each wrongdoer is responsible for the entire result and is liable as though his
acts were the sole cause of the injury.

There is no contribution between joint tortfeasors whose liability is solidary since both
of them are liable for the total damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting independently, are in combination with
the direct and proximate cause of a single injury to a third person, it is impossible to determine
in what proportion each contributed to the injury and either of them is responsible for the
whole injury. Where their concurring negligence resulted in injury or damage to a third party,
they become joint tortfeasors and are solidarily liable for the resulting damage under Article
2194 of the Civil Code. (Underscoring supplied)

All told, all the elements of quasi delict have been proven by clear and convincing evidence. The CA erred
in absolving private respondents from liability for the vehicular collision.

Final Note

It is lamentable that the vehicular collision in this case could have been easily avoided by
following basic traffic rules and regulations and road safety standards. In hindsight, private respondent
Limbaga could have prevented the three-way vehicular collision if he had properly parked the prime mover
on the shoulder of the national road. The improper parking of vehicles, most especially along the national
highways, poses a serious and unnecessary risk to the lives and limbs of other motorists and
passengers. Drivers owe a duty of care to follow basic traffic rules and regulations and to observe road
safety standards. They owe that duty not only for their own safety, but also for that of other motorists. We
can prevent most vehicular accidents by simply following basic traffic rules and regulations.

We also note a failure of implementation of basic safety standards, particularly the law on early
warning devices. This applies even more to trucks and big vehicles, which are prone to mechanical
breakdown on the national highway. The law, as crafted, requires vehicles to be equipped with triangular
reflectorized plates.[32] Vehicles without the required early warning devices are ineligible for
registration.[33] Vehicle owners may also be arrested and fined for non-compliance with the law.[34]

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 The Land Transportation Office (LTO) owes a duty to the public to ensure that all vehicles on the
road meet basic and minimum safety features, including that of early warning devices. It is most unfortunate
that We still see dilapidated and rundown vehicles on the road with substandard safety features. These
vehicles not only pose a hazard to the safety of their occupants but that of other motorists. The prime mover
truck in this case should not have been granted registration because it failed to comply with the minimum
safety features required for vehicles on the road.

It is, indeed, time for traffic enforcement agencies and the LTO to strictly enforce all pertinent laws
and regulations within their mandate.

WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated August 28, 2003 is
hereby SET ASIDE. The RTC decision dated August 7, 2001 is REINSTATED IN FULL.

SO ORDERED.

126
EN BANC

[G.R. No. 130068. October 1, 1998]

FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPELAS and PHILIPPINE PORTS
AUTHORITY, respondents.

[G.R. No. 130150. October 1, 1998]

MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY and FAR
EASTERN SHIPPING COMPANY, respondents.

DECISION
REGALADO, J.:

These consolidated petitions for review on certiorari seek in unison to annul and set aside the
decision[1] of respondent Court of Appeals of November 15, 1996 and its resolution [2] dated July 31, 1997
in CA-G.R. CV No. 24072, entitled Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping
Company, Senen C. Gavino and Manila Pilots Association. Defendants-Appellants, which affirmed with
modification the judgment of the trial court holding the defendants-appellants therein solidarily liable for
damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court, thus --

x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by
the Far Eastern Shipping Company (FESC for brevitys sake), arrived at the Port of Manila from Vancouver,
British Columbia at about 7:00 oclock in the morning. The vessel was assigned Berth 4 of the Manila
International Port, as its berthing space. Captain Roberto Abellana was tasked by the Philippine Port
Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the appellant
Manila Pilots Association (MPA for brevitys sake) to conduct docking maneuvers for the safe berthing of the
vessel to Berth No. 4.

Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master
of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the
vessel and its cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila
International Port. The sea was calm and the wind was ideal for docking maneuvers.

When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the
pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier,
Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The
left anchor, with two (2) shackles were dropped. However, the anchor did not take hold as expected. The
speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference
ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion
about, Kavankov assured Gavino that there was nothing of it.

After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who
was then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed
that the anchor did not take hold. Gavino thereafter gave the full-astern code. Before the right anchor and
127
additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained damage too. (Exhibit 7-Far Eastern
Shipping).Kavankov filed his sea protest (Exhibit 1-Vessel). Gavino submitted his report to the Chief Pilot
(Exhibit 1-Pilot) who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).

Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the
rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25
(Exhibits D and E).[3]

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General,
filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far
Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots Association, docketed as Civil Case No.
83-14958,[4] praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual
and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the
defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual
damages and the cost of suit.[5]
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a
commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel to the pier,
at the port of destination, for his negligence? And (2) Would the owner of the vessel be liable likewise if the
damage is caused by the concurrent negligence of the master of vessel and the pilot under a compulsory
pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that
it found no employer-employee relationship existing between herein private respondents Manila Pilots
Association (MPA, for short) and Capt. Gavino.[6] This being so, it ruled instead that the liability of MPA is
anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No.
15-65,[7] and accordingly modified said decision of the trial court by holding MPA, along with its co-
defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for
such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent
(75%) of its prescribed reserve fund.[8]
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of
Appeals and both of them elevated their respective plaints to us via separate petitions for review
on certiorari.
In G.R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the
Court of Appeals seriously erred:

1. in not holding Senen C. Gavino and the Manila Pilots Association as the parties solely responsible for the
resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the matter.

2. in holding that the master had not exercised the required diligence demanded from him by the
circumstances at the time the incident happened;

3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a
strong and convincing evidence that the amount is clearly exorbitant and unreasonable;

4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and

5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in
the event that it be held liable.[9]

Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the
incident, it was a compulsory pilot, Capt. Gavino, who was in command and had complete control in the
navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the
128
command and navigation of a ship and his orders must be obeyed in all respects connected with her
navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not
the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when
he failed to countermand or overrule the orders of the pilot because he did not see any justifiable reason to
do so. In other words, the master cannot be faulted for relying absolutely on the competence of the
compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot. [10]
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on
the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino,
the harbor pilot, and Capt. Viktor Kabankov,*shipmaster of MV Pavlodar, as the basis of their solidary liability
for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt.
Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV
Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International
Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel
and the pier - Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of
the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over
and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino
during the berthing procedure.[11]
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later
transferred to the Third Division, MPA, now as petitioner in this case, avers the respondent court's errors
consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the
liability of MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt.
Gavino who, as held by respondent court, is only a member, not an employee, thereof. There being no
employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective
exercise of profession by its members nor be considered a joint tortfeasor as to be held jointly and severally
liable.[12] It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65
and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which,
being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional
organization or an administrative order which bears no provision classifying the nature of the liability of MPA
for the negligence its member pilots.[13]
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services
since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is not joined as a
petitioner in this case since his whereabouts are unknown.[14]
FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of
law or administrative orders as basis for ascertaining the liability of MPA, and expressed full accord with the
appellate court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the
disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability.[15]
On the other hand, public respondent PPA, likewise through representations by the Solicitor General,
assumes the same supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling
of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its
application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to
MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These
provisions are clear and ambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an
administrative agency pursuant to delegated legislative authority to fix details to implement the law, it is
legally binding and has the same statutory force as any valid statute. [16]
Upon motion[17] by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R.
No. 130068.[18]
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the
conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure and
disappointment of this Court.

129
 Section 2, Rule 42 of the 1997 Rules of Civil Procedure [19] incorporates the former Circular No. 28-91
which provided for what has come to be known as the certification against forum shopping as an additional
requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other
requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals
or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxxxxxxxx

The petitioner shall also submit together with the petition a certification under oath that he has not therefore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he
must state the status of the same; and if he should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or
any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (Italics supplied.)

For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such
petition shall contain a sworn certification against forum shopping as provided in the last paragraph of
Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert
A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC
through counsel on August 22, 1997 of a verified motion for extension of time to file its petition for thirty
(30) days from August 28, 1997 or until September 27, 1997. [20] Said motion contained the following
certification against forum shopping[21] signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING

I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues
in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we
undertake to report that fact within five (5) days therefrom to this Honorable Court.

This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time
bearing a "verification and certification against forum-shopping" executed by one Teodoro P. Lopez on
September 24, 1997,[22] to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING

in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules of Civil
Procedure

I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:

1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in
this case.

2. That I have caused the preparation of this Petition for Review on Certiorari.

130
3. That I have read the same and the allegations therein contained are true and correct based on the records
of this case.

4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues
in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other
tribunal or agency, that I should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to
report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the
Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the same date by
registered mail to counsel for FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in his verification
accompanying said petition dutifully revealed to the Court that--
xxxxxxxxx

3. Petitioner has not commenced any other action or proceeding involving the same issues in his Honorable
Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best
of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern
Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of
time to file Petition for Review by Certiorari filed sometime on August 18, 1997. If undersigned counsel will
come to know of any other pending action or claim filed or pending he undertakes to report such fact within
five (5) days to this Honorable Court.[24] (Italics supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and
taking judicial notice of the average period of time it takes local mail to reach its destination, by reasonable
estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September
26, 1997, it would already have received a copy of the former and would then have knowledge of the
pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC
to inform the Court of that fact through its certification against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068
is defective and could have been a ground for dismissal thereof.
Even assuming that FESC has not yet received its copy of MPA's petition at the time it filed its own
petition and executed said certification, its signatory did state "that if I should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any
other tribunal or agency, I undertake to report the fact within five (5) days therefrom in this Honorable
Court."[25] Scouring the records page by page in this case, we find that no manifestation concordant with
such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to
bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence
of such other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two
cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an
unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro
forma compliance therewith but apparently without full comprehension of and with less than faithful
commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of
court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. [26] He
is an officer of the court exercising a privilege which is indispensable in the administration of
justice.[27] Candidness, especially towards the courts, is essential for the expeditious administration of
justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before
them.[28] Candor in all dealings is the very essence of honorable membership in the legal profession.[29] More
specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends
of justice.[30] It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the
speedy and efficient administration of justice.[31] Being an officer of the court, a lawyer has a responsibility
in the proper administration of justice. Like the court itself, he is an instrument to advance its ends -- the
131
speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of
final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical
or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary
task of assisting in the speedy and efficient administration of justice. [32]
Sad to say, the members of said law firm sorely failed to observe their duties as responsible members
of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers
of the Court to promote respect for law and for legal processes.[33] We cannot allow this state of things to
pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil
Procedure had just taken effect, the Court treated infractions of the new Rules then with relative liberality
in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal
provisions of Circular No. 28-91 which remain operative provides, inter alia:

3. Penalties.-
xxxxxxxxx

(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of
court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be
subjected to disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to be
executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the counsel
whose professional services have been retained for a particular case, who is in the best position to know
whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification against
forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the
requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for
dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file petition n G.R. No.
130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a
superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere
motion for extension, we shall disregard such error. Besides, the certification subsequently executed by
Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier
pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty.
Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules of
informing the Court of the pendency of another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration of
justice. They should be used to achieve such end and not to derail it.[34]
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General
at the time, the same legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor
General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the
facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time
to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership
in the OSG -- from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before the
comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that
no further extensions shall be granted, and personal service on the Solicitor General himself of the resolution
requiring the filing of such comment before the OSG indulged the Court with the long required comment on
July 10, 1998.[35] This, despite the fact that said office was required to file its comment way back on
November 12, 1997.[36] A closer scrutiny of the records likewise indicates that petitioner FESC was not even
furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was

132
inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party.[37] The
OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days,
before the comment was finally filed.[38] And while it properly furnished petitioner MPA with a copy of its
comment, it would have been more desirable and expedient in this case to have furnished its therein co-
respondent FESC with a copy thereof, if only as a matter of professional courtesy. [39]
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes
deplorable disservice to the tax-paying public and can only be categorized as censurable inefficiency on the
part of the government law office. This is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the initiative of filing a motion for
consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background
of the case and if only to make its job easier by having to prepare and file only one comment. It could not
have been unaware of the pendency of one or the other petition because, being counsel for respondent in
both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal of the
petition for failure otherwise.[40]
Besides, in G.R. 130068, it prefaces its discussions thus --

Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the
respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court,
which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine
Ports Authority and Far Eastern Shipping Co., Respondents.[41]
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision
to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of
Appeals and Philippine Ports Authority."[42]

We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its
cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of the
Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case
file the necessary pleadings. The OSG, be needlessly extending the pendency of these cases through its
numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably
fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional
Responsibility apply with equal force on lawyers in government service in the discharge of their official
tasks.[43] These ethical duties are rendered even more exacting as to them because, as government counsel,
they have the added duty to abide by the policy of the State to promote a high standard of ethics in public
service.[44] Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform
and discharge its duties with the highest degree of professionalism, intelligence and skill [45] and to extend
prompt, courteous and adequate service to the public.[46]
Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings
filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to reverse
and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both
petitions beg for validation and updating of well worn maritime jurisprudence. Thereby, we shall
write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits
of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to
Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85,[47] which provides that:

SEC. 8. Compulsory Pilotage Service.- For entering a harbor and anchoring thereat, or passing through
rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting
133
from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory
pilotage. x x x

In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and
the master have been specified by the same regulation in this wise:

SEC. 11. Control of vessels and liability for damage. - On compulsory pilotage grounds, the Harbor Pilot,
providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and
property at ports due to his negligence or fault. He can only be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to
prevent or minimize damage.

The Master shall retain overall command of the vessel even on pilotage grounds whereby he can
countermand or overrule the order or command of the Harbor Pilot on board. In such event, any damage
caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be
the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse
against said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority
in appropriate proceedings in the light of the facts and circumstances of each particular case.

SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The duties and responsibilities of the
Harbor Pilot shall be as follows:

xxxxxxxxx

f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot
thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease
at the moment the Master neglects or refuses to carry out his order.

Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I
thereof for the responsibilities of pilots:

Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel from the time he assumes control
thereof until he leaves it anchored free from shoal; Provided, That his responsibility shall cease at the
moment the master neglects or refuses to carry out his instructions.

xxxxxxxxx

Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under their control when requested to
do so by the master of such vessels.

I. G.R. No. 130068

Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino
solely responsible for the damages caused to the pier. It avers that since the vessel was under compulsory
pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the
docking maneuvers, then the latter should be responsible for damages caused to the pier. [48] It likewise
holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise
the required diligence demanded by the circumstances.[49]
We start our discussion of the successive issues bearing in mind the evidentiary rule in American
jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object
such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship
to go forward and produce some evidence on the presumptive matter. The moving vessel must show that
it was without fault or that the collision was occasioned by the fault of the stationary object or was the result
134
of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which
the circumstances admit and show that in each, they did all that reasonable care required.[50] In the absence
of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a
fixed object and makes a prima facie case of fault against the vessel.[51] Logic and experience support this
presumption:

The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in
the ordinary course of things unless the vessel has been mismanaged in some way. It is not sufficient for
the respondent to produce witnesses who testify that as soon as the danger became apparent
everything possible was done to avoid an accident. The question remains, How then did the collision
occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too
little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision
would occur.[52]

The task, therefore, in these cases is to pinpoint who was negligent - the master of the ship, the harbor
pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports,
or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide
vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels
on the high seas.[53] However, the term "pilot" is more generally understood as a person taken on board at
a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. [54]
Under English and American authorities, generally speaking, the pilot supersedes the master for the
time being in the command and navigation of the ship, and his orders must be obeyed in all matters
connected with her navigation. He becomes the master pro hac vice and should give all directions as to
speed, course, stopping and reversing, anchoring, towing and the like. And when a licensed pilot is employed
in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or
to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the
vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation
even on localities where pilotage is compulsory.[55]
It is quite common for states and localities to provide for compulsory pilotage, and safety laws have
been enacted requiring vessels approaching their ports, with certain exceptions, to take on board pilots duly
licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted
with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the
dangers of navigation.[56]
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes
the rules of compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District,
viz. --

PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking
in any pier or shifting from one berth to another shall be compulsory, except Government vessels and
vessels of foreign governments entitled to courtesy, and other vessels engaged solely in river or harbor
work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions
of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose
optional pilotage is allowed under these regulations.

Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the universally
accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and
knowledge in respect to navigation in the particular waters over which his license extends superior to and
more to be trusted than that of the master.[57] A pilot should have a thorough knowledge of general and
local regulations and physical conditions affecting the vessel in his charge and the waters for which he is
licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care,
but must have and exercise the ordinary skill and care demanded by the circumstances, and usually shown

135
by an expert in his profession. Under extraordinary circumstances, a pilot must exercise extraordinary
care.[58]
In Atlee vs. The Northwestern Union Packet Company,[59] Mr. Justice Miller spelled out in great detail
the duties of a pilot:

x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the
topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers,
he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks,
towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is
of little use to him. He must know where the navigable channel is, in its relation to all these external objects,
especially in the night. He must also be familiar with all dangers that are permanently located in the course
of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels or barges. All this he must
know and remember and avoid. To do this, he must be constantly informed of the changes in the current of
the river, of the sand-bars newly made, of logs or snags, or other objects newly presented, against which
his vessel might be injured.

xxxxxxxxx

It may be said that this is exacting a very high order of ability in a pilot. But when we consider the
value of the lives and property committed to their control, for in this they are absolute masters, the high
compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations
and renewal of licenses, this very class of skill, we do not think we fix the standard too high.

Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such
strict standard of care and diligence required of pilots in the performance of their duties. Witness this
testimony of Capt. Gavino:
Court:
You have testified before that the reason why the vessel bumped the pier was because the anchor
was not released immediately or as soon as you have given the order. Do you remember having
stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that is that anchor was released
immediately at the time you gave the order, the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part because there was a commotion between
the officers who are in charge of the dropping of the anchor and the captain. I could not understand
their language, it was in Russian, so I presumed the anchor was not dropped on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxxxxxxxx
Q You are not even sure what could have caused the incident. What factor could have caused the
incident?
A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold,
that was the cause of the incident, your Honor.[60]
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the
possibly injurious consequences his commands as pilot may have. Prudence required that he, as pilot, should

136
have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court
-

Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should
have seen to it that the order was carried out, and he could have done this in a number of ways, one of
which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course, Captain
Gavino makes reference to a commotion among the crew members which supposedly caused the delay in
the execution of the command. This account was reflected in the pilot's report prepared four hours later,
but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the
command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much
weight or consideration to this portion of Gavino's testimony."[61]

An act may be negligent if it is done without the competence that a reasonable person in the position
of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to
another.[62] Those who undertake any work calling for special skills are required not only to exercise
reasonable care in what they do but also possess a standard minimum of special knowledge and ability. [63]
Every man who offers his services to another, and is employed, assumes to exercise in the employment
such skills he possesses, with a reasonable degree of diligence. In all these employments where peculiar
skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing
the degree of skill commonly possessed by others in the same employment, and if his pretensions are
unfounded he commits a species of fraud on every man who employs him in reliance on his public
profession.[64]
Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances
of the case, a reasonable and prudent man would take, and the omission of that care constitutes
negligence.[65] Generally, the degree of care required is graduated according to the danger a person or
property attendant upon the activity which the actor pursues or the instrumentality which he uses. The
greater the danger the greater the degree of care required. What is ordinary under extraordinary of
conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the
more imminent the danger, the higher the degree of care.[66]
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was
indeed negligent in the performance of his duties:
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x x x As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped
at 8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,
Gavino must have realized that the anchor did not hit a hard object and was not clawed so as to reduce the
momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same
speed. Gavino failed to react. At 8:32 o'clock, the two (2) tugboats began to push the stern part of the
vessel from the port side but the momentum of the vessel was not contained. Still, Gavino did not react. He
did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the
vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor
was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully
the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took
Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no
longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently,
Gavino miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum
of the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even (haphazard).
Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only one
(1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object
in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was
dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself
from the quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that the incident
was caused by "force majeure" is barren of factual basis.

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xxxxxxxxx

The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot
unless he passed the required examination and training conducted then by the Bureau of Custom, under
Customs Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative
Order 63-85. Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall
be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves
it anchored free from shoal: Provided, that his responsibility shall cease at the moment the master neglects
or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and
undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to
his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence
(Reese versus Philadelphia & RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]

This affirms the findings of the trial court regarding Capt. Gavino's negligence:

This discussion should not however, divert the court from the fact that negligence in manuevering the
vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have
long familiarized himself with the depth of the port and the distance he could keep between the vessel and
port in order to berth safely.[68]

The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no less responsible for
the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence constitutes
negligence.
While it is indubitable that in exercising his functions a pilot-is in sole command of the ship[69] and
supersedes the master for the time being in the command and navigation of a ship and that he becomes
master pro hac vice of a vessel piloted by him,[70] there is overwhelming authority to the effect that the
master does not surrender his vessel to the pilot and the pilot is not the master. The master is still in
command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may
and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated
and the circumstances may require the master to displace a compulsory pilot because of incompetency or
physical incapacity. If, however, the master does not observe that a compulsory pilot is incompetent or
physically incapacitated, the master is justified in relying on the pilot, but not blindly. [71]
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise
with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is
concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution
taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are
attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready
to go at the pilot's order.[72]
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his
duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining
watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the
vessel and to the pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct'?
A No sir, I did not intervene up to the very moment when the vessel was docked.
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138
 Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking?
A Yes sir, our ship touched the pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to understand that your ship bumped the
pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxxxxxxxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel, to the port,
did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was trying to
cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand that there was nothing irregular
in the docking of the ship?
A Yes sir, during the initial period, of the docking, there was nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that
happened?
A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was not timely?
A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles,
there could not have been an incident.
Q So you could not precisely tell the court that the dropping of the anchor was timely because you are
not well aware of the seabed, is that correct?
A Yes sir, that, is right.
xxxxxxxxx
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so
that the vessel could not travel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further
moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?

139
 A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to the
pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the
ship?
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot
and he should be more aware as to the depths of the harbor and the ground and I was confident in
his actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the vessel before the incident happened, were
you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the bridge, you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be informed of the movements of the ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino would hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot
and that, in your opinion, you can only intervene if the ship is placed in imminent danger, is that
correct?
A That is right, I did say that.
Q In your observation before the incident actually happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that because you did not intervene and
because you believed that it was your duty to intervene when the vessel is placed in imminent danger
to which you did not observe any imminent danger thereof, you have not intervened in any manner
to the command of the pilot?
A That is right, sir.
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140
 Q Assuming that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering
the vessel. whose command will prevail, in case of imminent danger to the vessel?
A I did not consider the situation as having an imminent danger. I believed that the vessel will dock
alongside the pier.
Q You want us to understand that you did not see an imminent danger to your ship, is that what you
mean?
A Yes sir, up to the very last moment, I believed that there was no imminent danger.
Q Because of that, did you ever intervene in the command of the pilot?
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo,
is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making his
commands?
A I was close to him, I was hearing his command and being executed.
Q And that you were also alert for any possible mistakes he might commit in the maneuvering of the
vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would supersede his own order?
A In that case, I should take him away from his command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge,
on his familiarity of the seabed and shoals and other surroundings or conditions under the sea, is
that correct?
A Yes sir, that is right.
xxxxxxxxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you were
alerted that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not,
there was no danger to the ship?

141
 A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken hold the seabed but not done (sic), as
you expected, you already were alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore
agreed with him in his failure to take necessary precaution against the eventuality that the anchor
will not hold as expected?
Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the ground as expected?
A Yes sir, that is my opinion.[73]
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in
imminent danger.
A No, at that time, the vessel was not in imminent danger, sir."[74]
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's
anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's command which should be followed-at that moment
until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledge of the seabed which are vital or decisive
in the safety (sic) bringing of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel
rest(s) upon the Captain, the Master of the vessel.

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 Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing
of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was all along in conformity with the orders you
gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the
course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of
any instance that the Master of the vessel did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing
of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of
the docking that the MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier. I think, the anchor was not holding,
so I immediately ordered to push the bow at a fourth quarter, at the back of the vessel in order to
swing the bow away from the pier and at the same time, I ordered for a full astern of the engine." [75]
These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful
relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:

For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the
berthing space, it is undisputed that the master of the vessel had the corresponding duty to countermand
any of the orders made by the pilot, aid even maneuver the vessel himself, in case of imminent danger to
the vessel and the port.

In fact, in his testimony, Capt. Kavankov admitted that all throughout the man(eu)vering procedures
he did not notice anything was going wrong, and even observed that the order given to drop the anchor,
was done at the proper time. He even ventured the opinion that the accident occurred because the anchor
failed to take hold but that this did not alarm him because there was still time to drop a second anchor.

Under normal circumstances, the above-mentioned facts would have caused the master of a vessel to
take charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov
chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation.

xxxxxxxxx

It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no less
responsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures and was
privy to every move the latter made, as well as the vessel's response to each of the commands. His choice
to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert he continued

143
to relinquish control of the vessel to Gavino, shows indubitably that he was not performing his duties with
the diligence required of him and therefore may be charged with negligence along with defendant Gavino. [76]

As correctly affirmed by the Court of Appeals -

We are in full accord with the findings and disquisitions of the Court a quo.

In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the
incident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying the
commands or orders of Gavino to the crewmembers-officers of the vessel concerned. He was thus fully
aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably,
Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the
vessel.Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to the
sea floor, the claws of the anchor did not hitch on to any hard object in the seabed. The momentum of the
vessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel,
although a little bit arrested, continued (sic) the vessel going straightforward with its bow towards the port
(Exhibit "A-1"). There was thus a need for the vessel to move "full-astern" and to drop the other anchor
with another shackle or two '(2), for the vessel to avoid hitting the pier. Kavankov refused to act even as
Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel
was already about twenty (20) meters away from the pier when Gavino gave the 'full-astern" order. Even
then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the
competence and plan of Gavino. While the "full-astern" maneuver momentarily arrested the momentum of
the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but
relay the commands of Gavino. Inscrutably, then, Kavankov was negligent.

xxxxxxxxx

The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It
has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the
Appellant FESC is likewise liable for the damage sustained by the Appellee."[77]

We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which
much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals
adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship
China vs. Walsh,[78] that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master
has the same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his
discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:

Nor are we satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While
the pilot doubtless supersedes the master for the time being in the command and navigation of the ship,
and his orders must be obeyed in all matters connected with her navigation, the master is not wholly
absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case
he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her
navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are
attentive to their duties.

xxx (N)otwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to
abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge
(notwithstanding there is a pilot on board) for the benefit of the owners. x x x that in well conducted ships
the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him

144
from every obligation to attend to the safety of the vessel; but that, while the master sees that his officers
and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of
the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every
precaution, but to insist upon, such being taken."[79] (Italics for emphasis.)

In Jure vs. United Fruit Co.,[80] which, like the present petitions, involved compulsory pilotage, with a
similar scenario where at and prior to the time of injury, the vessel was in the charge of a pilot with the
master on the bridge of the vessel beside said pilot, the court therein ruled:

The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by
law to be accepted, is in discharge of his functions. x x x It is the duty of the master to interfere in cases of
the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases
of great necessity . The master has the same power to displace the pilot that he has to remove any
subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence
to support findings that plaintiff's injury was due to the negligent operation of the Atenas, and that the
master of that vessel was negligent in failing to take action to avoid endangering a vessel situated as the
City of Canton was and persons or property thereon.

A phase of the evidence furnished support for the inferences x x x that he negligently failed to suggest
to the pilot the danger which was disclosed, and means of avoiding such danger; and that the master's
negligence in failing to give timely admonition to the pilot proximately contributed to the injury complained
of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the master,
giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a
vessel is not Without fault in acquiescing in conduct of a pilot which involves apparent and avoidable danger,
whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property
thereon or on shore. (Italics ours.)

Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory
pilot was deemed to be negligent, since, in the words of the court, "he was in a position to exercise his
superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly
negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should
have directed the pilot to reduce his speed as required by the local governmental regulations. His failure
amounted to negligence and renders the respondent liable." [81] (Italics supplied.) Though a compulsory pilot
might be regarded as an independent contractor, he is at all times subject to the ultimate control of the
ship's master.[82]
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to
navigate it, if the master observes that the pilot is incompetent or physically incapable, then it is the duty
of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose
where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed,
or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go,
into danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master
to intervene so as to save the ship from danger, the master should have acted accordingly.[83] The master
of a vessel must exercise a degree of vigilance commensurate with the circumstances. [84]
Inasmuch as the matter of negligence is a question of fact,[85] we defer to the findings of the trial court,
especially as this is affirmed by the Court of Appeals.[86] But even beyond that, our own evaluation is that
Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous situation
should have spurred him into quick and decisive action as master of the ship. In the face of imminent or
actual danger, he did not have to wait for the happenstance to occur before countermanding or overruling
the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is
precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower
courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as
negligent as Capt. Gavino.

145
 In general, a pilot is personally liable for damages caused by his own negligence or default to the owners
of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the
performance of duty constitutes a maritime tort.[87]At common law, a shipowner is not liable for injuries
inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. [88] The exemption from
liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a pilot is
responsible only for his own personal negligence, he cannot be held accountable for damages proximately
caused by the default of others,[89] or, if there be anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming
benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault, and that
there was no fault on the part of the officers or crew, which might have been conducive to the damage. The
fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. The
parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are
not under necessity to look to the pilot from whom redress is not always had for compensation. The owners
of the vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover
the amount as well as they can against him. It cannot be maintained that the circumstance of having a pilot
on board, and acting in conformity to his directions operate as a discharge of responsibility of the
owners.[90] Except insofar as their liability is limited or exempted by statute, the vessel or her owner are
liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the
vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the
vessel are bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more,
liable for his negligent act.[91]
In the United States, the owners of a vessel are not personally liable for the negligent acts of a
compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable to the
vessel and it may be held liable therefor in rem. Where, however, by the provisions of the statute the pilot
is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the vessel,
there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole
cause of the injury, but the negligence of the master or crew contributed thereto, the owners are
liable.[92] But the liability of the ship in rem does not release the pilot from the consequences of his own
negligence.[93] The rationale for this rule is that the master is not entirely absolved of responsibility with
respect to navigation when a compulsory pilot is in charge.[94]
By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we
declare that our rulings during the early years of this century in City of Manila vs. Gambe, [95] China
Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al.[97] have withstood the proverbial
test of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control of a
vessel, and not the owners, must be held responsible for an accident which was solely the result of the
mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to
equip the vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated
from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless
deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to
pilots and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone
which was the proximate cause of the collision. The Court could not but then rule that -

The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators
in passing through the strait in question, without a substantial reason, was guilty of negligence, and that
negligence having been the proximate cause of the damages, he is liable for such damages as usually and
naturally flow therefrom. x x x.

x x x (T)he defendant should have known of the existence and location of the rock upon which the
vessel struck while under his control and management. x x x.

Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the
Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the order's of the pilot in
146
the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a
pilot is "x x x responsible for a full knowledge of the channel and the navigation only so far as he can
accomplish it through the officers and crew of the ship, and I don't see that he can be held responsible for
damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to
obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be
concurrently negligent and thus share the blame for the resulting damage as Joint tortfeasors,[98] but only
under the circumstances obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be the
sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other
than plaintiff's, is the proximate cause of the injury.Accordingly, where several causes combine to produce
injuries, a person is not relieved from liability because he is responsible for only one of them, it being
sufficient that the negligence of the person charged with injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that such cause is not attributable to the person
injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from
his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor.[99] Where
several causes producing an injury are concurrent and each is an efficient cause without which the injury
would not have happened, the injury may be attributed to all or any of the causes and recovery may be had
against any or all of the responsible persons although under the circumstances of the case, it may appear
that one of them was more culpable, and that the duty owed by them to the injured person was not the
same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his
acts were the sole cause of the injury.[100]
There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable
for the total damage. Where the concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination the direct and proximate cause of a single injury
to a third person, it is impossible to determine in what proportion each contributed to the injury and either
of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage
to a third party, they become joint tortfeasors and are solidarity liable for the resulting damage under Article
2194[101] of the Civil Code.[102]
As for the amount of damages awarded by the trial court, we find the same to be reasonable. The
testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded
on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already included in
this -P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well
as the corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That was why the
contract was decreased, the real amount was P1,124,627.40 and the final one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.

147
 Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and
reconstruction in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year
period that the damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there was
change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same
point. You have to redesign the driving of the piles. We cannot drive the piles at the same point
where the piles are broken or damaged or pulled out. We have to redesign, and you will note that in
the reconstruction, we redesigned such that it necessitated 8 piles.
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity. The area is
already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not that have
sustained the same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:

With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount
of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark
case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would not have occurred if proper care was used.

Secondly, the various estimates and plans justify the cost of the port construction price. The new structure
constructed not only replaced the damaged one but was built of stronger materials to forestall the possibility
of any similar accidents in the future.

The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual
damages caused by the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern
Shipping, Capt. Senen Gavino and Manila Pilots Association are solidarity liable to pay this amount to
plaintiff.[104]

The Solicitor General rightly commented that the adjudicated amount of damages represents the
proportional cost of repair and rehabilitation of the damaged section of the pier. [105]
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for
all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. As a
general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural
and proximate damages caused to persons or property by reason of her negligent management or
navigation.[106]
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only
because it appears to be a mere afterthought, being tardily raised only in this petition, but also because
148
there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable, although perhaps
it is a modest pier by international standards. There was, therefore, no error on the part of the Court of
Appeals in dismissing FESC's counterclaim.

II. G.R. No. 130150

This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarity
liable with its member pilot, Capt. Gavino, in the absence of employer-employee relationship and in applying
Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA and
Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:

"PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there shall be created and maintained
by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00
for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through
acts or omissions of its members while rendered in compulsory pilotage service. In Manila, the reserve fund
shall be P2,000.00 for each pilot.

PAR. XXVIII.-- A pilots' association shall not be liable under these regulations for damage to any vessel, or
other property, resulting from acts of a member of an association in the actual performance of his duty for
a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood
that if the association is held liable for an amount greater than the amount above-stated, the excess shall
be paid by the personal funds of the member concerned.

PAR. XXXI.-- If a payment is made from the reserve fund of an association on account of damages caused
by a member thereof, and he shall have been found at fault, such member shall reimburse the association
in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of
his dividends shall be retained each month until the full amount has been returned to the reserve fund.

PAR. XXXIV. - Nothing in these regulations shall relieve any pilots' association or members thereof,
individually or collectively, from civil responsibility for damages to life or property resulting from the acts of
members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timely amended this
applicable maritime regulation, state:

Article IV

SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall organize themselves into a Pilots'
Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the rules
and regulations promulgated by the Authority. These By-Laws shall be submitted not later than one (1)
month after the organization of the Pilots' Association for approval by the General Manager of the
Authority. Subsequent amendments thereto shall likewise be submitted for approval.

SEC. 25. Indemnity Insurance and Reserve Fund--

a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00
each member to cover in whole or in part any liability arising from any accident
resulting in damage to vessel(s), port facilities and other properties and/or injury to
persons or death which any member may have caused in the course of his performance
of pilotage duties. x x x.
149
 b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer
for any part of the liability referred to in the immediately preceding paragraph which
is left unsatisfied by the insurance proceeds, in the following manner:

1) Each pilot in the Association shall contribute from his own account an amount
of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund
shall not be considered part of the capital of the Association nor charged as an expense
thereof.

2) Seventy-five percent (75%) of the reserve fund shall be set aside for use, in the
payment of damages referred to above incurred in the actual performance of pilots'
duties and the excess shall be paid from the personal funds of the member concerned.

xxxxxxxxx

5) If payment is made from the reserve fund of an Association on account of damage

caused by a member thereof who is found at fault, he shall reimburse the Association
in the amount so paid as soon as practicable; and for this purpose, not less than
twenty-five percentum (25%) of his dividend shall be retained each month until the
full amount has been returned to the reserve fund. Thereafter, the pilot involved shall
be entitled to his full dividend.

6) When the reimbursement has been completed as prescribed in the preceding paragraph,
the ten percentum (10%) and the interest withheld from the shares of the other pilots
in accordance with paragraph (4) hereof shall be returned to them.

c) Liability of Pilots' Association -- Nothing in these regulations shall relieve any Pilots'
Association or members thereof, individually or collectively, from any civil,
administrative and/or criminal responsibility for damages to life or property resulting
from the individual acts of its members as well as those of the Association's employees
and crew in the performance of their duties.

The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC,
MPA and Capt. Gavino, correctly based MPA's liability not on the concept of employer-employee relationship
between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65:

The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant
Gavino was not and has never been an employee of the MPA but was only a member thereof. The Court a
quo, it is noteworthy,, did not state the factual basis on which it anchored its finding that Gavino was the
employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employer-employee
relationship to exist the confluence of the following elements must be established: (1) selection and
engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power
to control the employees with respect to the means and method by which the work is to be performed (Ruga
versus NLRC, 181SCRA 266).

xxxxxxxxx

The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found
and declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra,
in tandem with the by-laws of the MPA."[107]

There being no employer-employee relationship, clearly Article 2180[108] of the Civil Code is inapplicable
since there is no vicarious liability of an employer to speak of. It is so stated in American law, as follows:

150
The well-established rule is that pilot associations are immune to vicarious liability for the tort of their
members. They are not the employer of their members and exercise no control over them once they take
the helm of the vessel. They are also not partnerships because the members do not function as agents for
the association or for each other. Pilots' associations are also not liable for negligently assuring, the
competence of their members because as professional associations they made no guarantee of the
professional conduct of their members to the general public.[109]

Where under local statutes and regulations, pilot associations lack the necessary legal incidents of
responsibility, they have been held not liable for damages caused by the default of a member
pilot.[110] Whether or not the members of a pilots' association are in legal effect a copartnership depends
wholly on the powers and duties of the members in relation to one another under the provisions of the
governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the
master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual member depend largely upon the constitution,
articles or by-laws of the association, subject to appropriate government regulations.[111]
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots'
association in light of existing positive regulation under Philippine law. The Court of Appeals properly applied
the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just
being consistent with its finding of the non-existence of employer-employee relationship between MPA and
Capt. Gavino precludes the application of Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability
as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead
to the conclusion that MPA is solidarity liable for the negligence of its member pilots, without prejudice to
subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly
so states, or when the law or the nature of the obligation requires solidarity. Plainly, Customs Administrative
Order No. 15-65, which as an implementing rule has the force and effect of law, can validly provide for
solidary liability. We note the Solicitor General's comment hereon, to wit:

x x x Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set
out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing
provisions of substantive law, is legally binding and receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the
legislature."[112]

MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner
MPA "from liability beyond seventy-five percent (75%) of Reserve Fund" is unnecessary because the liability
of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent
(75%) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of
the erring pilot and subject to reimbursement in case of a finding of fault by the member concerned. This is
clarified by the Solicitor General:

Moreover, contrary to petitioners pretensions, the provisions of Customs Administrative Order No. 15-65 do
not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per
centum (75%) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the
entire reserve fund required to be maintained by the pilots' association to answer (for) whatever liability
arising from the tortious act of its members. And even if the association is held liable for an amount greater
than the reserve fund, the association may not resist the liability by claiming to be liable only up to seventy-
five per centum (75%) of the reserve fund because in such instance it has the right to be reimbursed by
the offending member pilot for the excess."[113]

WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the
assailed decision of the Court of Appeals is AFFIRMED in toto.
151
 Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert
A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of
its undertakings under the Rules shall be dealt with more severely.
The original members of the legal team of the Office of the Solicitor General assigned to this case,
namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED
and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed
filing of required pleadings shall also be dealt with more stringently.
The Solicitor General is DIRECTED to look into the circumstances of this case and to adopt provident
measures to avoid a repetition of this incident and which would ensure prompt compliance with orders of
this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly
administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named herein in the
Office of the Bar Confidant.
SO ORDERED.

152
G.R. No. 176946 November 15, 2010

CONSTANCIA G. TAMAYO, JOCELYN G. TAMAYO, and ARAMIS G. TAMAYO, collectively known as

HEIRS OF CIRILO TAMAYO, Petitioners,
vs.
ROSALIA ABAD SEÑORA, ROAN ABAD SEÑORA, and JANETE ABAD SEÑORA, Respondents.

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court. Petitioners
Constancia G. Tamayo (Constancia), Jocelyn G. Tamayo, and Aramis G. Tamayo are assailing the
Decision1 dated March 22, 2006 and the Resolution2 dated February 6, 2007 of the Court of Appeals (CA) in
CA-G.R. CV No. 63171. The CA affirmed, with modification, the decision 3 of the Regional Trial Court (RTC)
of Parañaque City in Civil Case No. 96-0339.

The factual antecedents, as found by the RTC and affirmed by the CA, are as follows:

On September 28, 1995, at about 11:00 a.m., Antonieto M. Señora (Señora), then 43 years old and a police
chief inspector of the Philippine National Police (PNP),4 was riding a motorcycle and crossing the intersection
of Sucat Road towards Filipinas Avenue, when a tricycle allegedly bumped his motorcycle from behind. As a
result, the motorcycle was pushed into the path of an Isuzu Elf Van (delivery van), which was cruising along
Sucat Road and heading towards South Superhighway. The delivery van ran over Señora, while his
motorcycle was thrown a few meters away. He was recovered underneath the delivery van and rushed to
the Medical Center of Parañaque, where he was pronounced dead on arrival. 5

The tricycle was driven by Leovino F. Amparo (Amparo), who testified that it was the delivery van that
bumped Señora’s motorcycle. He said that he did not see how the motorcycle could have been hit by his
tricycle since he was looking at his right side, but when he heard a sound, he looked to his left and saw
Señora already underneath the delivery van. He also said that when he was brought to the police station
for investigation, he brought his tricycle to disprove the claim of the delivery van driver by showing that his
tricycle sustained no damage.6

The delivery van, on the other hand, was driven by Elmer O. Polloso (Polloso) and registered in the name
of Cirilo Tamayo (Cirilo). While trial was ongoing, Cirilo was suffering from lung cancer and was bedridden.
His wife, petitioner Constancia, testified on his behalf. Constancia narrated that she and her husband were
managing a single proprietorship known as Tamayo and Sons Ice Dealer. She testified that it was Cirilo who
hired their drivers. She claimed that, as employer, her husband exercised the due diligence of a good father
of a family in the selection, hiring, and supervision of his employees, including driver Polloso. Cirilo would
tell their drivers not to drive fast and not to be too strict with customers.7

One of Cirilo’s employees, Nora Pascual (Pascual), also testified. She alleged that she was working as auditor
and checker for Tamayo and Sons Ice Dealer. She testified that she and another employee were with Polloso
in the delivery van at the time of the incident. She narrated that, while they were traversing Sucat Road,
she saw a motorcycle going towards Filipinas Avenue. Pascual said that, when they reached the intersection
of Sucat Road and Filipinas Avenue, Polloso blew the horn. She then saw a tricycle bump the rear of the
motorcycle. She said that Polloso stopped the delivery van. When they alighted, they saw the motorcycle
already under the delivery van. Pascual further testified that Polloso was a careful driver who drove the
truck slowly and followed traffic rules. She also said that Cirilo called for a meeting before the delivery trucks
left and told his drivers to be careful in their driving and to be courteous to their customers. 8

On March 2, 1999, the court rendered a decision, the dispositive portion of which reads:

153
WHEREFORE, defendants Leovino F. Amparo, Elmer O. Polloso and Cirilo Tamayo are found liable jointly and
severally to plaintiffs and ordered to pay the latter the amounts of ₱105,100.00 for actual damages,
₱50,000.00 for loss of life, ₱1,152,360.00 for loss of earnings and ₱30,000.00 for attorney’s fees.

SO ORDERED.9

The RTC found Polloso guilty of negligence. It held that Polloso failed to slow down or come to a full stop at
the intersection, causing the delivery van to run over Señora. The RTC also found that the truck was traveling
fast on the outer lane, the lane customarily considered to be for slow-moving vehicles.10

The RTC held Amparo similarly guilty of negligence. It found that the tricycle had bumped into Señora’s
motorcycle and pushed it towards the truck’s path. It said that the statement to that effect made by witness
Pascual was made immediately after the accident and could be considered a "spontaneous reaction to a
startling occurrence."11

However, the RTC said that, even if the tricycle bumped into Señora’s motorcycle from behind, the collision
could have been avoided had Polloso observed the elementary rule of driving that one must slow down, or
come to a full stop, when crossing an intersection.12

In addition, the RTC found Cirilo to be solidarily liable for Señora’s death.1avvphil It held that Constancia’s
testimony was hearsay and unsupported by any documentary evidence. The RTC also brushed aside
Pascual’s testimony because, as checker and auditor, she had no participation in hiring the company’s
drivers. Thus, Cirilo was held vicariously liable for the acts and omissions of Polloso. 13

Finally, in determining the liability for loss of income, the RTC modified the formula in determining life
expectancy, 2/3 x (80 – age of victim at the time of death). The RTC considered the retirement age of the
members of the PNP, which was 55 years old. Thus, the formula that the RTC used was 2/3 x (55 – age of
the victim at the time of death).

On appeal, the CA affirmed the RTC’s decision, but modified the finding on the deceased’s net earning
capacity. The CA used the formula:

Net earning capacity = life expectancy x gross annual income less

living expenses14

with life expectancy computed as 3/4

2/3 x (80 - age of deceased)15

and living expenses fixed at half of the victim’s gross income.

Thus, Señora’s net earning capacity was computed to be ₱1,887,847.00.16

The CA disposed of the case in this wise:

WHEREFORE, the Decision dated March 2, 1999 rendered by the Regional Trial Court of Parañaque City,
Branch 257 is AFFIRMED with the MODIFICATION as to the amount representing loss of earnings to
₱1,887,847.00

SO ORDERED.17

Petitioners’ Motion for Reconsideration was denied in a Resolution dated February 6, 2007. 18

154
Petitioners are now before this Court, assailing the CA’s Decision and Resolution. They raise the issues of
who was negligent in the incident and what was the proximate cause of Señora’s death. 19 In particular, they
submit the following Assignment of Errors:

THE HONORABLE COURT OF APPEALS GR[IE]VOUSLY ERRED IN HOLDING DEFENDANT ELMER

POLLOSO NEGLIGENT UNDER THE OBTAINING CIRCUMSTANCES.

II

THE HONORABLE COURT OF APPEALS MANIFESTLY ERRED IN DECLARING THE JOINT NEGLIGENCE
OF DEFENDANTS LEOVINO AMPARO AND ELMER POLLOSO TO BE THE PROXIMATE CAUSE OF THE
DEATH OF ANTONIETO SEÑORA.

III

THE HONORABLE COURT OF APPEALS ERRED IN ADJUDGING DEFENDANT CIRILO TAMAYO

SOLIDARILY LIABLE FOR THE DEATH OF ANTONIETO SEÑORA. 20

The petition has no merit and is hereby denied.

As a rule, the jurisdiction of this Court in cases brought to it from the CA is limited to the review and revision
of errors of law allegedly committed by the appellate court.21

The issues raised by petitioners are questions of fact necessarily calling for a reexamination and reevaluation
of the evidence presented at the trial.

A question of fact arises when the doubt or difference pertains to the truth or falsehood of alleged facts, or
when the query necessarily solicits calibration of the whole evidence, considering the credibility of witnesses,
the existence and relevance of specific circumstances, and their relation to one another and to the whole
situation.22

The Court has consistently ruled that findings of fact of trial courts are entitled to great weight and should
not be disturbed, except for strong and valid reasons, because the trial court is in a better position to
examine the demeanor of witnesses while testifying. It is not a function of this Court to analyze and weigh
evidence all over again.23 The factual findings of the CA affirming those of the trial court are final and
conclusive;24 hence, they are binding on this Court.

The Court will not disturb such factual findings unless there are compelling or exceptional reasons.25 No
such reasons exist in this case.

The Court holds that the RTC and the CA correctly found Polloso negligent.

To be credible, testimonial evidence should not only come from the mouth of a credible witness but it should
also be credible, reasonable, and in accord with human experience. 26 It should be positive and probable
such that it is difficult for a rational mind not to find it credible.27

If, as Pascual testified, the truck stopped when the tricycle bumped the motorcycle from behind, 28 then
there would have been no accident. Even if the motorcycle was nudged into the path of the truck, as she
claimed, there would have been no impact if the truck itself was not moving, and certainly not an impact
that would pin the motorcycle’s driver under the truck and throw the motorcycle a few meters away.1avvphi1

155
The Court likewise finds that the CA did not err in upholding Cirilo’s solidary liability for Señora’s death. The
RTC correctly disregarded the testimonies of Cirilo’s wife and his employee, leaving no other evidence to
support the claim that he had exercised the degree of diligence required in hiring and supervising his
employees.

Finally, the Court sustains the award for loss of earning capacity by the CA.

The award of damages for loss of earning capacity is concerned with the determination of losses or damages
sustained by respondents, as dependents and intestate heirs of the deceased. This consists not of the full
amount of his earnings, but of the support which they received or would have received from him had he not
died as a consequence of the negligent act. Thus, the amount recoverable is not the loss of the victim’s
entire earnings, but rather the loss of that portion of the earnings which the beneficiary would have
received.29

Indemnity for loss of earning capacity is determined by computing the net earning capacity of the victim. 30

The CA correctly modified the RTC’s computation. The RTC had misapplied the formula 31 generally used by
the courts to determine net earning capacity, which is, to wit:

Net Earning Capacity = life expectancy x (gross annual income - reasonable and necessary living expenses).

Life expectancy shall be computed by applying the formula (2/3 x [80 - age at death]) adopted from the
American Expectancy Table of Mortality or the Actuarial of Combined Experience Table of Mortality.32 Hence,
the RTC erred in modifying the formula and using the retirement age of the members of the PNP instead of
"80."

On the other hand, gross annual income requires the presentation of documentary evidence for the purpose
of proving the victim’s annual income.33 The victim’s heirs presented in evidence Señora’s pay slip from the
PNP, showing him to have had a gross monthly salary of ₱12,754.00. 34 Meanwhile, the victim’s net income
was correctly pegged at 50% of his gross income in the absence of proof as regards the victim’s living
expenses.35

Consequently, the Court sustains the award of ₱1,887,847.00 as damages for loss of earning capacity. All
other aspects of the assailed Decision are affirmed.

WHEREFORE, the foregoing premises considered, the Decision dated March 22, 2006 and the Resolution
dated February 6, 2007 of the Court of Appeals in CA-G.R. CV No. 63171 are hereby AFFIRMED.

SO ORDERED.

156
G.R. No. L-21512 August 31, 1966

PROSPERO SABIDO and ASER LAGUNDA, petitioners,

vs.
CARLOS CUSTODIO, BELEN MAKABUHAY CUSTODIO and THE HONORABLE COURT OF
APPEALS,respondents.

Sabido, Sabido and Associates for petitioners.

Ernesto S. Tengco for respondents.

CONCEPCION, C.J.:

Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of Appeals,
affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas Bus Co., Nicasio
Mudales, and herein petitioners. Prospero Sabido and Aser Lagunda, to jointly and severally indemnify Belen
Makabuhay Custodio and her son, Agripino Custodio Jr., in the sum of P6,000 and to pay the costs of the
suit.

The facts are set forth in the decision of the Court of Appeals from which we quote:

Upon a careful study and judicious examining of the evidence on record, we are inclined to concur in
the findings made by the trial court. Here is how the Court a quo analyzed the facts of this case:

"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by
Nicasio Mudales and belonging to Laguna-Tayabas Bus Company, and the other driven by
Aser Lagunda and owned by Prospero Sabido, going in opposite directions met each other in
a road curve. Agripino Custodia a passenger of LTB bus, who was hanging on the left side as
truck was full of passengers was sideswiped by the track driven by Aser Lagunda. As a result,
Agripino Custodio was injured and died (Exhibit A).

"It appears clear from the evidence that Agripino Custodio was hanging on the left side of the
LTB bus. Otherwise, were he sitting inside the truck, he could not have been struck by the six
by six truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to hang on
the side of the truck, makes the defendant Laguna Tayabas Bus Company liable for damages.
For certainly its employees, who are the driver and conductor were negligent. They should
not have allowed Agripino Custodio to ride their truck in that manner.

"To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio
Mudales. From the testimony, however, of Belen Makabuhay, Agripino Custodio's widow, we
can deduce that Aser Lagunda was equally negligent as Nicasio Mudales. Belen testified that
the 6 x 6 truck was running fast when it met the LTB Bus. And Aser Lagunda had time and
opportunity to avoid the mishap if he had been sufficiently careful and cautious because the
two trucks never collided with each other. By simply swerving to the right side of the road,
the 6 x 6 truck could have avoided hitting Agripino Custodio. It is incredible that the LTB was
running on the middle of the road when passing a curve. He knows it is dangerous to do so.
We are rather of the belief that both trucks did not keep close to the right side of the road so
they sideswiped each other and thus Agripino Custodio was injured and died. In other words,
both drivers must have drive in their trucks not in the proper lane and are, therefore, both
reckless and negligent.

"We might state by way of additional observations that the sideswiping of the deceased and his two
fellow passengers took place on broad daylight at about 9:30 in the morning of June 9, 1955 when
the LTB bus with full load to passengers was negotiating a sharp curve of a bumpy and sliding
downward a slope, whereas the six by six truck was climbing up with no cargoes or passengers on
board but for three helpers, owner Sabido and driver Lagunda (tsn. 308-309, Mendoza). Under the
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 above-stated condition, there exists strong persuasion to accept what Belen Makabuhay and Sofia
Mesina, LTB passengers, had testified to the effect that the 6 x 6 cargo truck was running at a fast
rate of speed (tsn. 15, 74, 175 Mendoza). From the lips of no less than driver Lagunda himself come
the testimonial admission that the presence of three hanging passengers located at the left side of
the bus was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet
despite the existence of a shallow canal on the right side of the road which he could pass over with
ease, Lagunda did not care to exercise prudence to avert the accident simply because to use his own
language the canal "is not a passage of trucks."

Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded that the
Laguna-Tayabas Bus Co. — hereinafter referred to as the carrier — and its driver Nicasio Mudales (none of
whom has appealed), had violated the contract of carriage with Agripino Custodio, whereas petitioners
Sabido and Lagunda were guilty of a quasi delict, by reason of which all of them were held solidarity liable
in the manner above indicated.

Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the negligence of
the carrier and its driver; (2) that petitioners were not guilty of negligence in connection with the matter
under consideration; (3) that petitioners cannot be held solidarily liable with the carrier and its driver; and
(4) that the complaint against petitioners herein should be dismissed.

With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its driver were
clearly guilty of negligence for having allowed Agripino Custodio to ride on the running board of the bus, in
violation of Section 42 of Act No. 3992, and that this negligence was the proximate cause of Agripino's
death. It should be noted, however, that the lower court had, likewise, found the petitioners guilty of
contributory negligence, which was as much a proximate cause of the accident as the carrier's negligence,
for petitioners' truck was running at a considerable speed, despite the fact that it was negotiating a sharp
curve, and, instead of being close to its right side of the road, said truck was driven on its middle portion
and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on its
running board.1äwphï1.ñët

The views of the Court of Appeals on the speed of the truck and its location at the time of the accident are
in the nature of findings of fact, which we cannot disturb in a petition for review by certiorari, such as the
one at bar. At any rate, the correctness of said findings is borne out by the very testimony of petitioner
Lagunda to the effect that he saw the passengers riding on the running board of the bus while the same
was still five (5) or seven (7) meters away from the truck driven by him. Indeed, the distance between the
two (2) vehicles was such that he could have avoided sideswiping said passengers if his truck were not
running at a great speed.

Although the negligence of the carrier and its driver is independent, in its execution, of the negligence of
the truck driver and its owner, both acts of negligence are the proximate cause of the death of Agripino
Custodio. In fact, the negligence of the first two (2) would not have produced this result without the
negligence of petitioners' herein. What is more, petitioners' negligence was the last, in point of time, for
Custodio was on the running board of the carrier's bus sometime before petitioners' truck came from the
opposite direction, so that, in this sense, petitioners' truck had the last clear chance.

Petitioners contend that they should not be held solidarily liable with the carrier and its driver, because the
latter's liability arises from a breach of contract, whereas that of the former springs from a quasi delict. The
rule is, however, that

According to the great weight of authority, where the concurrent or successive negligent acts or
omission of two or more persons, although acting independently of each other, are, in combination,
the direct and proximate cause of a single injury to a third person, and it is impossible to determine
in what proportion each contributed to the injury, either is responsible for the whole injury, even
though his act alone might not have caused the entire injury, or the same damage might have
resulted from the acts of the other tort-feasor ... . (38 Am. Jur. 946, 947.)

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Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioners herein. It is so
ordered.

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